MB and MB
[2008] FCWA 99
•29 AUGUST 2008
[2008] FCWA 99
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY LAW ACT 1975 |
| LOCATION | : | PERTH |
| CITATION | : | MB and MB [2008] FCWA 99 |
| CORAM | : PENNY J | ||
| HEARD | : JUNE 2008 | ||
| DELIVERED |
| ||
| FILE NO/S |
| ||
| BETWEEN |
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Applicant/Wife
AND
MB
Respondent/Husband
Catchwords:
Property settlement - spousal maintenance - wife's application undefended - wife physical and intellectual disabilities - children with disabilities - property settlement wife to receive 70% of assets - lump sum maintenance to wife - husband to pay wife's costs
Legislation:
Family Law Act 1975 - s 75(2), s 79, s 117(1)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Mr M Kavanagh |
| Respondent | : | No Appearance |
[2008] FCWA 99
Solicitors:
| Applicant | : | Klimek & Co |
| Respondent | : | Not Applicable |
Case(s) referred to in judgment(s):
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener)
(2003) FLC 93-143
Mitchell and Mitchell (1995) FLC 92-601 at 81,995
Pierce v Pierce (1999) FLC 92-844
Weir and Weir (1992) FLC 92-338
[2008] FCWA 99
1 The wife, [Ms MB] filed an application on 21 December 2003 seeking 70% of
the asset pool and a lump sum payment for spousal maintenance. After substantial delays in the proceedings, the wife was granted leave to proceed on an undefended basis on 5 May 2008.
2 The wife now seeks a division of 80/20 in her favour.
History of the proceedings
3 Proceedings were instituted by the wife in [the south] on 21 December 2003 in
relation to the parties’ property and their children. The husband, [Mr MB] filed a response on 16 February 2004. The husband sought children orders and that the parties’ net assets be divided as this Honourable Court thinks fit.
4 The matter came before the Court on 8 March 2004. Due to medical problems
experienced by the wife, her mother, [Mrs G] was appointed her Next Friend for the purpose of these proceedings. At the conclusion of this hearing the husband was also ordered to file and serve an amended response setting out with particularity his proposals for property settlement.
5 On 28 June 2004 the parties were ordered to exchange valuations of the former
matrimonial home. The husband was ordered to produce to the wife the last three completed member statements of his superannuation entitlement, and details of his salary packaging. He was given a further 21 days to file his proposals for property settlement.
6 A conciliation conference was conducted on 29 July 2004. The file note dated 4 August 2008 records the following:
“The parties have reached an agreement.
The agreement also includes superannuation splitting and accordingly the superannuation funds need to be given notice of the effect of these orders.
It is hoped that a minute will be filed within the next two weeks.”
7 On 20 August 2004 the wife’s solicitors at the time wrote to the Court advising
that a Minute of Order will be forwarded to the Court in approximately one month. It noted that the parties are contemplating a superannuation splitting order and as yet the superannuation fund had not been provided the requisite notice.
8 The wife’s solicitors wrote to the Court again on 8 September 2004 stating that
the parties had made no progress towards a settlement and requesting a directions
hearing.9 Consequently, the parties attended a procedural conference on 29 October 2004. The negotiations were unsuccessful and the matter was placed in the defended list with an estimated hearing time for 3-4 days and a pre-trial conference was listed on 25 February 2005.
[2008] FCWA 99
10 On 25 January 2005 the husband’s solicitors filed a notice of ceasing to act.
11 The husband did not attend the pre-trial conference on 25 February 2005. The
file note indicates that the wife did not want to progress with the matter at that stage. Consequently the conference was adjourned generally with liberty to relist to a procedural conference. The matter was removed from the defended list.
12 Although the parties continued to be involved in the Court process during 2006 in relation to their children, property settlement issues did not resurface again until the beginning of 2007. At a procedural hearing on 5 February 2007 the record of proceedings notes that the matter, as far as it relates to property settlement, be transferred to the Family Court of Western Australia with liberty to relist with reasonable written notice. It was also noted that the parties were attending alternative dispute resolution for financial issues.
13 On 1 May 2007 the wife’s solicitors wrote to the Court seeking to relist a procedural conference in relation to financial issues.
14 A procedural conference was consequently conducted on 23 May 2007. Both
parties attended this hearing. The husband was self-represented. The file note states that they were not able to resolve the dispute and were a significant distance apart. A number of orders were made in relation to disclosure and filing of documents. The matter was adjourned to a pre-trial conference on 31 January 2008.
15 Both parties attended the pre-trial conference, again the husband was self- represented. The following notes were made by Registrar Kaesar:
“The parties appear to be of the same view that this matter must proceed to
trial and that they are unable to resolve the issues themselves.I have therefore provided an extension of time for the parties to file their trial documents and have listed a Procedural Conference to monitor compliance with those orders. I have warned the parties that if one party complies with these orders and the other does not the matter may well proceed on an undefended basis.
There has been substantial delay in this matter since the Procedural Conference on 23 May 2007. This matter must proceed and the parties must comply with the orders.”
16 The matter was adjourned to a procedural conference on 25 March 2008. Both
parties attended this hearing. Prior to the hearing the wife filed her trial affidavit, a financial statement and a chronology on 28 February 2008. The husband did not file any material. Consequently, the matter was adjourned to the Duty Judge list on 5 May 2008 so that the wife could consider whether she wished to proceed on an undefended basis. The matter was also adjourned to a pre-trial conference on 1 May 2008.
17 The husband did not attend the pre-trial conference on 1 May 2008 and the issue of the wife’s costs of the hearing were reserved for the Duty Judge.
[2008] FCWA 99
18 On 2 May 2008 the wife filed an application for leave to proceed on an
undefended basis. She also sought that the husband pay her costs of the application
and the costs of the procedural conference held on 1 May 2008.19 The matter came before me in the Duty Judge list on 5 May 2008. The husband did not attend this hearing. I ordered that the husband’s Form 3A response filed on 16 February 2004 be struck out and that the wife have leave to proceed on an undefended basis. The matter was listed for trial in the Duty Judge list before me on 3 June 2008. At which time I reserved my decision.
Orders sought
20 On 3 June 2008 the wife provided to the Court the following minute of final
orders sought:
1. All financial orders be discharged.
2. In determining the net assets and liabilities of the parties the Court make what additional allowances it deems appropriate in relation to the Husband’s non-disclosure in relation to his salary, bank balances, share investments, superannuation, overseas bank account and Telstra shares.
3. The Husband pay the Wife such sum as represents 80% of the net value of the divisible assets of the parties.
4. Contemporaneous with the payment by the Husband to the Wife under paragraph 3, the Wife withdraw any caveat she may have registered against the title of the former matrimonial home being the whole of the land comprised in Certificate of Title Volume 1942 Folio 629.
5. Except as otherwise provided for in these Orders, the Husband and Wife each be the sole legal and beneficial owners of all items of all property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the name, possession or control of each of them respectively.
6. As and by way of lump sum spousal maintenance, the Husband pay to the Wife such sum as the Court deems appropriate in all the circumstances.
7. The Husband pay the Wife’s costs of and incidental to these proceedings on an indemnity basis.
21 The wife seeks an equal division of the parties assets based on contributions,
with a 30% adjustment in her favour to take to account s 75(2) factors. The wife has not placed a figure on her entitlement as she seeks that the Court makes appropriate findings based on the husband’s non-disclosure. This will be discussed in more detail later in my judgment.
[2008] FCWA 99
Background
22 The wife is 38 years of age and the husband is 47. The husband was born in England and according to the wife became an Australian citizen in or about 1991.
23 The wife is engaged in home duties. She has had epilepsy since she was 4 years
of age and suffers from intellectual difficulties, particularly in relation to her memory. Consequently she has only been able to work for short periods of time during her life. The husband is a service technician.
24 The parties first met in 1990 and began living together in 1991. They were married [in] 1994 in Buckinghamshire, England. They separated on 13 March 2001.
25 Since separation there have been some difficulties between the parties which resulted in the wife obtaining a violence restraining order against the husband in 2003 for 2 years. The wife’s mother, who often assists the wife in caring for the children and is the wife’s Next Friend in these proceedings, also obtained an interim violence restraining order against the husband at the beginning of this year.
26 There are two children of the marriage, [C], 12 years of age and [J], who is 9. [C] suffers from ADD and has learning difficulties. She has delayed language development and has had difficulties with her gross motor skills. [J] has been diagnosed with autism. He has substantial health and learning difficulties. He is currently in year 2 and has a full-time aide assigned from the Department of Education to assist him.
27 The children have lived with the wife since separation. The husband spends time with the children pursuant to consent orders made on 5 February 2007.
Assets & Liabilities
28 This application is brought pursuant to the provisions of s 79 of the Family Law Act 1975. The approach to be taken in relation to an application for property settlement is a four step process. Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143. Those steps are:
• identify the value of the assets and liabilities of the parties; • consider the contributions made by the parties within paragraph (a) to (c) of s 79(4); • consider the s 75(2) factors, together with any matters relevant pursuant to s 79(4)(d)-(g); and • consider whether the order proposed is just and equitable. 29 The husband has not complied with disclosure orders. He did initially file a financial statement at the time of filing his Form 3A response on 16 February 2004. On 5 May 2008 I ordered the response to be struck out. The response contains the only property order sought by the husband. It is simply that the assets of the parties be divided as this Court thinks fit.
[2008] FCWA 99
30 Throughout the proceedings the wife’s solicitors have attempted to obtain
disclosure from the husband to no avail. The wife says the husband has only provided her with very limited disclosure. The wife has also issue five subpoenas in an attempt to obtained details relating to the husband’s employment, shares, bank accounts and superannuation. Four subpoenas were returned on the day of the trial.
31 In Weir and Weir (1992) FLC 92-338 the Full Court considered the effect of non-disclosure by a party:
“It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
It is true that in the case of Monte and Monte (1986) FLC 91-757, the Full Court said that to found jurisdiction under s. 79 in relation to property other than that which had been identified, the trial judge was obliged to make a finding as to the existence and value of other undisclosed property, even though the unsatisfactory nature of the evidence made it necessary to express that finding in the most general terms both as to identify and value.
We confess to some difficulty with this proposition. We should have thought that the Court's jurisdiction to make an order going beyond the identified property arises once there is sufficient evidence to support a finding that the party has not made a full disclosure of his or her assets.”
32 As a result of the nature of these proceedings the schedule of assets and
liabilities will contain unavoidable gaps. All the information relating to the parties’ current financial position has been provided by the wife. The wife has provided supporting material, where available to support the valuations of the husband’s assets. In all cases I intend to take into account all the amounts provided by the wife however there are some figures that I will briefly discuss.
33 The wife has included the value of the former matrimonial home situated at
[the address in the northern suburbs] at $365,000. The home was purchased in the husband’s sole name in 1992 for $92,000. In his financial statement filed on 16 February 2004 the husband stated the value of the home to be $190,000. Since this time the wife says the husband provided on 21 February 2008 a valuation of $370,000 to $380,000 which he had written down on a real estate promotional flyer. On 22 May 2008 the wife obtained a restricted assessment from CBRE. The assessment was based on comparative sales and provided an indicative market range of $355,000 to $375,000. A value of $365,000, being the mid point of the restricted assessment, is appropriate.
34 The husband has two disclosed superannuation entitlements, ING Australia and
Australian Super. In his financial statement filed on 16 February 2004 he stated the total amounts of the funds as $20,051, with $17,905 held by ING and $2,146 in a fund he referred to Australian Retirement Fund. In the schedule of assets prepared by the wife for trial the ING superannuation was at $25,635 and the Australian Super at
[2008] FCWA 99
$18,110. Both figures were calculated as at 30 June 2007 and were ascertained from member statements disclosed by the husband. The superannuation figures then changed significantly at trial as a result of the subpoenaed material. Consequently, the Australian Super stood at $20,066 as at 31 October 2007 and the ING fund was significantly reduced to $284.78. Although it appears the husband may have utilised almost the entire ING funds within a year I am not prepared to include the ING fund at $25,635. I will take it into consideration when assessing the husband’s contributions, or lack thereof.
35 From the subpoenaed material received from ANZ bank it was evident that the
husband had at least four accounts. Two of the accounts remain active and two have been closed. The total amount held in the husband’s ANZ accounts is $44,500. In reviewing the subpoenaed material the wife’s solicitor pointed out that there have been significant withdrawals of funds from the husband’s account since the parties separated. For example, the wife’s solicitor indicated that from March 2003 to January 2006 there was approximately $28,589 in large sum withdrawals from the husband’s ANZ access account. This account was closed on 26 September 2006. On 18 July 2007 there was $15,000 withdrawn from the husband’s Visa debit card. This account has also now been closed. It is not known why these sums were withdrawn or how they were expended. The wife did not put forward an argument to add back these amounts and based on the evidence before me, I am not prepared to do so, however as mentioned above, I will consider them when taking into account the parties’ contributions.
36 The wife is unsure whether the husband has any funds reserved for the children.
In two letters to the wife the husband has referred to monies saved for the children and assisting the children by establishing a trust fund for them. I do not think it is appropriate to include any amount in the asset pool in relation to this issue. There is not enough evidence for me to be satisfied that the husband has designated separate funds for the children. In my opinion if the funds do exist, it is likely that they are held in one of the husband’s ANZ accounts.
37 The wife also argues that the husband has an overseas bank account that he
utilises when visiting England. The wife filed a notice to admit facts on 28 February 2008 seeking, inter alia, an admission from the husband that the overseas bank account exists. The husband has filed no response to any of the notices to admit facts filed by the wife. Again I have no indication as to what this sum would be, again I do not intend to include an additional amount.
38 In the asset pool submitted by the wife for trial, there are nil liabilities listed for
either party. She attests that the mortgage over the former matrimonial home was discharged some time prior to separation. In her trial affidavit the wife refers to owing her mother around $56,000 which she borrowed to meet the legal costs of these proceedings. I will not add back the legal fess or include the debt in the assets and liabilities of the parties.
Assets Husband Wife [the matrimonial home in the northern suburbs] $365,000
[2008] FCWA 99
ANZ Accounts 44,500 Telstra Shares 3,750 ANZ Bank Account nominal
Household Contents NK 900 Total Assets 413,250 900 Liabilities Nil Nil Superannuation
Australian Super 20,066 ING Share Investments 284 AXA Superannuation 1,398
Net Total Assets $433,600 $2,298
Contributions
39 At the commencement of their relationship the parties had little assets. The wife
originally stated in her trial affidavit that the husband brought from England a significant amount of cash but she could not remember the exact amount. At trial the wife’s solicitor lead further evidence that the wife believed the amount to be approximately $37,000, being the amount the husband contributed towards the purchase of the former matrimonial home. The property was purchased in the husband’s sole name in 1992 for $92,000. This was after the parties commenced cohabitation but prior to their marriage. The mortgage over the property was secured for approximately $55,000. The mortgage has since been discharged. The wife says this occurred some time prior to separation although she cannot remember the exact date. The husband has remained in the home since separation. The wife has been required to find rental accommodation initially with family, and now through Homeswest.
40 At the time of the parties’ marriage the wife says the parties were gifted approximately $7,000 from the wife’s mother.
41 The husband worked full-time throughout the marriage as a service technician.
His position provided him with the use of a company vehicle with expenses such as fuel and maintenance paid. The husband’s wage was applied to support the family and to meet the mortgage repayments. From the subpoenaed material the husband wages from 2002 to 2008 have not increased dramatically. In 2003 his income was $23,540 per annum and his current base salary is approximately $39,000.
[2008] FCWA 99
42 During the marriage the wife was the primary care giver to the parties’ children
and the principal homemaker. This role has been made more challenging for the wife in that not only does she deal with her own illnesses, the children have special needs and require increased care. The wife has also made some minimal financial contributions during the relationship. She worked as a nursery hand for a year prior to the commencement of cohabitation and for a year after the parties began living together. Her income was approximately $20,000. Since that time her financial contributions have been the government benefits she receives.
43 Based on the circumstances of this case I consider it appropriate to assess
contributions as equal. The husband was the main financial provider for the family and the wife was the primary care giver and homemaker. The parties accumulated few assets during their relationship, the only asset of significant value being the former matrimonial home. I acknowledge that the husband contributed a substantial deposit to purchase the home, however in my view an adjustment in his favour is not appropriate. In Pierce v Pierce (1999) FLC 92-844 the Full Court considered the erosion of the husband’s significant initial contribution where the parties had cohabited just over ten years:
“In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all the other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home..”
44 The parties cohabitated for 10 years. The husband has expended or dissipated
significant funds post separation. It is not known how the funds were applied. The wife has not had the benefit of any of the funds. The only financial assistance she has received from the husband since separation has been child support payments. The wife has been responsible for the care of the children for the last five years which, when considering her disabilities and those of the children, has been a very significant contribution.
Section 75(2) factors
45 The wife suffers from both physical and mental disabilities. She has had
epilepsy and intellectual difficulties, particularly in relation to memory function.
There is no evidence to suggest that the husband has problems with his health.46 The wife is currently unemployed. Her only income is through government
benefits and child support. There is little prospect that she will ever re-enter the work force. Her health problems and responsibility to care for special needs children will limit any such attempt. The wife intends to remain the primary carer for the children, and says this will continue after the children reach the age of 18 as they will still require significant assistance.
[2008] FCWA 99
47 In his report dated 14 October 2003 the wife’s treating neurologist Dr Peter Silbert made the following comments in relation to the wife’s ability to work:
“[Her] epilepsy and intellectual difficulties will be lifelong. She is likely to have periods such as have occurred over the last 12 months where her seizure control is suboptimal, and adjustments to her medications are required.
Her earning capacity would be limited. She has two young children which she manages to care for with support from her mother, but the level of support that she has demonstrated that she requires suggests that any employment prospects would be limited, and only in a supervised capacity.
There may be periods of time in the future where she does require additional input from her mother who has been her main caregiver over the years. This may include assistance with domestic duties, financial activities or care of the children.”
48 The husband is employed as a service technician. His current income is modest
at approximately $39,000. He does have the benefit of a company motor vehicle. Since separation the husband has met his child support responsibilities. He is currently assessed to pay $101.92 per week for the assessment period of 1 July 2008 to 28 February 2009. He spends time with the children every alternate weekend.
49 As the asset pool currently stands neither party has any liability. However, the
wife has given evidence that she has had to borrow significant sums from her mother to meet the legal costs she has incurred for the purposes of these proceedings. She says the loan stands at $56,000.
50 The husband has had the benefit of residing in the former matrimonial home
since separation while the wife has had to obtain rented accommodation. After living with family members following separation, the wife now rents a Homeswest unit which she says is in fair condition.
51 A substantial adjustment in favour of the wife for s 75(2) factors is necessary. If
there was not the wife would be unable to accumulate her own assets or acquire any security or stability. Her ability to earn is restricted by her lack of mental and physical capacity, and her responsibility to care for two special needs children, particularly in relation to the parties’ son, [J]. It is likely her responsibility to care for the children will continue well beyond them attaining 18 years of age. If the wife was ever able to return to work it is likely to only be on a part-time or short term basis.
52 There should be an adjustment of 20% in favour of the wife, with an overall division of 70/30 in favour of the wife.
Just and Equitable
53 Pursuant to my determination the wife is to receive 70% of the parties’ assets,
and the husband 30%. The wife is entitled to assets totalling $305,129 and the husband $130,769. As a result of the division there appears to be no other option but to
[2008] FCWA 99
order the sale of the former matrimonial home. Consequently if the property is sold for $365,000, and the parties retain their current assets, the wife should receive approximately $302,831 from the sale of the property and the husband $62,169. In my opinion, in the circumstances of this case, in particular in light of the financial hardship faced by the wife and the husband’s continued disregard to his obligations of disclosure, the wife should be paid her full entitlement, including any orders I make in relation to costs or spousal maintenance from the sale of the former matrimonial home.
54 Although the husband will receive only a small amount from the sale of the
former matrimonial home, together with the funds in his ANZ accounts he will be in a position to establish new accommodation. Further, the husband has a substantial benefit over the wife in his ability to continue to earn a steady and consistent income and accumulate superannuation while it is highly likely the wife’s income capacity will be restricted to government benefits.
55 On consideration of the final division the orders I intend to make are just and
equitable.
Spousal Maintenance
56 The wife seeks an unspecified lump sum spousal maintenance payment from the husband. Section 72 of the Family Law Act states:
“A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether –
(a)
by reason of having the case and control of a child of the marriage who has not attained the age of 18 years;
(b)
by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason, having regard to any relevant matter referred to in sub-section 75(2).”
57 Whether the wife can “adequately” support herself is not determined by any
fixed or absolute standard but rather having regard to the matters in sub-section 75(2) and in particular the three factors listed above. (Mitchell and Mitchell (1995) FLC 92- 601 at 81,995
58 In my opinion it is clear that the wife is unable to adequately support herself by
reason of physical and mental incapacity for appropriate gainful employment. I have referred previously in this judgment to the difficulties the wife faces in obtaining employment, not only in regards to her own medical problems but in caring for two special needs children. In her financial statement filed on 28 February 2008 the wife falls short by approximately $206 per week based on $474.63 she receives in government benefits and child support and expenditure totalling $680.70.
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59 As a result of the property settlement I intend to order the wife will receive from
the sale of the former matrimonial home approximately $302,831. She also has furniture valued at approximately $900 and superannuation of $1,389. The husband will access to approximately $106,669 as a cash component, being $62,169 from the sale of the former matrimonial home and $44,500 contained in ANZ accounts. He will also retain $3,750 in Telstra shares and $20,350 in superannuation. Another important factor in this case is that the husband will continue to earn a steady income and accumulate superannuation while there are little such prospects for the wife.
60 In consideration of all the circumstances in this case, particularly that the
husband is now required to establish alternative accommodation, a payment of $10,000 is an appropriate lump sum to pay to the wife for maintenance. This will reduce the cash component available to the husband to $96,669.
| Costs | |
| 61 | The wife seeks the husband pay her costs of and incidental to these proceedings |
| on an indemnity basis. She says she has had to borrow significant sums from her mother in order to fund these proceedings. In her financial statement filed on 28 February 2008 the wife states a liability of $56,000 as a loan from her mother for legal costs. | |
| 62 | Pursuant to s 117(1) of the Act, subject to sub-section (2), each party will bear |
| their own costs. Section 117(2) states that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to the matters contained in s 117(2A), make an order as to costs. I will now deal with those matters relevant to this case. | |
| (a) | the financial circumstances of each of the parties to the proceedings |
| 63 | The wife is entitled to 70% division in her favour. The former matrimonial |
| home will be sold and the wife is entitlement to receive approximately $305,129 of the total asset pool. She will also receive a lump sum payment of $10,000 for spousal maintenance. | |
| 64 | The husband will receive approximately $130,769 from the asset pool, of which |
| approximately $106,669 is a cash component, which would be reduced to approximately $96,669 after spousal maintenance is paid. | |
| 65 | The husband is employed on a full-time basis and earns approximately $39,000 per annum. The wife is unemployed, has limited ability to enter the work force based on her medical problems. Her source of income is a combination government benefits and child support payments. |
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| (c) | the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, direction to answer questions, admissions of facts, production of documents and similar matters |
66 These proceedings have been unnecessarily drawn out. They were initially
commenced by the wife in December 2003. The property settlement trial occurred some 4½ years later when the wife was given leave to proceed on an undefended basis. The husband’s conduct in failing to particularise his claim, comply with disclosure or file trial material have protracted these proceedings, and certainly unnecessary costs to the wife.
67 The parties reached an agreement in relation to their property at a conciliation
conference on 29 July 2004. A Minute of Orders sought was to be filed by the parties. On 8 September 2004 the wife’s solicitors informed the Court that there was no longer a settlement and the matter was re-listed for a pre-trial conference on 25 February 2005. The wife says in her affidavit filed on 2 May 2008 that the husband refused to sign the Minute of Consent Order. The husband did not attend the pre-trial conference and the wife informed the Court that she did not want to progress the case at that stage and the conference was adjourned generally with liberty to relist to a procedural conference. The matter was removed from the defended list. Despite remaining involved in the Court process in relation to children’s issues, the property settlement proceedings did not become active again until the beginning of 2007.
68 The delay in continuing the property settlement proceedings appear to relate to
the wife’s fear of the husband’s reaction. She stated in her trial affidavit that she is very intimidated by the husband and that she has had difficulties accepting certain advice from her solicitors in fear of upsetting the husband.
69 The wife’s solicitors have repeatedly requested proper disclosure from the
| husband. Further the wife says throughout the court process her solicitors have made offers of settlement to the husband, which have been rejected. | |
| (d) | whether any party to the proceedings has been wholly unsuccessful in the proceedings |
70 In her originating application filed on 21 December 2003 the wife sought 70% of
the parties’ assets and a lump sum spousal maintenance payment as deemed appropriate by the Court. At trial the wife increased the division sought to 80% in her favour. As a result of my judgment she will receive 70% of the asset pool and $10,000 lump sum spousal maintenance payment. In general terms the wife has been successful in her application.
71 The husband has not at any stage quantified or particularised the division he
sought. He was ordered on at least two occasions by the Court to do so but he did not
comply.72 Taking into account the circumstances of the case, in my opinion, the husband
should make a contribution towards the wife’s costs. It is not appropriate that
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indemnity costs be ordered in this case. As a result of my orders, the husband is to only receive approximately $120,769 from the asset pool, after spousal maintenance has been deducted, of which $20,350 is superannuation. I consider $10,000 to be an appropriate amount for the husband to contribute towards the wife’s costs.
Proposed Orders
1 The former matrimonial home situated at [the address in the northern suburbs] being the whole of the land comprised in Certificate of Title Volume 1111 Folio111 be sold.
2 The proceeds of the sale referred to in paragraph 1 be distributed as follows:
(i) in payment of any real estate agent fees and legal costs associated with the sale of the property; (ii) in payment of any outstanding rates and taxes; (iii) the proceeds of sale be divided so that the wife receive 70% of the total asset pool and $20,000; and (iv) the balance to the husband. 3 In the event the husband refuses to sign all the required documents to enable the sale of the former matrimonial home the Registrar of the Family Court of Western Australia be authorised to execute the necessary documents on the husband’s behalf.
4 The wife withdraw any caveat she has registered against the title of the former matrimonial home referred to in paragraph 1.
5 Except as otherwise provided for in these Orders, the husband and wife each be the sole legal and beneficial owners of all items of all property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the name, possession or control of each of them respectively.
6 The application otherwise be and are hereby dismissed.
I certify that the preceding [72] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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