MCKENNA & MCKENNA
[2013] FCCA 925
•28 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCKENNA & MCKENNA | [2013] FCCA 925 |
| Catchwords: FAMILY LAW – Property – assessment of Australian and (country omitted) pools – modest Australian pool – difficulty in identifying (country omitted) assets and liabilities – assessment of contributions – consideration of religious dowry owed to Wife – consideration of just and equitable principles. |
| Legislation: Family Law Act 1975, s.75(2) |
| Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 Kowaliw (1981) FLC 91-092) |
| Applicant: | MR MCKENNA |
| Respondent: | MS MCKENNA |
| File Number: | SYC 4894 of 2011 |
| Judgment of: | Judge Baumann |
| Hearing dates: | 6 – 7 March 2013 |
| Date of Last Submission: | 28 June 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 28 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Othen |
| Solicitors for the Applicant: | Barkus Doolan |
| Counsel for the Respondent: | Mr Connor |
| Solicitors for the Respondent: | Rockwell Olner (Sydney) Pty Ltd |
ORDERS
The sale of the home described as Property D in the State of New South Wales, having the folio identifier (omitted), held in the joint names of the Husband and Wife continue pursuant to the interim orders made by consent on 25 February 2013 by Federal Magistrate Baumann.
In the event that the Property D home is sold (in accordance with the interim orders of 25 February 2013 as confirmed in order 1 hereof) then, on settlement of the sale of the Property D home, the proceeds of sale shall be paid in the following manner and priority:-
(a)The amounts required to discharge the loan secured by mortgage over the Property D home (including any enforcement costs);
(b)All costs and expenses of sale including legal costs and disbursements, agents’ commissions, advertising expenses, valuers’ fees and auction expenses;
(c)The amounts required to pay all municipal and water rates outstanding with respect to the Property D home;
(d)The amount required to pay the usual conveyancing adjustments;
(e)In reimbursement to each for any costs or expenses associated with preparing the Property D home as agreed by the parties in writing; and,
(f)The balance then remaining to be paid to the Husband.
Pending the completion of the sale of the Property D home, the Husband shall be responsible for payment of the following as and when they fall due:-
(a)all repayments under the Property D home mortgage;
(b)all Counsel and Municipal rates;
(c)all water rates; and,
(d)all outgoings in respect of the Property D home.
Except for any paragraph of these orders that provides to the contrary, as against the Husband, the Wife is solely entitled to, and the Husband has no interest in:-
(a)The Toyota Corolla motor vehicle registered in the Wife’s sole name;
(b)The Wife’s superannuation entitlements held in her name;
(c)All bank accounts held in the Wife’s sole name;
(d)The Wife’s personal effects and jewellery; and,
(e)All other property and financial resources in the name or control of the Wife as at the date of making final orders.
Except for any paragraph of these orders that provides to the contrary, as against the Wife, the Husband is solely entitled to and the Wife has no interest in:-
(a)All bank accounts held in the Husband’s sole name;
(b)The Husband’s personal effects;
(c)All superannuation entitlements held in the Husband’s sole name; and,
(d)All other property and financial resources in the name or control of the Husband as at the date of making final orders.
Except as specifically provided for by any paragraph of these orders to the contrary:-
(a)the Wife hereby indemnifies the Husband from and in respect of all actions, claims, suits and demands as may be made against the Husband in relation to all liabilities in the name of the Wife; and,
(b)The Husband hereby indemnifies the Wife from and in respect of all actions, claims, suits and demands as may be made against the Wife in relation to all liabilities in the name of the Husband.
Both parties do all acts and things and execute all documents, authorities and writings as are necessary to give effect to all or any of these orders.
In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these orders, then a Registrar of the Federal Circuit Court of Australia be appointed pursuant to s.106A of the Act to execute such deed or instrument in the name of the defaulting party and to do all acts and things necessary to give validity and operation to the deed or instrument.
Any application for costs (including reserved costs) shall be filed and served within twenty-one (21) days from the date of these orders.
IT IS NOTED that publication of this judgment under the pseudonym McKenna & McKenna is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
SYC 4894 of 2011
| MR MCKENNA |
Applicant
And
| MS MCKENNA |
Respondent
REASONS FOR JUDGMENT
(settled from extempore reasons)
Introduction
The couple in this case were married in (country omitted) in (omitted) 2000, and soon after commenced cohabitation. The parties are intelligent people with tertiary qualifications gained from (omitted) Universities – being (omitted) (Husband) and (omitted) (Wife).
Although the parties migrated to Australia in 2007, and are now permanent residents in Australia, their financial position is quite modest in this country.
What hangs over the disputed property proceedings agitated in this Court is the value of property interests of the Husband in (country omitted), and the effect on those interests of a “(omitted)”, which is a form of customary dowry under (omitted) law. These issues are dealt with in these reasons when the Court was asked to determine the competing proposals.
Competing proposals
The Applicant Husband’s ‘Minute of Orders’ was marked as Exhibit 2 in the proceedings. They proposed that:-
a)The Husband retain the assets in (country omitted); and,
b)The Husband retain the net proceeds of sale of the Property D home (with the Wife to be responsible for payment of all outgoings on the mortgage and unit, pending sale).
The Husband sought the following specific order, which related to the (omitted). Namely:-
“3.Within 14 days from the date of the making of these orders, the Wife do all acts and things and sign all documents necessary to:-
3.1 relinquish any entitlements she may have in the (omitted) (“dowry”) payable in (country omitted); and
3.2 release any encumbrance, withdraw any claim, suit or demand in relation, to enforcement of the Husband’s obligations (if any) under the (omitted) (“dowry”) including the encumbrances over the (country omitted) property and the (country omitted) property.
4.In the alternative to order 3 (including subparagraphs) of these orders, if the Court orders the payment of any sum to the Wife by the Husband, by way of property settlement then, that payment shall be made conditional on the Wife doing all acts and things and sign all documents necessary to:-
a) relinquish any entitlements she may have in the (omitted) (“dowry”) payable in (country omitted); and
b) release any encumbrance, withdraw any claims, actions, suit or demand in relation to enforcement of the Husband’s obligations (if any) under the (omitted) (“dowry”) including the encumbrances over the (country omitted) property and the (country omitted) property.”
The Wife maintained the position originally set out in her Response filed 19 October 2011, that:-
a)Within 28 days, the Husband shall pay to the Wife the sum of $250,000 and discharge any encumbrance over the Property D property so as to enable the Husband to transfer to the Wife a full unencumbered interest in that property.
b)The Husband should retain the (country omitted) property, his shares in (omitted) Pty Ltd, and the investments in his brother’s companies.
In essence, as can be seen, the effect of the Wife’s application was to seek to enforce the rights alleged to exist in the “(omitted)” against the modest Australian assets. To be fair to the Wife, at the time the Response was filed on 19 October 2011, the Wife asserted that the assets in Australia greatly exceeded those found to exist by the Court in these proceedings.
Principles
Briefly stated, but more concisely and elaborately described in the Full Court decision in Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143, in a property settlement case, the Court must adopt a well-known four-step process, essentially:
a)to identify the pool of assets and liabilities generally, and usually at the time of hearing;
b)to assess the relative contributions of both the financial, non-financial, direct and indirect nature as specified by s.79(4);
c)to consider the factors as are relevant contained in s.75(2) of the Act; and, finally,
d)consider the ultimate analysis to determine whether the order the Court proposes to make it just and equitable to both parties.
Brief history
To the extent that the following brief history contains statements of fact, those statements should be regarded as findings of fact.
The Husband is now aged 41, having been born in (omitted) 1971. The Wife is nearly 6 years younger at age 36, having been born in (omitted) 1977. At the time of the parties’ marriage in (country omitted) on (omitted) 2000, the Husband had graduated with a degree in (omitted) and was employed with the company (omitted).
As earlier recorded in these reasons, at the time of the marriage, and in accordance with local laws and customs, the Husband agreed to pay the Wife a (omitted) of 1,000 gold coins.
At the time of the marriage, I accept the Husband owned a unit at (country omitted) and also, as a result of his employment, held 430 shares in the company (omitted). The Wife at that time had no assets of significance.
(omitted) is an international company, and an opportunity for the Husband to work in (country omitted) arose shortly after the marriage. The Wife was still completing her (course omitted) at the University of (omitted), (country omitted) at this time, which she completed in mid-2001. The Husband’s income from his employment was, as a result, almost the sole source of support for this young married couple.
The Husband says, and I accept, that during 2002, he sold his unit at (country omitted) to his uncle Mr A for 1.86 billion rial – revealing a profit from its original purchase price of 910 million rial. The sale price was to be paid by instalments. As the reasons below reveal, some funds are still owed to the Husband by his uncle.
In 2004, the Husband was made redundant by (omitted), which necessitated the couple returning to live in (country omitted). The Husband says, and I accept, that he received a redundancy payment of around $US35,000. He was able to retain his shares in the company. Upon returning to (country omitted), the Wife commenced part-time employment at a (omitted), whilst the Husband continued to be the primary “breadwinner”.
Before the parties decided to migrate permanently to Australia in 2007, the Husband (utilising, I accept, the income received from his uncle under the sale contract for repayment by instalments), acquired a villa at (country omitted) for 550 million rial and, later, in 2006, a unit at (country omitted) for 1.2 billion rial. The (country omitted) unit was purchased with a bank loan of 300 million rial and is now tenanted.
In respect of these transactions in (country omitted), the submission of Counsel for the Wife at the hearing was that the Court should not accept the Husband’s evidence. It was clear to the Court that the Wife had little knowledge of the transactions – save for what she alleged the Husband had told her from time to time (corroboration by translated documents was not offered – if in fact they existed). Perhaps, not surprisingly, where the interests in (country omitted) (disregarding the (omitted)) amount to a modest sum of $AUD106,916, common sense in the use of probably expensive expert evidence was applied. This feature of the case made the Court’s determination more difficult. However, I generally found the Husband and his brother credible witnesses and despite the best endeavours of the Wife’s experienced Counsel, I was not satisfied that I should not accept the evidence of the Husband on these transactions.
The parties’ financial transactions after arriving in Australia from (country omitted), were principally the purchase of the Property D unit utilising:-
a)the first home owner grant of $7,000;
b)Some of the proceeds of the (omitted) shares or around $20,000; and,
c)A loan from a bank for $397,500. At the time of the hearing, the debt to the bank had increased to $421,000 – the increase arising from unpaid interest and other accruals. As is revealed below, the equity in that unit is minimal.
The Husband made an investment in a company called (omitted) Pty Ltd, which in turn owned 95/100 shares in another trading company called (omitted) Pty Ltd. The 50 shares acquired by the Husband in (omitted) Pty Ltd cost $80,000 – funded, I accept, by funds of $60,000 (again from his uncle in (country omitted) as a part payment of instalments) and some of the proceeds of the (omitted) shares. (omitted) Pty Ltd is in liquidation and, as a result, the Husband’s shares in (omitted) Pty Ltd have no value. The only apparent asset of (omitted) Pty Ltd was the shares in (omitted) Pty Ltd. Not surprisingly, Counsel for the Wife cross-examined the Husband and his brother about this entity and the trading conditions and activities of (omitted) Pty Ltd. It is noted that the appointed liquidator/administrator of (omitted) Pty Ltd was not called. There is no evidence before the Court that, on balance, raises concerns about the business being a farce or contrivance. All the evidence points to it just being financially unsuccessful. The Husband, of course, was only a minority shareholder in (omitted) Pty Ltd. He had no real control over his “investment”. It seems, I infer, that he basically relied upon the business acumen of his brother. His brother asserts he was a successful businessman but that this venture (not his only commercial activity) was sadly a failure. I do not regard the Husband’s conduct in investing in the business in the way he did as “reckless, wanton or negligent”. Whilst in hindsight it was imprudent, that is not the test. It is to be recalled, of course, that the funds he invested arose from the proceeds (by instalments) of his pre-cohabitation asset – the unit in (country omitted). The clear impression I formed was that the Husband felt entitled to invest “his” funds as he wished.
I deal later with the concerns the Court has about how the Wife withdrew $60,000 from her bank account on 29 October 2010 (being some four months after separation), and allegedly handed some to an Australian resident friend to take to (country omitted) to be invested by her father. The Wife gave evidence that the investment was an absolute failure. I am not convinced that any such investment was made. In my view it is more likely that the Wife, after separation, decided to have the funds removed from the jurisdiction. The funds represented savings accrued during the marriage. In the circumstances, I am comfortably satisfied that the Wife has benefited from a premature disposition of a marital asset.
The (omitted)
The Wife, at paragraphs 55 and 56 of her trial affidavit swears that:-
“55.Mr McKenna owes me one thousand (1,000) gold coins which amounts to $AUD363,636 as my (omitted). I have paid IRR 200,000 which was equivalent of $50,000 at the time of the marriage, as my (omitted) (similar to Dowry in (country omitted) culture), which is another (omitted) custom.
56.The (country omitted) property is “arrested” at present. This means that Mr McKenna cannot sell the property or transfer it to another person without my permission. The order restraining the property from being sold was made in or about the end of 2012. My father made the Application on my behalf.”
It was not possible for the Wife to produce her father as a witness or to have him give evidence. His evidence in respect of the (omitted) (as well as the Wife’s investment of $60,000 after separation), might have assisted the Court.
No evidence of the laws of (country omitted) so far as they might affect the property in (country omitted) or the rights of persons in (country omitted) (including the parties who now have Australian citizenship) was provided. However, both parties, for different reasons, assert that if they return to (country omitted) they face possible imprisonment. As I understand, for the Husband, this arises from his “failure” to pay the (omitted). The capacity for authorities to “arrest” his property seems to support the assertion that serious consequences flow against the Husband if he returns to (country omitted).
So far as the Wife is concerned, the parties agree that whilst the Wife can return to (country omitted), she would not then be able to leave the country legally without the Husband’s consent. The Husband says he would consent to her being able to leave “if the (omitted) issue was resolved”. The Wife said in cross-examination that she would be prepared to deal with the (omitted) “if I got my rights”.
Although Mr Othen tried to persuade me that the orders the Husband sought in respect of the (omitted) could be made and would have effect – I am not so satisfied. The authority relied upon of Reicher (an unreported decision of Justice Young given on 19 February 2008 – see Reicher & Reicher (2008) FamCA 108) was the basis for the following consent order:-
“10.THAT the Husband forthwith appear, if and when called upon by the Wife so to do, before the Melbourne Beth Din (Jewish Religious Court) and deliver into her hand a get (Jewish Bill of Divorcement) if and when the same has been ordered, directed or recommended by the said Religious Court and do all other acts and things as may be required of them to give validity and operation, according to Halakhah (Orthodox Jewish law), to any such order, direction, recommendation or grant by the said Religious Court for a divorce in accordance with Orthodox Jewish law, provided always and it is hereby declared that this order not be construed as in any way inhibiting, directing, influencing, or controlling any deliberation, decision, order, decree, direction or recommendation of the said Religious court or in any way inhibiting the Husband or Wife in making any application, request or submission to the said Religious Court or save as aforesaid, to deny him or her any right or privilege he or she would otherwise have.”
His Honour said at paragraph 4 of his reasons (which in total only contained five paragraphs) that:-
“4.There is an order incorporate within the minutes for the Husband to do all acts required so as to enable the announcement of a Jewish Bill of Divorcement to the extent that that provides for his obligation to physically hand over documents by or as directed by the Beth Din. The commonsense approach of the parties is for that divorce to be announced expeditiously and no doubt at minimum expense, which the Wife will wholly bear by the consent orders.”
I think the circumstances of the case of Reicher are clearly distinguishable from this case. At the very least, having resolved the property proceedings by consent, the parties agreed to do all things “to enable the announcement of a Jewish Bill of Divorcement”. Apparently, that could be attended to in Australia at the Melbourne Beth Din.
There is no evidence before me that remotely satisfies me that these parties can sign anything in Australia that is enforceable in (country omitted). Nor is there any order I can make that is likely to be recognised, and be enforceable, in (country omitted). It would, as a result, be futile to make such an order and I therefore elect not to do so.
Pool
Exhibit 1 is the balance sheet that identified various agreed items and issues in dispute. In this case, I have come to the conclusion that an asset by asset configuration of the pool is the most appropriate way to proceed, with the pools constituted by – Pool 1 (Australian-based assets and liabilities, including superannuation) and Pool 2 ((country omitted)-based assets and liabilities).
As previously set out in the reasons and as a discrete issue above, inclusion of the effect of the (omitted), in my view, unfairly distorts the pools. Both parties expose themselves to serious personal consequences, including risk of imprisonment, if they return to (country omitted). No orders this Court makes is able to or likely to either override those purported consequences, and, although I had no benefit of foreign law expert evidence, the parties have identified the consequences as they see it for the Court. Simply, there is insufficient assets in Australia to enable a proper adjustment on a proper basis to be made. These factors are all considered further when determining, as I do, the orders that do justice and equity to the parties.
However, for the reasons which I explore, I find the two pools to be as follows.
Pool 1 – Australian Pool Property D $460,000 Bank Accounts - Wife 2,834 - Husband 9,258 (omitted) Toyota Corolla 14,000 Add back Husband - Deposit on car 5,000 - Balance of (omitted) shares 9,000 14,000 Wife - Unexplained withdrawal 60,000 Superannuation Husband 38,046 Wife 47,395 $645,533 Liabilities Mortgage on Property D 421,000 Agreed selling costs 13,000 Toyota Finance (car loan) 13,000 $447,000 Net Pool One $198,533
Pool 2 – (country omitted) Pool
(in Australian dollar equivalent)Unit (country omitted) $80,500 Unit (country omitted) 13,888 Debt due by Uncle Mr A for (omitted) 13,888 (omitted) (payable to Wife) $363,000 $485,188 Liabilities (omitted) (owned by Husband) 363,000 Mortgage (omitted) 4800 Debt to tenant 9,870 $378,000 Net (country omitted) Pool $106,918 TOTAL NET POOL (if globalised) $305,451
It follows that, in my view, the total net pool, if globalised into Australian dollars, is a very modest $305,451. As the articulation of the (country omitted) pool of assets makes obvious, the inclusion of the (omitted) is “balance sheet” neutral. As I set out below, the availability of the (country omitted) assets to the Husband is seriously questionable with the Wife’s father in (country omitted) having “arrested” the properly at (omitted) under local laws. Whilst not seeking to minimise the importance to those parties of the modest pool division, even the Australian pool of assets swells with the inclusion of add-backs totalling $74,000.
A succinct explanation for the differences between the pool of assets set out above and the tendered balance sheet (exhibit 1) follows:-
a)I am not satisfied on the evidence that there are funds owed by the Husband’s brother, Mr F, as alleged by the Wife. The brother gave evidence and was the subject of careful cross-examination. Although the brother asserted he had operated a business in 2005 that grew to a business with a turnover of $130 million, the evidence does not establish that the Husband had an interest in that business or any other business other than the entity (omitted) Pty Ltd. The interest he had had in a related entity, (omitted) Pty Ltd, is now worthless as a result of its liquidation.
b)Although a great deal of time and effort was exerted by the Wife’s solicitors to seek to gather information and data about the brother’s businesses, the Wife has failed to establish, on the balance of probabilities, that any funds invested by the Husband and/or interests in the company vested in the Husband should have a current value to be included in the pool of Australian assets. Similarly, the Wife has failed to discharge the evidentiary onus that rested upon her about any loans owed by the said brother to the Husband (item 9 of the balance sheet).
c)On balance, I am satisfied that the evidence from the Husband about the balance of funds owed by the Husband’s uncle, Mr A, is to be preferred to the less than reliable evidence sought to be relied upon by the Wife. It must, of course, be acknowledged that one of the challenges in this case was the lack of clarity about the number of (country omitted) transactions unable to be properly the subject of cogent corroborative evidence from (country omitted). Many of these issues, as the transcript will attest, were the subject of discussions during final submissions with counsel retained by the parties.
d)I am not satisfied that the Husband’s mother owes the parties $28,000 as alleged by the Wife or any ascertainable sum.
e)As indicated, I accept broadly the evidence of the Husband’s brother when he said he owns the motor vehicle that the Husband drives. It should, as a result, not be included in the marital pool of assets.
f)The Wife asserted that the Husband’s interest in (omitted) Pty Ltd should be included in the pool at $69,920. In the absence of any reliable evidence of value, noting the qualified statements said to be against interest in the Husband’s earlier financial statements, and coupled with the evidence that the company’s interest in the liquidated company (its sole asset) is worthless, this compels a finding that the shares have no current value. I do accept, as the Wife and Husband both acknowledge, that the Husband from (country omitted) did contribute around $80,000 Australian dollars to this business venture. It is not established that the “investment” was wanton, reckless or negligent within the Kowaliw ((1981) FLC 91-092) principles.
g)The Wife seeks that the sum of $29,000, being proceeds of sales from some shares held by the Husband in (omitted), should be added back as a “premature disposition” in the Townsend sense (Townsend & Townsend (1995) FLC 92-569; 18 FamLR 505) sense. I accept the Husband’s evidence that he invested $20,000 of funds in the business referred to in the previous paragraph. It falls, in my view, in the same category as the $80,000 invested. I am not convinced by the Husband’s evidence that the use of the further sum of $9,000 was properly explained. He has had the benefit of those funds, (irrespective of when the shares vested) and the sum of $9,000 is therefore “added back”.
h)The Wife has not only failed to properly explain the use of $60,000 of joint funds she had access to, but, frankly, the explanation offered about giving funds to a friend, who is apparently a resident in Sydney, to take to (country omitted) for investment by her father or other family members was, in my view, fanciful. I accept the difficulties in producing evidence from her father, but no such difficulties were demonstrated in offering evidence from “the courier”. In those circumstances, I am satisfied that the inference that evidence of her friend was unlikely to be supportive of the Wife’s version of facts should be drawn. It is unhelpful to speculate whether those funds represent the same funds said to be owed by the Wife to her father – a debt that I also reject for lack of proof.
As higher authorities made clear, the discretion to “add-back” must be exercised cautiously on a case-by-case basis. I am satisfied the Wife controlled at least $60,000 and has failed adequately to explain where those funds are now or were used (save for a failed investment in (country omitted)). Having rejected that assertion, it is fair to both the Husband and Wife that the funds be “added back”. Finally, and for completeness, I find that with no reliable evidence of value of furniture or the (omitted) debt being offered, considering the small sums involved, it is fair to both parties to ignore such items.
Contributions
In respect of the Pool One assets, the various and diverse contributions made to their acquisition, improvement and maintenance since the parties arrived in Australia, as the history suggests, satisfy me that the parties have made an equal contribution.
All superannuation was accumulated during the course of the parties’ relationship in Australia, to the time of the hearing. Whilst I do not ignore the period since separation, or the context of the relationship of nine years (to separation), that period is not so significant to cause an adjustment to the Australian Pool of Assets beyond equality.
The Husband made, on the evidence, a more significant contribution to the modest remaining pool of assets in (country omitted), however, in circumstances where I cannot readily adjust (in Australian property terms), those interests and, because of the cloud that hangs over those assets because of the property being “arrested” (by the Wife’s father) and the uncertain affect generally of the (omitted), I have come to the conclusion that s.75(2)(o) of the Act is the proper place to consider the Pool Two interests – rather than as property capable of division and/or as a financial resource.
Section 75(2)
The Husband is employed as a (omitted), enjoys good health, and earns a gross wage of $2,500 per week.
The Wife is employed as an (omitted) with a (omitted) earning $1,916 per week and also enjoys good health.
The Wife is nearly six years younger than the Husband and, as a result, is likely to have a working life slightly longer than the Husband. The parties have no children of the relationship.
The very modest pool of Australian assets means neither party gains any significant benefit from the division of the pool. The Husband, who currently has the slightly greater income, bears the responsibility under my orders to pay the mortgage on the Property D unit. As he will be entitled to the net proceeds, if he fails to make payments the mortgage will increase and the net proceeds shall inevitably reduce. I take this into account.
At the hearing the Wife’s superannuation entitlements exceeded the Husband’s entitlements. No splitting order was sought or is appropriate.
Under s.75(2)(o), the Court may consider any other relevant matter. For reasons given, the pool two assets in (country omitted) are distorted by the Husband’s obligation under (country omitted) law to pay the Wife 1,000 gold coins – and if paid, of course, they represent a sizeable asset in the hands of the Wife. On the evidence, the Husband does not have the income, property or resources to pay the Wife. The Wife, who understandably seeks her rights to the (omitted), has “control” of the remaining assets in (country omitted) currently owned by the Husband.
This stalemate of sorts might suggest that eventually these parties will have to find a sensible solution. I cannot order one with so few assets (either in Australia or (country omitted)) available.
As a result, I do not see the assets of the Husband in (country omitted) as of any significant value to him – and do not see the Wife’s entitlement to her (omitted), as of any significant value to her.
For the reasons set out, I would not make any significant adjustment for the s.75(2) factors beyond small adjustments (under 5%) to the Wife.
Just and equitable orders
I accept that the Wife’s “share” might be seen as disproportionately higher because of the effect of “add back”. Equally any strict adoption of the percentage division would have required, mathematically, for the Wife to pay the Husband approximately $12,000, calculated as follows:-
50% of Pool One ($198,533 equals $99,260 made up as follows:-
Add back $60,000 Superannuation 47,395 Motor vehicle1 14,000 Bank accounts 2,834 124,229 Less car debt 13,000 111,229 Notional payment to Husband 11,969 $99,260
Relieving the Wife of a payment to the Husband of $11,969 means the Husband would receive:-
Net proceeds of unit $26,000 Bank accounts 9,258 Add back 14,000 Superannuation 38,046 $87,304
With the Wife receiving, on these calculations, $111,229, which represents 56% of the Pool, the Husband might believe the order is too generous. It is in my view fair to both, considering the add back and (country omitted) assets.
As a result, I make the order appearing at the commencement of these reasons.
I will allow, but would not encourage because of the smallness of the Pool, any applications for costs (including reserved costs) to be made in accordance with the timetable prescribed by the Rules.
Just & Equitable orders
In the circumstances of this somewhat unusual case of modest yet important proportions, and considering that the difficulties in making any sensibly enforceable order in respect of the (country omitted) property is so problematic, I have concluded that a division of the Australian pool of assets beyond those interests already held is unnecessary. Said another way, each party should keep the assets, superannuation and other interests they have previously received or still retain.
The property at Property D shall be sold and the net proceeds retained by the Husband. The Husband’s interest in the net (country omitted) property, pool 2, shall not be disturbed by any order of this Court. As I have earlier explained when discussing the (omitted), there are serious consequences of that (omitted) but a clear inability of this Court to make any orders, in my view, in Australia that could affect the operation of that (omitted) against the (country omitted) assets. I think it is a futile exercise making an order in respect of interests in (country omitted) considering the uncertain status and the effect of the (omitted).
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Baumann
Date: 26 July 2013
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