Mancini and Hodges

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANCINI & HODGES

[2013] FCCA 1392

Catchwords:
FAMILY LAW – De facto relationship – de facto Wife’s poor health – negative non-superannuation asset pool – only financial resource de facto Husband’s superannuation – lengthy relationship.

Legislation:

Family Law Act1975, s.75(2)

Clives v Clives (2009) 40 Fam LR 273
C v C (2005) FLC 93-220
Doherty & Doherty (1996) FLC 92-652
AJO v GRO (2005) 33 Fam LR 134
Semperton v Semperton (2013) 47 Fam LR 626
Stanford v Stanford (2012) 247 CLR 108

Applicant:

MS MANCINI

Respondent:

MR HODGES

File Number:

CAC 414 of 2012

Judgment of:

Judge Neville

Hearing date:

3 July 2013

Date of Last Submission:

3 July 2013

Delivered at:

Canberra

Delivered on:

3 July 2013

REPRESENTATION

Solicitor/Advocate for the Applicant:

Mr D Farrar

Solicitors for the Applicant:

Farrar Gesini Dunn, Canberra

Counsel for the Respondent:

In Person

Solicitors for the Respondent:

N/A

ORDERS

The Respondent pay to the Applicant the sum of $400 per week by way of spouse maintenance, as set out in Order 2 of the Orders dated 11 April 2013, and:
(a)Payments are to be due from the date of these Orders and weekly thereafter;
(b)Payment of amounts due are to be withheld from monies payable by the (omitted) Pty Ltd to the Respondent, and paid to the Applicant or into such bank account as she may from time to time nominate. (omitted) Pty Ltd shall be entitled to withhold $5 from the payment on account of their administrative costs; and
(c)Payment of maintenance pursuant to this Order will be indexed to increase annually in accordance with the consumer price index (All Groups) for Canberra as published by the (omitted)Australian Bureau of Statistics, the amount of any increase to equal the percentage increase in that index between the last quarter prior to the anniversary of this Order, and the same quarter of the preceding year.
(a)The Respondent pay to the Applicant the sum of $35,701.07, being the sum of $30,600 referred to in Order 1 made by this Court on 11 April 2013, together with arrears under Order 2 of that date, up to the date of this Order.
(b)Payment of the amount referred to in 2(a) of these orders will be made within 28 days, failing which the Registrar of this Court issue a Third Party Debt Notice in the terms of the Notice that is attached hereto as Annexure “A”.
The Respondent pay, and indemnify the Applicant, against liability for any money owing by the parties jointly (or by either of them individually) at the date of these Orders, to the (omitted) Bank including any sum owed by them or either of them to that bank consequent upon the sale of the farm property at (omitted).
The Respondent is to pay, within 42 days of these Orders:
(a)The sum of $5,451.72 to (omitted);
(b)The sum of $690.85 to (omitted) Council;
(c)The sum of $2,297.79 to (omitted) Pty Ltd, previously trading as (omitted);
(d)The sum of $11,915.38 to Mr M;
(e)The sum of $770 to (omitted);
(f)The sum of $2,400 to Mr B;
The Respondent indemnify the Applicant against each of the liabilities mentioned in the preceding Order 4, above.
In accordance with section 90MT(1)(b) of the Family Law Act 1975:
(a)The Applicant is entitled to be paid a specified percentage of each splittable payment out of the Respondent's interest in the (omitted) Fund employer superannuation (member account number (omitted)) ("the (omitted) Fund");
(b)The Respondent's entitlement (and the entitlement of such other person to whom a splittable payment be made) to payments out of the Respondent's interest in the (omitted) Fund is correspondingly reduced;
The specified percentage for the purposes of Order 6 above is 87%;
Orders 6 and 7 have effect from the operative time and the operative time is four days after service of this Order upon the Trustee of the (omitted) Fund ("the (omitted) Trustee");
(omitted) Trustee shall do all acts and things and sign all such documents as may be necessary to:
(a)Calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement created by Orders 6 and 7; and
(b)Pay the entitlement whenever a splittable payment becomes payable out of the Respondent's interest in the (omitted) Fund.
In accordance with section 90MT(1)(b) of the Family Law Act 1975:
(a)The Applicant is entitled to be paid a specified percentage of each splittable payment, within the meaning of s90ME of the Family Law Act 1975, out of the Respondent's interest in the (omitted) Superannuation ("the (omitted)");
(b)The Respondent's entitlement (and the entitlement of such other person to whom a splittable payment be made) to payments out of the Respondent's interest in the (omitted) is correspondingly reduced;
The specified percentage for the purposes of Order 10 above is 87%;
Orders 10 and 11 have effect from the operative time and the operative time is four days after service of this Order upon the (omitted) Superannuation, the Trustee of the (omitted) ("the (omitted) Trustee").
(omitted) Trustee shall do all acts and things and sign all such documents as may be necessary to:
(a)Calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement created by Order 15 and 16; and
(b)Pay the entitlement whenever a splittable payment becomes payable out of the Respondent's interest in the (omitted) Fund.
Except as otherwise provided in these Orders:
(a)The Applicant and Respondent each be, as against the other, the sole legal and beneficial owners of all items of property currently in their respective names, or where there is no legal title, currently in their respective possession; and
(b)Each of the Applicant and Respondent is to pay, and indemnify the other against, any liability in that party’s name, or encumbering any item of property to which that party is entitled pursuant to these Orders.
The Respondent pay the Applicant's costs, fixed at the sum of $2,500, on or before 31 August 2013.

AND BY CONSENT, IT IS FURTHER ORDERED THAT:

The Respondent transfer to the Applicant all of his interest in the Nissan (model omitted) motor vehicle currently in the possession of the Applicant.
(a)The Respondent is to lodge his income tax return for the financial year ending 30 June 2013 on or before 31 August 2013.
(b)The Respondent pay to the Applicant, within 24 hours of receiving same, 100% of any tax return received by him for the financial year ending 30 June 2013.
(a)In the event the amount specified by Order 16 above is less than $7,800, then within 7 days of receiving his tax return, in addition to the tax return itself, the Respondent pay to the Applicant a sum equal to the difference between the tax return and $7,800;
(b)If the amount specified in Order 16 is greater than the payout figure of the lease debt relating to the Nissan (model omitted) motor vehicle in the possession of the Applicant, then any surplus will be a credit towards monies due by the Respondent to the Applicant pursuant to Order 2.
Until such time as the Respondent has complied with Orders 16 and 17 above, he is to pay, and indemnify the Applicant against liability for, all lease payments and insurance payments with respect to the Nissan (model omitted) motor vehicle in the possession of the Applicant.
From such time as the Respondent has complied with Order 16 and 17 above, the Applicant is to pay, and indemnify the Respondent against liability for all outgoings, including insurance premiums, with respect to the Nissan (model omitted) motor vehicle in the possession of the Applicant.
The Respondent is to notify the Applicant within 48 hours of securing employment through any agency other than (omitted) Pty Ltd.

IT IS NOTED that publication of this judgment under the pseudonym Mancini & Hodges is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT CANBERRA

CAC 414 of 2012

MS MANCINI

Applicant

And

MR HODGES

Respondent

REASONS FOR JUDGMENT

Brief reasons were delivered at the conclusion of the trial held on 3^rd July 2013. There was, at that time, much reference to documents and submissions, notably filed on behalf of the Applicant, being adopted or accepted and incorporated into the reasons. Those matters have now been set out in full in the reasons that follow, which have otherwise been revised from the transcript.
This matter concerns resolution of a claim for spousal maintenance and for property settlement between the parties, who were never married but who were in a de facto relationship for approximately 18 years. There were no children from the relationship.[1] The Applicant Wife is aged 57 years; the Respondent Husband is aged 53 years. Both parties have children from other relationships, some of whom, it is acknowledged, lived with the parties for some, or at various, times during their relationship.
[1] Although we are dealing with a de facto relationship, for ease of reference I will refer to the parties as “Wife” and “Husband.”
The Wife has significant health issues to which she attests and which are supported by relevant medical evidence, in particular from a report from her treating cardiologist, Dr A (Exhibit A). The Applicant’s only income is her invalid superannuation pension and social security disability pension.
The self-represented Husband earns not insignificant income as an (occupation omitted) with the (omitted), but who also says that (a) that (employer omitted) is phasing out the (omitted) that is his field of expertise/experience, and (b) his contract is coming to its end with little or no prospect of re-employment either with the (omitted) or elsewhere because of his (in his view) narrow area of software expertise.
As will be seen in detail below, the actual contest between the parties is really quite narrow in circumstances where the non-superannuation property pool is ‘negative’ with significant debts, and the only major ‘positive asset’ being the Husband’s superannuation. For example, the Wife seeks an order that she obtain 100% of the Husband’s superannuation; he seeks an order that the Wife have 75% of his superannuation; the Court ultimately ordered that she have a splitting order that provided her with 87% of the Husband’s superannuation.[2]
[2] In the course of a further directions hearing on 16^th May 2013, Mr Hodges noted a number of times his attempts to settle the matter by offering the Wife 100% of his superannuation. Obviously the Court should not have been advised of any relevant detail regarding settlement discussions. I have had no regard to Mr Hodges’ comments made on 16^th May.
There are some modest debts which, to a significant degree, the Husband has agreed to pay. These debts exclude a large mortgage debt still owed to the (omitted) Bank (“the Bank”).
There is also an issue of the Husband’s non-payment of spousal maintenance, which had been previously ordered by the Court in April 2012. That non-payment has resulted in the Wife seeking enforcement of that debt by way of a third-party debt notice.
Finally, the Wife seeks an order in relation to on-going spousal maintenance.
There were some matters that were agreed in the course of the trial. For example, the Wife has possession of a motor vehicle that was registered in the Husband’s name. It was agreed that it would be transferred into the Wife’s name. The Husband also agreed to pay out the “balloon payment” on that vehicle at the end of its lease.
Further, it was acknowledged that personal debts of each of the parties would remain the responsibility of the party who incurred them, and that Mr Hodges would lodge an outstanding tax return by the end of August 2013.[3]
[3] For example, see the discussion at Transcript (3^rd July 2013) pp.79-81. Hereafter, references to this transcript will be simply “T” followed by the page number.
Neither of the parties [as yet] has been pursued by the (omitted) Bank for a shortfall in the mortgage after a farm was sold. That shortfall was agreed to be in the order of $240,000.[4]
[4] See, for example, the discussion at T 5-6.
In the course of giving ex tempore reasons I noted that it was a very rare case where one party secures close to everything of what he or she had sought. However, this is very close to such a case. This is so because the evidence that has been put before the Court by one side (the Wife), and the significant lack of evidence by the other side (the Husband), except for some slight amendments that are sought by the Applicant, in my view, supports the orders as sought by her. Those orders apply to both property and to spousal maintenance.
I might add that, prior to the hearing, there was a somewhat tortuous number of attempts both to engage the Husband in a forthright way in the proceedings and, most importantly, to provide relevant documents to the Wife’s solicitors.[5] I note below a snapshot of the procedural history.
[5] Among other places, see the brief discussion at Transcript (16^th May 2013) p.8-9 & 10-12.
In the course of the same ex tempore reasons I also noted that it was a very rare case where a court can, or should, in effect adopt – with very modest amendment - submissions that are made by one or other of the parties. However, because of (a) the more detailed evidence by the de facto Wife and the quite limited evidence provided by the de facto Husband, and (b) the comprehensive written submissions on the Wife’s behalf, giving every allowance for Mr Hodges being a self-represented litigant and the [understandable] modesty of his submissions, the submissions that have been provided on behalf of the Applicant de facto Wife, in my view, more than adequately detail the reasons why the Court would or should make the orders sought by the Applicant. Set out later in these reasons are those submissions as amended and revised.
These reasons proceed as follows: (a) procedural history; (b) the orders sought by the parties; (c) table of assets & liabilities; (d) evidence; (e) the submissions of the parties; (f) consideration and resolution.

A. Procedural History

The Wife filed an Initiating Application in March 2012. On 2^nd April 2012 orders were made for the filing of ‘response’ material, which duly occurred. At this early stage, and until December 2012, Mr Hodges was legally represented.
Among other orders made on 5^th April 2012 was that the Husband pay the Wife “the sum of $900.00 per week, such sums to be categorised later in the proceedings.” Also in the orders of this date, $300 of the $900 was to be paid each week to the (omitted) Bank in relation to the mortgage debt over the parties’ property at (omitted), NSW. Various other orders were made by consent on that date.
The matter then went to a conciliation conference on 19^th April 2012. The Bench sheet for that date notes that the property matter was ‘settled in principle.’ The matter was then adjourned a number of times by the Registrar (but without reference to my Chambers). The matter next came before the Court on 11^th December 2012 at which time it was fixed for hearing on 3^rd July 2013.
On 9^th April 2013, the Wife filed an Application in a Case which sought orders, among other things, that the Husband pay the Wife $30,600 as spousal maintenance arrears, weekly spousal maintenance of $413, the Husband to pay lease payments on a specified vehicle and to provide various, particularised documents by way of formal discovery. The spousal maintenance arrears were calculated by reference to the order made on 5^th April 2012 and the Husband’s non-payment of funds pursuant to that order for the period from 13^th August 2012 until 5^th April 2013.
Leaving to one side matters of service, which are dealt with later in these reasons, orders were made on 11^th April as sought by the Wife in her Application in a Case. However, it is important immediately to note three matters in relation to those orders.
First, there was no appearance by Mr Hodges on 11^th April, the matter having been called. Secondly, the orders made on 11^th April did not become operative and were conditional upon a ‘grace period’ of 14 days and whether or not Mr Hodges filed any application during that period. Thirdly, the matter was adjourned for further directions on 16^th May.
Further, and as noted in more detail later in these reasons, as the Wife submitted at trial, (a) Mr Hodges was served with the Application in a Case prior to its hearing via email at an address that is still used by Mr Hodges,[6] (b) with leave having been granted to Mr Hodges’s to file an application within 14 days of 11^th April, no application was ever filed by him, (c) on each of the two subsequent appearances by the Husband in Court no application as made to vary, suspend or vacate the orders of 11^th April 2013 seeking to enforce the April 2012 orders for spousal maintenance and recoup the balance outstanding under those orders.[7]
[6] At the hearing on 11^th April 2013, service of the Application in a Case on Mr Hodges by email was confirmed by the solicitor for Ms Mancini. Further, in the course of the hearing, the Court confirmed that personal service on Mr Hodges of the Application, together with orders made, was required. See Transcript (11^th April 2013) pp.1 & 5 respectively.
[7] See the Wife’s submissions set out at T 7.
On 6^th May an affidavit was filed on behalf of the Wife in relation to service of the Application in a Case and its supporting documents on Mr Hodges.
On 16^th May, the Wife was represented; Mr Hodges attended on his own behalf. On that occasion, and contrary to Mr Hodges’ understanding that the orders of 11^th April ‘no longer applied’, the only orders made related to a timetable for the provision of outstanding documents, primarily by the Husband who continued not to comply with earlier orders regarding provision of documents and stated simply that he ‘hasn’t done it.’[8] The matter was listed for further mention on 3^rd June.
[8] See the “discussion” at T (16^th may 2013) at pp.10 ff.
On 3^rd June, again the Wife was represented and Mr Hodges appeared on his own behalf. Given the difficulties in the Wife obtaining documents from the Husband, this mention date was essentially to see whether previously ordered documents had been produced and whether there was any [other] impediment to the trial proceeding on 3^rd July. The pre-trial direction hearing on 20^th June was vacated.

B. Orders Sought

The orders sought by the Applicant de facto Wife are as follows:
Final Order in Relation to Spouse Maintenance
1. That the Respondent pay to the Applicant the sum of $413 per week by way of spouse maintenance, as set out in Order 2 of the Orders dated 11 April 2013, and:
a. Payments are to be due from the date of these Orders and weekly thereafter;
b. Payment of amounts due are to be withheld from monies payable by the (omitted) Pty Ltd to the Respondent, and paid to the Applicant or into such bank account as she may from time to time nominate. (omitted) Pty Ltd shall be entitled to withhold $5 from the payment on account of their administrative costs; and
c. Payment of maintenance pursuant to this Order will be indexed to increase annually in accordance with the consumer price index (All Groups) for Canberra as published by the Australian Bureau of Statistics, the amount of any increase to equal the percentage increase in that index between the last quarter prior to the anniversary of this Order, and the same quarter of the preceding year.
2. Lump Sum
a. That the Respondent pay to the Applicant the sum of $35,701.07, being the sum of $30,600 referred to in Order 1 made by this Court on 11 April 2013, together with arrears under Order 2 of that date, up to the date of this Order.
b. Payment of the amount referred to as 2(a) hereof will be made within 7 days, failing which the Registrar of this Court issue a Third Party Debt Notice in the terms of the Notice that is attached hereto.
Nissan
3. That the Husband transfer to the Wife all of his interest in the Nissan (model omitted) motor vehicle currently in the possession of the Wife.
4. That the Husband pay, and indemnify the Wife against liability for, all lease payments and insurance payments with respect to the Nissan (model omitted) motor vehicle in the possession of the Wife.
(omitted) Bank Indemnity
5. That the Husband pay, and indemnify the Wife, against liability for any money owing by the parties jointly (or by either of them individually) at the date of these Orders, to the (omitted) Bank including any sum owed by them or either of them to that bank consequent upon the sale of the farm property at (omitted).
Other Debts
6. That the Husband is to pay, within 42 days of these Orders:
a. The sum of $5,451.72 to (omitted);
b. The sum of $690.85 to (omitted) Council;
c. The sum of $2,297.79 to (omitted) Pty Ltd, previously trading as (omitted);
d. The sum of $11,915.38 to Mr M;
e. The sum of $770 to (omitted);
f. The sum of $2,400 to Mr B;
g. The sum of $10,000 to Ms M.
7. That the Husband indemnify the Wife against each of the liabilities mentioned in the preceding Order.
(omitted) Superannuation Split
8. That in accordance with section 90MT(1)(b) of the Family Law Act 1975:
a. The Applicant is entitled to be paid a specified percentage of each splittable payment out of the Respondent's interest in the (omitted) Fund employer superannuation (member account number (omitted)) ("the (omitted) Fund");
b. The Respondent's entitlement (and the entitlement of such other person to whom a splittable payment be made) to payments out of the Respondent's interest in the (omitted) Fund is correspondingly reduced;
9. That the specified percentage for the purposes of Order 8 above is 100%;
10. That Orders 8 and 9 have effect from the operative time and the operative time is four days after service of this Order upon the Trustee of the (omitted) Fund ("the (omitted) Trustee");
11. That the (omitted) Trustee shall do all acts and things and sign all such documents as may be necessary to:
a. Calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement created by Orders 8 and 9; and
b. Pay the entitlement whenever a splittable payment becomes payable out of the Respondent's interest in the (omitted) Fund.
(omitted) Superannuation ((omitted)) Split
12. That in accordance with section 90MT(1)(b) of the Family Law Act 1975:
a. The Applicant is entitled to be paid a specified percentage of each splittable payment out of the Respondent's interest in the (omitted) Superannuation ("the (omitted)");
b. The Respondent's entitlement (and the entitlement of such other person to whom a splittable payment be made) to payments out of the Respondent's interest in the (omitted) Fund is correspondingly reduced;
13. That the specified percentage for the purposes of Order 12 above is 100%;
14. That Orders 12 and 13 have effect from the operative time and the operative time is four days after service of this Order upon the (omitted) Superannuation, the Trustee of the (omitted) Fund ("the (omitted) Trustee").
15. That the (omitted) Trustee shall do all acts and things and sign all such documents as may be necessary to:
a. Calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement created by Order 12 and 13; and
b. Pay the entitlement whenever a splittable payment becomes payable out of the Respondent's interest in the (omitted) Fund.
Other Property
16. That except as otherwise provided in these Orders:
a. The Applicant and Respondent each be, as against the other, the sole legal and beneficial owners of all items of property currently in their respective names, or where there is no legal title, currently in their respective possession; and
b. Each of the Applicant and Respondent is to pay, and indemnify the other against, any liability in that party’s name, or encumbering any item of property to which that party is entitled pursuant to these Orders.

The Applicant Wife relied upon the following material:
Affidavit of Ms Mancini filed 14 June 2013;
Financial Statement of Ms Mancini filed 14 June 2013;
Affidavit of Mr S filed 14 June 2013;
Affidavit of Mr S filed 28 June 2013;
Affidavit/report of Dr A
Affidavit of Ms M filed 1 July 2013;
The orders sought by the Respondent de facto Husband are as follows:
1. The Applicant to receive 75% of the Respondent's Superannuation Entitlements
2. The Applicant to receive the balance of the Respondents Tax return for the year 2012/13 after the paying the $7800 that is due for the final balloon payment of the Nissan (model omitted) that the Applicant has in her possession and that the Respondent is currently paying the lease for and that is in the Respondent's name
3. The Respondent will sign over ownership of the the Nissan (model omitted) as described above
4. Whatever debt that remains as of the 3^rd July 2013 in regard to the (bank) omitted in relation to the farm property following on from the auctioning of the farm property to be split 50/50 between the Applicant and the Respondent
5. The Respondent will take ownership of the debt of $744 to (omitted)
6. The Respondent will take ownership of the debt of $12,000 to Mr M
7. The Respondent will take ownership of the debt of $3000 to (omitted)
8. The Respondent will take ownership of the debt of $486 to (omitted) Rates
9. The Respondent will take ownership of the debt of $400 to (omitted) Rates
10. That both parties retain any other debt that they currently have
11. That both parties keep any other goods that are currently in their possession
12. That both parties cannot lay claim to anything further from the other following these final orders being decided
Apart from his original response, affidavit and financial statement, all filed on 4^th April 2012, the Respondent Husband filed one further affidavit on 20^th June 2013, a financial statement on 21^st June 2013, a case outline on 27^th June 2013, and a “response to case summary [of the Applicant]” on 3^rd July 2013.
The Husband provided a schedule of assets and liabilities annexed to his Case Outline (filed 28^th June 2013). In that Statement, Mr Hodges set out (a) the non-superannuation assets, which he said totalled $43,000, (b) liabilities, which he said totalled $121,536. He said that this resulted in a negative non-superannuation asset pool of minus $78,336. It will be immediately seen from the table below that the parties actually arrived at the same [negative] conclusion of the non-superannuation asset pool.
In relation to superannuation, his Statement contended that those interests totalled $156,155. He also referred to an unknown amount of superannuation in “(omitted) Fund”. However, the Applicant confirmed that relevant searches had not revealed any superannuation interest in a fund of that or similar name. The Husband’s conclusion or value in relation to superannuation interests is the same as that of the Wife.
For convenience, and because the evidence supported the Wife’s position more so than it did the Husband, I set out below the Wife’s schedule of assets and liabilities. Save for some very modest matters noted below which came to light in the course of the Husband’s evidence and submissions, I should be taken to accept and adopt it as an accurate reflection or statement of the asset pool (again with the exception of the mortgage debt to the (bank omitted), which, as already noted, was confirmed by the Husband to be approximately $240,000).

C. Wife's Statement of Asserted Assets & Liabilities
Assets
(bank omitted) Account	Applicant	Nominal
Household Contents	Applicant	$ 500.00
Trailer	Applicant	$ 800.00
Lawnmower	Applicant	$ 500.00
Air Compressor	Applicant	$ 500.00
Value of Assets in Applicant's Possession	$ 2,300.00
(omitted) Account	Respondent	$ 400.00
Isuzu Motor Vehicle	Respondent	$ 25,000.00
Nissan (model omitted)	Respondent	$ 8,000.00
Household Contents	Respondent	$ 500.00
(omitted) Gear	Respondent	$ 7,000.00
Value of Assets in Respondent's Possession	$ 40,900.00
TOTAL:	$ 43,200.00
Liabilities
Outstanding amount to (bank omitted)	Joint	Unknown
(omitted) Mortgage Balance
(bank omitted) Overdrafts	Joint	$ 18,000.00
(bank omitted) MasterCard	Applicant	$ 1,100.00
(bank omitted) Creditline	Applicant	$ 2,800.00
(bank omitted)	Joint	$ 5,452.00
(omitted) Council	Joint	$ 691.00
(omitted)	Joint	$ 2,298.00
Mr M	Joint	$ 11,915.00
(omitted)	Joint	$ 770.00
Mr B	Joint	$ 2,400.00
Ms M	Applicant	$ 11,610.00
Legal Fees	Applicant	Exclude
Legal Fees	Respondent	Exclude
(omitted bank) Visa	Respondent	$ 14,000.00
Amex	Respondent	$ 5,000.00
(omitted bank) Lease (Isuzu)	Respondent	$ 37,000.00
(omitted bank) Lease (Nissan)	Respondent	$ 8,500.00
TOTAL:	$ 121,536.00
NET NON SUPERANNUATION ASSETS:	-$ 78,336.00
Superannuation
(omitted) Pension in Payment Phase	Applicant	Exclude
(omitted) Fund	Respondent	$ 47,205.00
(omitted) Fund	Respondent	$ 108,950.00
(omitted) Fund	Respondent	Unknown
TOTAL:	$ 156,155.00
NET ASSETS INCL. SUPERANNUATION *	$ 77,819.00
*Excludes Balance of Debt on Farm& Excludes any Capital Value of Applicants Invalidity Pension
Note 1:Less whatever (bank omitted) claims from amount remaining after sale of Farm

D. The Wife’s Evidence

Other than the affidavits to which I have referred, there was little in the way of cross examination, from which I note the following.
The Wife’s evidence was very brief. It focussed on matters relating to the sale of stock and plant that was on the couple’s farm that was later sold by the (omitted) Bank. Most of the limited contest related to the value, quality and number, of (livestock omitted) on the property.
Even though, in my view, nothing turned on it, I accept her evidence that she had little or no knowledge of matters relating to the farm, including the number of (livestock omitted) or their value. In such things, the Wife relied upon the knowledge and experience of the Husband.[9]
[9] See T 24.
In the Wife’s case, Ms M was required for cross-examination by Mr Hodges. Her evidence goes to lending the Wife money. She said that she had lent her $10,000, and likely at least $5000 more, but the latter she did not record. She confirmed that the Wife had not re-paid anything to her. I accept her evidence. Moreover, the Husband later accepted that Ms Mancini owed Ms M money, which she (Ms Mancini) was responsible to repay.[10]
[10] T 64.
The Wife also relied upon two affidavits from Mr S, both of which related to valuation of superannuation. There was no challenge to this affidavit evidence.

The Husband’s Evidence

The first part of the Husband’s cross examination confirmed the material set out in his financial statement, particularly regarding his current weekly salary of $3500, tax with-held of $650, and superannuation contribution of $300 per week. He also confirmed that for the previous financial year he had received a tax refund of $19,336, which arose because he was able to claim farm losses against his income.[11]
[11] T 28.
The refund to which I just referred was received by Mr Hodges on 17^th September 2012. This was at a time when (a) the orders of April 2012 regarding spousal maintenance were in force, and (b) he had ceased paying the required sum under the orders on or about 13^th August 2012. He confirmed that he did not pay any spousal maintenance after 13^th August 2012, including after his receipt of his tax refund.[12]
[12] T 29.
Mr Hodges confirmed that it was unlikely that he would get any tax refund for the tax year ended 30^th June 2013. Indeed, it was put to him that it was more likely than not that he would have to pay tax for that tax year.[13]
[13] See the broad discussion at T 29-33.
The burden of this cross examination was that Mr Hodges proposed to the Court that the ‘balloon payment’ for the car currently in the possession of the Applicant Wife would be paid out with his “tax refund.” However, as just noted, on the matters put to him (a) he had no idea about his actual financial circumstances (other than them being dire), and (b) the proposal to pay out the lease-related sum was highly unlikely.
Mr Hodges currently resides on a property which he rents for $400 per week. It is currently on a month to month tenancy, and is a modest but still sizeable distance from the CBD of Canberra which requires a not insignificant expense for petrol. Together with his regular travel to (omitted) events he claimed that his petrol expenses are some $200 per week, or $10,000 per year.[14]
[14] T 48-50. Other car expenses, insurance and such things, were also canvassed with Mr Hodges. See T 39-41.
The property to which I have referred is some 16 acres on which he runs (livestock omitted), (omitted), and some (omitted). A number of the (livestock omitted) he has acquired since the spousal maintenance order was made in April 2012. The purchase price of the (livestock omitted) he estimated to be $6800; he also confirmed that there was a weekly feed cost of $100 for the (livestock omitted). He regularly entered (perhaps every two or three weeks) (omitted) events, which cost him entrance fees of perhaps $110 per event. He also said that he thought the current value of his (livestock omitted) was perhaps $6500 – 7000. He also confirmed that during this time when he was paying for (livestock omitted) and their feed he was not paying anything to the Applicant Wife, notwithstanding an order for him to do so.[15]
[15] See T 33-35.
Next Mr Hodges confirmed that while he was unemployed between August 2012 and the end of January 2013, he was employed for a (omitted) company, (duties omitted) and the like, for which he earned something like $4000.[16] Mr Hodges confirmed that the period of his unemployment of approximately five months is the only time he has been unemployed in the past 19 years.[17]
[16] T 36.
[17] T 44.
He confirmed that in April and May 2013 he paid veterinary fees that totalled some $4000 or thereabouts, plus various other sundry expenses in relation to his (livestock omitted).[18] These matters led me to put the following propositions to Mr Hodges; the full exchange is set out below:[19]
[18] T 37-38.
[19] T 39.
… my concern, and without presuming upon Mr Farrar’s line of questions, but the few questions that I have asked to try to get the best possible picture as I have said ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ as to the financial circumstances of both parties?‑‑‑Correct. Yes
And part of that is in a context where orders were made a significant time ago for you to pay money to the lady to whom, or with whom you were in a relationship for many years?‑‑‑Yes.
And you have chosen over a significant period of time now, you say at least in part, because you have really not had the money because you have been unemployed for a period of time. But notwithstanding all that, you buy (omitted), you feed them. But you’re content, respectfully it could be put this way very, very bluntly, and I don’t mean to offend, but you are prepared to pay for the (omitted) whatever is required, whether it’s vet fees, feed, (omitted), whatever ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ but you’re not prepared to abide by the orders of the court in relation to, for example, spousal maintenance. You understand?‑‑‑Yes.
A worst case scenario, and I’m not sure when you were represented by Mr O any of this would have been spelt out, but failure to comply with court orders can result in a range of things. They can result in cost orders,… worst case scenario, people can be charged with contempt, and some very dangerous things can happen if people are charged with contempt, because it’s basically thumbing your nose at the court which is not a good thing to do. You understand?‑‑‑Yes.
Mr Hodges confirmed that he was content to give Ms Mancini 75% of any and all of his superannuation interests.[20] He also confirmed that he did not inform Ms Mancini or her solicitors when he regained employment in January 2013. And, he said, that he could not give the Court any reason why he did not resume paying the spousal maintenance that had been ordered to be paid in April 2012.[21]
[20] T 45.
[21] T 53.
Another matter traversed with Mr Hodges related to service of Ms Mancini's Application in a Case in April 2013.
He maintained that he never received copies of the Application in a Case and supporting documents in circumstances where he confirmed that the email address to which they were sent was at the time, and remains, current. He confirmed that he was personally served with the documents on 24^th April 2013, and that he has continued not to pay anything to Ms Mancini or to abide by other orders, which may be described as “machinery” such as providing keys to a car. He said, very matter-of-factly, he had not complied simply because “I haven’t done it.” Otherwise, in response to further questions as to why he had not paid Ms Mancini the spousal maintenance ordered in April 2012, almost blithely but certainly matter-of-factly, he simply said that there was “no reason.”[22]
[22] T 53-54.
Mr Hodges agreed with the content of correspondence from the Wife’s solicitors that was read to him in Court, which reminded him of compliance with earlier made orders to pay spousal maintenance. He maintained that his understanding was that the orders of 16^th May “didn’t stand”. This was so notwithstanding him confirming that he had never brought any application to appeal, vary or suspend the spousal maintenance orders (of either April 2012 or April 2013), and that he had obtained legal advice after the orders of April 2013 had been made. He agreed also that the Wife’s solicitors had confirmed to him on a number of occasions that the spousal maintenance orders (specifically of April 2013) remained in effect.[23] He said that the non-payment of spousal maintenance as ordered in April 2012 was his “mistake.”[24] He also accepted that the amount in arrears for non-payment of spousal maintenance is $30,600.[25]
[23] See the extensive discussion at T 55-59.
[24] T 58.
[25] T 59.
While the point may well be moot in the result, not least because of later attendances at Court by Mr Hodges without having made any application to suspend, appeal or vary the orders of the Court in any respect, upon checking the transcript for 16^th May, the following may be observed. First, as already noted, there has never been any application by Mr Hodges to vary, appeal or suspend either set of orders – in April 2012 or 2013 - for spousal maintenance in favour of Ms Mancini. Secondly, while Mr Hodges did raise, on 16^th May, him not receiving notice of the Application in a Case until 24^th April, apart from his complaint about the orders, he made no application to the Court. And this was in circumstances where he confirmed that he had obtained legal advice after 24^th April 2013 regarding the Application in a Case and the orders made on 11^th April 2013.
The Respondent Husband confirmed that, according to his most recent pay slips, his annual income is in the order of $188,000. Exhibit D confirmed his income.
He also confirmed that if the (omitted) Bank pursued him for the outstanding mortgage debt he would go bankrupt. Likewise, he said that if the Court made orders in relation to collection of the arrears of spousal maintenance he would also go bankrupt. He said that if this occurred, he would lose his top secret security clearance, which in turn would impact on what work he could do and would necessarily result in a lower hourly rate of pay.[26]
[26] T 64.

Submissions

The submissions of the Applicant were as follows, firstly in relation to property, then in relation to spousal maintenance. Having regard to the state and nature of the property pool, in accordance with comments in the plurality judgment of the Full Court (Bryant CJ, Finn and Coleman JJ) in C v C, it is important to consider and to deal with superannuation as a separate or discrete interest.[27]

Applicant’s Superannuation Submissions

[27] See, among other places, C v C (2005) FLC ¶93-220 at [61].

As extensive as they are, because I accept them in their entirety, I set out below the written submissions of the Applicant in full. Thus:
1. Both parties have superannuation. The Applicant's superannuation is a disability pension paid by reason of her membership in the (omitted) Superannuation. It is currently $404 per week and, apart from a social security pension, is her only income. The following matters need to be noted in relation to the nature, form and characteristics of her pension:
1.1 It is taxable. Note comments of the majority of the Full Court in Semperton and Semperton (2012) Fam CAFC 132 at para 159 where their Honours talked about the fact that despite a lump sum valuation the pension is taxable and "no formula can determine the real value to an individual recipient because of the myriad factors that would impact on the tax treatment of the benefit".[28]
[28] Semperton is reported at (2013) 47 Fam LR 626.
1.2 It is payable for life and indexed to the Consumer Price Index (Affidavit of Mr S);
1.3 It cannot be commuted into a lump sum, but can only ever be received as a pension (Affidavit of Mr S). It has a theoretical capital value under the Family Law Act (Superannuation) Regulations of $350,587 but that amount can never be realised in a lump sum; and
1.4 It arises out of her employment in the (omitted) from 1998 to 2008 (Applicant's Affidavit filed 14 June 2013 at paragraph 13);
1.5    She gets it because she cannot work.
2. The Respondent has sworn two Financial Statements and two Affidavits. The only superannuation entitlement which he discloses is his membership of (omitted) Superannuation Plan which he says, in his Financial Statement filed 21 June 2013, has a value of $108,950. However, the Applicant says that the Respondent has a (omitted) Superannuation entitlement and material has been obtained from the Trustee of the (omitted) Superannuation which has enabled that entitlement to be valued under the Family Law (Superannuation) Regulations (see Affidavit of Mr S).
3. The family law value of the Respondent's (omitted) Superannuation entitlement as at the 13 June 2013 was $47,205.
4. The Respondent's membership of the (omitted) Superannuation commenced on 16 November 1995 (that is during the relationship). The Respondent left the (omitted) in 2002 (affidavit para 17). The Respondent's contributions to that scheme were wholly during the relationship.
5. If a superannuation split was ordered in the Applicant's favour she would be entitled to access all of the Respondent's (omitted) superannuation as a lump sum (Annexure G to Mr S’s affidavit page 3 of his report 13.6.13).
6. If there is a split of the (omitted) Fund it can be taken as a lump sum or pension (Mr S's Annexure D page 3, second para).
7. It is submitted that the Applicant's superannuation invalidity pension should not be categorised as property with a lump sum value in these proceedings. The pension payments received by her represent no more than an entitlement to a weekly or fortnightly payment. As such, the only property to which she presently has access (and assuming she lives to receive the same) is the net weekly payment due. In Perrett (1990) FLC 92-101 the Full Court said that ….
It is, in our view, impossible to characterise the husband's entitlement to a pension as a chose-in-action referrable to some notational capitalised figure. We think it wrong to treat a lump sum so arrived at as property however broadly defined. Such a figure is entirely notional and does not in any sense represent property as such. It may never come to the husband as the recipient at all and will never do so as a single capital sum. The beneficiary is unable to assign his pension entitlement and does not have the capability to turn it into a capital sum.
We think that the only "property" within the meaning of the Family Law Act to which persons in the position of the husband are entitled at any one time is their pension entitlement in respect of the period between the date of the last payment of an instalment and that moment. This is the only chose-in-action to which such a person is entitled and we think entirely illusory to treat the husband's property entitlements as going beyond this".
8. Whilst not as yet determined, it is submitted that Perrett remains sound authority notwithstanding the Family Law Legislation (Superannuation) Act 2001.
9. The principles set out by the Full Court in C v C (2005) FLC 93-220 are similar to those in Perrett and in this case. In C v C the majority (Bryant CJ, Coleman and Finn JJ) considered that s90MC operates so as to extend a court's jurisdiction to make orders in respect of superannuation interests, but does not require such interests to be treated as property in s79 proceedings (at 79, 621-2). Rather, it remains a matter of discretion as to whether the superannuation interests is to be treated in accordance with the approach in Hickey and Attorney-General (Cth) 2003 FLC 93-143 and C v C or the superannuation interest is to be considered in a separate category from the other assets (the preferred approach of the majority in C v C at p.79,645-6).
10. Critically in this case, in approaching the value of the Applicant's pension the consideration of s90SF factors and the justice of [sic] equity of the orders, it is submitted that the Court should have regard to "the real nature" of the pension entitlement as in C v C where the majority said :
"67. … The real nature of the superannuation interests in question can also be taken into account, both in consideration of the s75(2) matters and in the final assessment of whether the ultimate order is just and equitable.
68. … When we refer to the "real nature" of the relevant superannuation interests, we are referring to the fact that notwithstanding that its value according to the regulations may well be calculated to be a very significant amount, that superannuation interest may be no more than a present or future periodic sum, or perhaps a future lump sum, the value of which at day of receipt is unknown" (Page 79,646).
11. In Cahill and Cahill (2006) FLC 93-253 Coleman J was considering the husband's DFRDB pension which was in the payment phase. It was said to have a capital value under the superannuation regulations of $429,805.   At para 77-78 His Honour said:
"The $429,805 is a conversion of what is clearly income to capital. The husband's DFRDB pension is not, and never can be, capital. It is as simple as that. To apportion $429,805 as if it were an asset would be an exercise in artificiality no matter how it was approached. If one had regard to it and if one concluded that the wife's entitlement was any significant percentage that would be, in the Court's view grossly unjust as so far as the husband was concerned".
12. In that case His Honour took the pension into account under s75(2) and not as an asset.
13. In McKinnon (2005) FamCA 1245 Coleman J, again dealing with a DFRDB entitlement, said that he preferred the separate pool approach in dealing with such superannuation interests. He said (para 5) the reason the court prefers this approach are essentially that the evidence establishes that the husband's DFRDB pension is and will in future continue to be a fortnightly pension benefit which can never be commuted or otherwise converted to a lump sum …. Thus while undoubtedly, in accordance with the regulations, the value of the superannuation interest is as found by the learned Federal Magistrate, consistent with the judgment of the majority in C v C, this Court considers the preferable approach in terms of achieving a just and equitable resolution of the proceedings between the parties to be to consider the superannuation interests separately from the remaining assets of the parties.
14. In recent Full Court decisions in Semperton (2012) Fam CAFC 132, and Craig and Rowlands (2013) Fam CAFC 45, the Full Court has focussed on the danger of counting a non-commutable pension entitlement as "property" and then taking it into account as part of the income stream of a party under s75(2). In both cases there was reference to the dangers of "double counting".
15. Here it is submitted that it is relevant that this is an invalidity pension. It is not something which has accrued by reason of planning and a conscious decision to retire. It is payable because the applicant can't work due to ill-health. Whilst her (omitted) membership took place during the relationship, so did the onset of ill-health which prevents her working. This is not an incident of the savings or retirement plans of the parties. It comes about because of her inability to work. It is submitted this is relevant in the determination of what is "just and equitable". It is submitted that it is relevant under s.90SF when the court compares the income and earning capacities of the parties, but should not be treated as "property" in the first stage of the process.

More generally, the Applicant submitted that the Court would (or should) find that the non-superannuation property of the parties is negative. I accept this submission.
The Applicant submitted that the Court would find that the contributions of the parties during the relationship were equal. Subject to what is said shortly in relation to contributions, I accept this submission.
The Applicant further submitted in relation to the superannuation interests that:
1. The alteration sought by the applicant is justified by the factors under s90SF(3), which the court must take into account in de facto property settlement proceedings (see s90SM(4e)).
2. The main ground for adjustment under s90SF is by reason of the enormous difference in the income and earning capacity of the parties. The applicant is 56. She will never work again. Her only income is the Superannuation Disability Pension and a Social Security Disability Pension. Their combined total is currently $33,592 per annum. The Social Security pension is means-tested and its amount will vary depending on the court's determination of the spouse maintenance application. The applicant will never be able to increase her income.
3. By comparison the respondent earns over $188,000 per annum. Notwithstanding his forecasts, the court will be of the view that he has worked for all but four months of the last 19 years. He obtained his current employable skills by studies during the relationship when the applicant supported him. He is 53 years old. He has no health conditions which adversely affect his ability to work. He talks about having had a skin cancer two years ago and requiring six monthly check ups but he is active in his (omitted) pursuits. It is submitted that the court will find that his earning capacity in the future will be equivalent to that which it is at present.
4. In Clauson (1995) Fam CA 10 the Full Court said …
"There is, we think, at times a tendency to assess 75(2) factors in percentage terms without considering its real impact and we think there is legitimacy in the views expressed in more recent times that the court has tended to operate in this area within artificially delineated boundaries. That is, it appears almost to be inevitable that the section 75(2) factors will be assessed in the range of between 10 and 20%. A number of cases will justify an assessment outside those parameters and in any event it is the real impact in money terms which is ultimately the critical issue". (18 Fam LR at page 710).
At the same page the Full Court said …
"It has long been recognised that in most cases the most valuable asset which a party can take out of the marriage is a substantial, reliable, income-earning capacity …". (See Best 1993 FLC 92-418)
In Best's case the wife received all of the meagre assets of the parties on account of the husband's substantial income. [In the current case] [t]he shortfall to the (omitted bank) following the sale of the farm is as yet unquantified but looks substantial. Given the husband's absence of tangible assets, bankruptcy for either party would not lead to the loss of any property. The superannuation entitlements of neither party would be divisible amongst their creditors in the events of bankruptcy. (Section 116(2)(d)(iii) and (iva) of the Bankruptcy Act). This is relevant because s90SF(3)((i) requires the court to have regard to the effect of any proposed order on the ability of a creditor to recover the creditor's debt. Here the orders proposed will not effect [sic] the ability of any creditor to recover their debt, because the only asset is superannuation which could not be seized by a Trustee in Bankruptcy or any creditor.

Applicant’s Spousal Maintenance Submissions

Again because I accept the Applicant’s written submissions in this regard, I set them out in full. Thus:
i. On 20 March 2012, the Applicant commenced these proceedings seeking orders for property settlement and orders for spousal maintenance, including interim orders for $650 per week. On the first return date (2 April 2012), the Respondent had not filed material in reply and was ordered to do so within 48 hours. In his Response, the Respondent did not address the spouse maintenance application but only dealt with property matters. His Affidavit sworn 4 April 2012 did not address the Applicant's entitlement to maintenance, but addressed his own financial circumstances (paragraph 7 to paragraph 20). His Financial Statement sworn the same day gave his income as $3,635 per week, and his expenses as $2,871 per week. Some of those expenses would have been challenged at a final hearing.
ii. On 5 April 2012, after a short interim hearing, the Court ordered that the Respondent pay the Applicant the sum of $900 per week "… such sums to be categorised later in the proceedings". The Applicant was required to make certain payments, and the parties were to sell the farm.
iii. On 11 April 2013, the matter came back before the Court. The Applicant had sworn an Affidavit (4 April 2013) stating that the payments which had been ordered were substantially in arrears and that the farm had been sold. On 11 April 2013, the Court ordered that [emphasis in original]:
Within 28 days, the Respondent pay the Applicant $30,600, being "spouse maintenance arrears in the sum of $900 per week for the period 13 August 2012 to 5 April 2013". No sum has been paid since that Order was made.
Until further order, the Respondent pay the Applicant spouse maintenance of $413 per week. No sum has been paid since that Order was made.
The Court ordered that the Respondent pay the lease payments for the motor vehicle in the Applicant's possession. The Respondent says those payments have been made.
The Respondent was ordered to give the Applicant all keys to the Nissan vehicle. The Applicant says he has not done that (Applicant's Affidavit 13 June 2013 at paragraph 100(d)).
In the absence of maintenance, the Applicant's only income, as set out in her Financial Statement filed 14 June 2013, is a Government Disability Pension and Superannuation Invalidity Pension. The Government Disability Pension is an income tested pension which is to be disregarded in determining her entitlement to maintenance (section 90SF(4)).
(omitted) Pension is payable for life and indexed to the Consumer Price Index. For the purposes of her maintenance application, the Applicant's income is $404 per week, being the current amount of her pension.
Under section 90SF, the Applicant is required to satisfy the Court that she is unable to support herself adequately. In this case, her grounds are "… by reason of age or physical or mental incapacity for appropriate gainful employment".
iv. The Respondent is liable to maintain her if she meets that criteria, and "only to the extent that he is reasonably able to do so" (section 90SF(1)(a)). The matters to be taken into account in this matter are set out in section 90SF(3)(a), (b), (d)(i), (f), (g), (k), and (r).
v. There is no distinction between parties who were married and parties who, like the parties here, did not marry but lived in a defacto relationship for about 18 years.
vi. In her Financial Statement she says that her expenses are $817 per week. It is submitted that her expenses are modest. For example, she only pays $100 per week rent and, until now, has not been required to contribute to electricity and gas bills but that is to change (see her Affidavit filed 14 June 2013 at paragraph 94).
vii. The Applicant is unable to work in the future. She has severe heart disease (see her Affidavit at paragraphs 83-4 and report of her Cardiologist). It is submitted that she is "unable to support herself adequately" (section 72).
viii. The Applicant seeks an order that the Respondent pay spouse maintenance of $413 per week, which is the shortfall between her income and her expenses. The Applicant seeks that those payments be indexed to the Consumer Price Index for Canberra.
ix. The Applicant also seeks to recover the arrears of maintenance, including the lump sum, as ordered by the Court on 11 April 2013. The Applicant seeks that all future maintenance payments be withheld from the Respondent's earnings. Given his track record, it is submitted that it is appropriate to have payments made in this manner.
x. The Respondent has belatedly filed a Case Outline in which he seeks to give the Applicant 75% of his superannuation entitlements. The difference between them is therefore 100% versus 75%. It is not mentioned in the spouse maintenance application. For the moment, we assume that he opposes the spouse maintenance application. His Affidavit sworn on 18 June 2013 does not address that matter.
xi. In his Financial Statement filed on 21 June 2013, he says, relevant to the maintenance application:
a. He is employed by (omitted) Pty Ltd and describes his occupation as "(omitted)".
b. His income is $3,500 per week gross (the amount at Item 9 of his Financial Statement, not $3,400 per week which is the total at the bottom of the same page).
c. His tax is $650 per week. He pays $300 per week superannuation and $520 per week rent. He says he pays $400 per week hire purchase/lease payments on his vehicle and the Applicant's vehicle. He does not break up those payments. Given that they are the same vehicles referred to in his Financial Statement of 4 April 2012, when he said the payments were $360, his figures are unreliable. For example, in April 2012, he said his registration cost for the two vehicles was $88 per week, or $4,576 per annum. He now says they are $35 per week, or $1,820 per annum, which sounds a more likely figure.
d. His credit card payments are $200 per week, but it is submitted those payments are for expenses which are otherwise shown in Part N of his Financial Statement.
e. In Part N, he says that his personal costs of living are $1,150 per week. It is submitted that the addition in Part N is wrong and the correct total is $1,095. He says, at item 33, that his total weekly expenses are $3,330, which would give him a surplus of $170 per week.
xii. It is submitted that the following reduction in expenses should be applied:
a. A reduction in expenses due to incorrect addition in Part N$55
b. The credit card payments are part of the expenses at item N and, to avoid double counting, should be ignored.                $200
c. $250 per week for food is, it is submitted, excessive, particularly when he says in Part O that he is "stocking up on food as well to allow for the completion of my contract". The Applicant's food expenses are $150 per week and the Respondent's reasonable expenses should be set at the same figure, a reduction of    $100
d. Rent of $520 per week is, it is submitted, excessive. The Respondent chooses to live on a farm and to house animals, including (omitted). It is submitted that that is a matter of choice and that level    of expense is not "necessary", particularly bearing in mind that the Applicant is forced to share accommodation. It is submitted that a more appropriate figure would be in the region of $300 per week, a reduction of $220
It is to be noted that in Part O the Respondent says that he pays an extra $40 per week rent to build up a buffer.
e. The Respondent spends $110 per week on electricity and fuel. It is submitted that this is excessive and, taking into account that Summer bills will be far less that Winter bills. The Applicant says that she spends $80 a week on electricity and gas and it is submitted that a reasonable figure for the Respondent would be the same – a reduction of $30
f. Petrol – The Respondent says he spends $200 per week. It is submitted that that is excessive and should be half that figure – a reduction of $100
g. The Respondent spends $75 per week on "hobbies". This is unsubstantiated and excessive. The Applicant spends $20 per week and that is a more realistic figure – a reduction of   $55
h. The Respondent claims $100 per week for (omitted) feeding. It is submitted that, given that he also claims $25 per week for Household supplies, and that (omitted) feeding should not be considered "necessary", this amount should be disallowed. A reduction of $100
i. The Respondent's voluntary superannuation contributions of $300 per week should be disallowed. A reduction of              $300
Total Reduction  $1,160
xiii. On that basis his expenses are $2170 per week against an income of $3500 per week gives him a surplus of $1330 per week, more than enough to pay the amounts sought.
xiv. The Respondent claims that his job is at risk (paragraphs 52, 53, and 39). It must be borne that the Respondent's work history is significant.
a. In the early part of the relationship, he studied for an (omitted) in (omitted), as well as working as a (omitted) at nights (paragraphs 6 and 7).
b. From 1994 until 2002, he worked in the (omitted) (paragraphs 12, 16, and 17).
c. In about 2004, he started contracting in the (omitted) area and has been doing that ever since (paragraph 18). He worked in that role until August 2012 when he was terminated (paragraph 49). He obtained another contract on 28 January 2013 (paragraph 51). Therefore, his evidence is that, since 1994, he has been employed full-time with his only gap in employment being from August 2012 until January 2013.
xv. Section 90SI of the Family Law Act would enable him to make an application to vary a maintenance order if there was a significant change in circumstances. The Court should deal with the maintenance application based on the current circumstances without having to guess at whether or not he will lose his employment.
xvi. It is submitted that the Applicant has demonstrated that she is unable to support herself adequately, that the Respondent has the capacity to support her and there should be an order for ongoing spousal maintenance. Where spousal maintenance is sought, in addition to property orders, the maintenance aspect will be considered after the outcome of the property matter (Clauson 18 FamLR 693 at page 705). Here the outcome of the property matter will not detract from the Applicant's maintenance claim.
In conclusion, the Applicant submitted as follows:
Here the assets of the parties are less than meagre. It is submitted that a just and equitable outcome is:
a. The Respondent pay the debts accrued during the relationship. The wife clearly has no capacity to do that.
b. The Respondent's superannuation be split as to 100% in favour of the Applicant. It is noted that the Respondent did not disclose his (omitted) superannuation so if he is unaware of it he will hardly miss it. It will be of vital important [sic] to the Applicant.
c. The Respondent's (omitted) Fund superannuation and the (omitted) superannuation aggregate a little over $150,000 in value. At what he says is his current rate of contribution to superannuation the Respondent will contribute a lot more than that over the balance of his working life, and he has the capacity to re-build his superannuation whereas the applicant does not.
d. Moreover the applicant can access that superannuation immediately. It would be in the nature of property in her hands. In the respondent's hands it will not be accessible until his retirement.

Respondent’s Submissions

The Husband’s Case Outline noted the following as the issues in dispute. He did not offer any submission (in this document) in support of the orders he sought, other than (as set out below) something of a series of comments or annotations to the issues in dispute. He made brief written submissions in reply by a document styled “Response to Applicants [sic] Case Summary”. The issues he said were in dispute are (as set out in his Case Outline):
a. the asset pool
b. the weight that is afforded to the Respondent in relation to contributions made throughout the period of the relationship and payments made following separation
c. the Respondent’s earning capacity and weight that is afforded due to the age of the Respondent, the fact that the Respondent is not in permanent employment and the narrow area of expertise of Respondent leading to limited opportunities for employment
d. the weight that is afforded to the Respondent due to the Applicant being on a pension approximately 2 years before the date of the separation
e. the weight that is afforded to the Respondent in relation to the activities of the Applicant and the abuse of the Respondent by the Applicant in the years leading up to separation that played a major role in the separation
f. the constant insistence and inference by the Applicant that we were husband and wife when we were, in fact, never at any time or period married
g. the validity of the orders issued on 11^th April 2013 due to the Respondent not being notified or made aware of the Court hearing until the serving of papers on the Respondent on 25^th April 2013
h. what, if any, spousal maintenance is due to the Applicant as of the date of the trial
i. what is the Applicant’s need or requirement, if any, for spousal maintenance
For ease of reference, it is as well to repeat each of the “issues in dispute” as raised by Mr Hodges and comment on them, thus:
a. The asset pool.
Comment: I have accepted the asset pool as set out by the Wife. I have also noted that the figures set out by both parties in relation to non-superannuation and superannuation are identical.
b. The weight that is afforded to the Respondent in relation to contributions made throughout the period of the relationship and payments made following separation.
Comment: subject to what is said below in relation to contributions more generally, although Mr Hodges’s disputed the nature or levels of contribution by the Wife during the relationship, there was insufficient evidence put before the Court to make any order or finding other than that the contributions of the parties during the long relationship were essentially equal. As noted below, such is the finding of the Court.
c. The Respondent’s earning capacity and weight that is afforded due to the age of the Respondent, the fact that the Respondent is not in permanent employment and the narrow area of expertise of Respondent leading to limited opportunities for employment.
Comment: The evidence noted above recorded that Mr Hodges (a) has been in permanent employment for all but five months of the past nineteen years, and (b) his current salary, under the contract of employment, is in the order of $180,000 per annum. Whatever his level of expertise and experience, clearly he has been able to secure both training and employment over a significant period of time in areas where not insignificant skill is required. All of these are significant factors that point to someone who, when his mind is turned to it, is obviously capable of significant employment accomplishment. Ms Mancini enjoys no such benefits or capacities.
d. The weight that is afforded to the Respondent due to the Applicant being on a pension approximately 2 years before the date of the separation.
Comment: while it is not completely clear what the intent of Mr Hodges is in relation to this “issue”, from the Court’s perspective Ms Mancini being on a disability pension, and in the light of the medical evidence, all suggest that the “s.75(2) factors” are strongly in her favour.
e. The weight that is afforded to the Respondent in relation to the activities of the Applicant and the abuse of the Respondent by the Applicant in the years leading up to separation that played a major role in the separation.
Comment: apart from the Husband’s assertions, there was little relevant evidence in relation to these allegations. Accordingly, from an evidentiary point of view, there is little or nothing to support the allegations made.
f. The constant insistence and inference by the Applicant that we were husband and wife when we were, in fact, never at any time or period married.
Comment: the Court noted to Mr Hodges in the course of the hearing that this “complaint” regarding nomenclature was not something that could be addressed by the Court, or certainly not in property proceedings.
g. The validity of the orders issued on 11^th April 2013 due to the Respondent not being notified or made aware of the Court hearing until the serving of papers on the Respondent on 25^th April 2013.
Comment: the evidence in relation to the orders of 11^th April 2013 is set out earlier in these reasons. Even if it be the case that Mr Hodges did not receive by email a copy of the Application in a Case that was dealt with on that day, (a) he was later personally served with it, (b) the orders did not become operational or effective until 14 days after the Application was heard, (c) on each of the subsequent occasions the matter came back before the Court (and after Mr Hodges had obtained legal advice) no application was made either to appeal, to vary or to suspend those orders.
Moreover, whatever his understanding of the status of the orders of 11^th April 2013, the orders of 16^th May clearly do not vary or otherwise abrogate the earlier orders in relation to spousal maintenance. Mr Hodges never challenged, or questioned the orders of 16^th May, by which time he had legal advice – but he took no further action. In the circumstances, I do not propose considering whether his conduct amounted to some form of estoppel.
h. What, if any, spousal maintenance is due to the Applicant as of the date of the trial?
Comment: the evidence in relation to what was due and owing under the April 2012 spousal maintenance order, and which was accepted by Mr Hodges in the course of his evidence, is set out earlier in these reasons.
i. What is the Applicant’s need or requirement, if any, for spousal maintenance?
Comment: the evidence in relation to the Wife’s on-going spousal maintenance is also set out earlier in these reasons.

In my view, Mr Hodges’ “Response” submissions do little other than to state his objections to or comments on matters already canvassed in these reasons regarding, for example, (a) service of the Application in a Case in April 2013, (b) the Applicant’s health, and (c) issues in relation to the [relative or comparative] living expenses of the Applicant and the Respondent.
In his oral submissions, Mr Hodges was very brief. First, he dealt with orders that could be made by consent, such as the payment of the ‘balloon lease sum’ on the vehicle held by the Applicant, lodging his tax return by the end of August, and transfer of the vehicle to the Wife.[29] Secondly, he confirmed his responsibility for a number of current debts, which he identified.[30]
[29] See T 79-80.
[30] T 81.
Thirdly, Mr Hodges made submissions in relation to contributions during the relationship, which he said should favour him. Fourthly, he said that his employment prospects were limited by his somewhat ‘niche’ area of expertise in circumstances where employers who continue to use (omitted) was very limited. It was, he said, a “narrowing field.”[31] To secure wider expertise would, he said, cost a significant sum (which he does not have) and require significant time to (re)train.
[31] T 84. From the Court’s own experience using “Lotus Notes”, “narrowing field” must surely be one of the more benign descriptions in relation to this software.
Finally, he was asked how the rather desperate financial plight of the parties, but he most particularly, came to be. His comments were as follows:[32]
[32] The following extracts are taken from T 82, 83 & 85-86 respectively.
HIS HONOUR:   Because – can I make an observation, and, again, I am not trying to be super critical, or harsh, or offensive, but I was very surprised with your evidence in a number of respects. Surprised in this sense that someone who, as Mr Farrar rightly said – that you are intelligent man, you work in an area that requires significant attention to detail, and yet the attention to your own personal detail, to put it charitably, is pretty modest.
MR HODGES:   Yes, and that is – I have been doing that since – 20, 30, 40 years. That is – I know it is wrong, probably, but that is just the way I have always done things.
MR HODGES:   ‑ ‑ ‑ that’s the way I have always been. Yes, I agree with you. I have never been any different; separated the work place and everything else completely. And I have – yes, so I have always done that, and done nothing different, as the applicant would, obviously, agree with as well. And I am not denying that, but I have always done that.
HIS HONOUR:   I’ve asked you this previously when you were in the witness box and I am not sure if there will be any other answer but again I feel compelled to ask if you can provide any reason why once you returned to full employment in January this year that you have not paid any money to ‑ ‑ ‑
MR HODGES:   Working on it.
HIS HONOUR:   ‑ ‑ ‑ to Ms Mancini. But why? That is my question.
MR HODGES:    Well, I have had stupidity, I guess; there is no other reason. I am – yes.
HIS HONOUR:   Well, your candour is appreciated, but could I suggest to you that it is, a) a remarkable circumstance, and b) it is obviously most unfortunate for everyone, and c) that it is not a practice that really I could genuinely commend to you to follow in the future.
MR HODGES:   Yes, I understand. I agree with you completely.

Consideration & Resolution

Earlier in these reasons I set out such detail as there is in relation to the property pool and my acceptance of it as set out in the Wife’s table of assets and liabilities.
Mr Hodges contended that the Court should assess contributions in his favour, although he was less clear as to what precise degree that assessment should be. Ms Mancini contended that contributions in the long relationship should be assessed as equal.
In many cases that deal with assessment of contributions, it has been regularly pointed out that (a) such an assessment does not lend itself to mathematical precision or a strict accounting exercise,[33] and (b) in long relationships, although the nature of the contributions may differ significantly, overall it is difficult not to assess them between the parties as essentially equal.
[33] See, for example, the comments of the Full Court in Clives v Clives (2009) 40 Fam LR 273 at [44].
In relation to this latter aspect I note Fogarty J’s detailed comments, which are important to set out in full (with which Hannon J agreed), in the Full Court decision in Doherty & Doherty, where his Honour said:[34]
I want to add one further matter. This is yet another appeal where it is sought to be argued that after a long marriage in which the parties have, within the normal framework, made significant but essentially disparate contributions, that the court should assess their overall contributions as other than equal. Although it is true to say that each case has to be considered upon its own merits, the reality is that the consistent theme in the cases, both the trial and appeal, and ordinary common sense within the community, constantly demonstrates the point that in the type of marriage with which this case is concerned, the parties' contributions are likely to be seen as equal or thereabouts.
It is unfortunate I think that the parties and those acting for them enter upon these debilitating lengthy trials about issues of this nature where their past history is dug over to determine some aspect which it is thought might weigh a slight imbalance one way or the other. The likely outcome is simply that the small amount of property which the parties had is dissipated by payments to their lawyers, and the outcome of equality of contribution is highly predictable from the very first moment that these proceedings commence. I think that lawyers have a strong obligation to bring those issues to their clients' attention when property cases of this ordinary type commence. Otherwise the parties' expectations may be artificially built up, but are usually disappointed when the matter comes to trial.
Similarly, to contemplate an appeal in relation to such a finding seems to me to be folly. The outcome of this appeal, so far as it related to contributions, was, I thought, a foregone conclusion. It was a typical case of approximately equal contributions of a disparate nature over a significant period of time. It is important that lawyers bring that knowledge to their clients' attention so that they do not enter upon a second stage of costs where the prospects of success are extremely limited, especially because of the appeal principles which apply.
Overall this case falls classically within what the present Chief Justice of the High Court described as the "generous ambit within which reasonable disagreement is possible". It is important that practitioners bring that test to the minds of their clients before they enter upon an appeal which is only going to be a disappointment to them.
[34] Doherty & Doherty (1996) FLC ¶92-652 at pp.82,684-685. See also the brief comments of Baker J, the other member of the Full Court in Doherty, at pp.82,682-683.
I have previously indicated that I accept the Wife’s submissions in relation to contributions, which should be taken as equal during the relationship. This view is fortified in the light of the decisions to which I have just referred and such evidence as there is before the Court.
Further, from each party’s trial affidavits, in my view, the basic facts that would relate to contributions are little disputed. For example, both parties confirm that at the commencement of the relationship in 1993 Mr Hodges was on a disability pension due to an injury to his back. Also at the commencement of the relationship Ms Mancini had a house in (omitted) (subject to a mortgage); Mr Hodges brought few assets into the relationship.
The parties lived in the Wife’s residence in (omitted) for the first few years of the relationship. Upon their move to Canberra in 1996, the (omitted) residence was rented for one year before being sold in 1997. The Wife made the mortgage repayments on the (omitted) property between 1993 and 1997. The proceeds of sale of that residence were used in the purchase of a house in the Canberra suburb of (omitted).
During the relationship both parties worked in various jobs. Ms Mancini worked full time in the (omitted) until 2008. Mr Hodges studied for a degree in (course omitted) while still employed in the (omitted), which employment began in 1994. He began employment as a contractor in (omitted).
In or around 2003 the parties purchased a farm at (omitted). Mr Hodges said that he worked on it every weekend and that Ms Mancini worked on it only irregularly. It was contended that that property was sold in approximately 2009, but which resulted in minimal net proceeds.
In either 2007 or 2008 the parties purchased another property in (omitted), in (omitted) New South Wales. It is this property that became the subject of a mortgagee sale by the (omitted) Bank.
There was some contest both in the affidavits and briefly in cross-examination regarding the stock – as to the number, quality and value of the (livestock omitted). Ms Mancini said that she could not run the farm, both because she did not know how to do so and because of her ill-health. Mr Hodges complained that the number and quality of the (livestock omitted) should have been higher than was ultimately the case. The evidence was rather inconclusive in relation to such matters.
I have already noted that during the course of the relationship the children of each party, at various times, stayed with them.
This brief factual narrative or overview provides no basis to take the matter out of what Fogarty J described in Doherty as warranting the assessment of the disparate contributions by the parties during the relationship as anything other than equal.
The third stage of the usual ‘four step process’ is to consider the matters set out in s.75(2) of the Family Law Act1975 (“the Act”).[35]
[35] Among many places in relation to the proper procedure in property matters, and subject to the comments of the High Court in Stanford v Stanford (2012) 247 CLR 108, see AJO v GRO (2005) 33 Fam LR 134 at [46].
In this regard, I have already noted the ages of the parties, their respective states of health (or ill health in the case of the Applicant).[36] I have also noted the income earning capacity of the Husband and, given her poor health, the lack of same on behalf of the Wife. The debts of the relationship are also earlier set out; and there is Mr Hodges’ evidence regarding (a) his contract of employment and (b) the impact of any relevant orders to recover or enforce spousal maintenance owing pursuant to orders earlier made by this Court. He referred in particular to the (high) likelihood of bankruptcy.
[36] The only evidence of the Respondent in relation to “health issues”, apart from some reference to skin cancers, related to a knee injury which now prevents him from (omitted). See T 39.
There are no children of the relationship. Neither party has the responsibility to support any other person. The Wife’s disability pension details are before the Court.
There is little evidence regarding the standard of living of the parties save that each necessarily lives modestly. The length of the relationship is not disputed. No issues of co-habitation arise.
The fourth “stage” requires the Court to consider and make orders that are just and equitable between the parties. The orders indicated by the Court, in my view, satisfy this final requirement.

Conclusion

In relation to spousal maintenance, in all of the circumstances the amount that I propose ordering is $400 per week. In order 2 as sought by the Applicant in relation to the third party notice, the period that should be specified in that order should be 28 days.
In relation to the super splitting orders, the amount that I propose ordering in favour of the applicant is 87%, and that applies in relation to order 9 and order 13.
And, obviously, also with the amendment as indicated by Mr Farrar in relation to order 12 as sought by the super fund, that order should also be made.
I also make orders which are by consent as indicated by Mr Hodges; namely, that he is to lodge a tax return by the end of August; that any tax refund that he receives be paid directly to the de facto Wife; and that she will indemnify him in relation to any costs in relation to the payment of the pay out of the lease on the vehicle involved.
A further order as sought by the de facto Applicant Wife, which should be made, relates to Mr Hodges notifying her within 48 hours of him securing employment through any agency other than (omitted) Pty Ltd. Apart from the amendments noted, the orders of the Court are those as sought by the Applicant Wife.
In all of the circumstances, but particularly because of the way the matter has, unfortunately, been conducted (again giving every allowance for Mr Hodges as a self-represented litigant), I agree again with the submissions made by Mr Farrar, which must lead to an order for costs. However, in all of the circumstances, the most modest award for costs should be made, which will be in the sum of $2500.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Neville

Date: 19 September 2013

[2013] FCCA 1392

3 July 2013

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