Murgatroyd & Murgatroyd (No 2)
[2022] FedCFamC1F 712
Federal Circuit and Family Court of Australia
(DIVISION 1)
Murgatroyd & Murgatroyd (No 2) [2022] FedCFamC1F 712
File number(s): MLC 12634 of 2016 Judgment of: BAUMANN J Date of judgment: 29 September 2022 Catchwords: FAMILY LAW – PROPERTY – Assessment of contributions – Issue of inheritances – Two pool approach Legislation: Family Law Act 1975 (Cth) ss 75, 79 Cases cited: Black & Kellner (1992) FLC 92-287
Hickey & Hickey (2003) FLC 93-143
Jabour & Jabour [2019] FamCAFC 78
Kennon & Kennon (1997) FLC 92-757
Murgatroyd & Murgatroyd [2019] FamCA 617
Mayhew & Fairweather [2022] FedCFamC1A 53
Stanford & Stanford [2012] HCA 52
Weir & Weir (1993) FLC 92-338
Division: Division 1 First Instance Number of paragraphs: 85 Date of last submission/s: 30 August 2022 Date of hearing: 29 & 30 August 2022 Place: Brisbane The Applicant: Litigant in person The Respondent: Litigant in person ORDERS
MLC 12634 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MURGATROYD
Applicant
AND: MS MURGATROYD
Respondent
order made by:
BAUMANN J
DATE OF ORDER:
29 SEPTEMBER 2022
THE COURT ORDERS:
1.That the Applicant shall do all things required to achieve a sale of the property registered in his name at BB Street, Suburb L (“the BB Street property”), and the proceeds of sale are to be distributed in the following manner:-
(a)Firstly, in the payment of real estate agents commissions, auctions fees, and marketing expenses incurred;
(b)Secondly, in the payment of legal expenses related solely to the conveyance pursuant to the Contract of Sale;
(c)Thirdly, any necessary adjustments for statutory changes associated with the ownership of the BB Street property;
(d)Fourthly, in discharge of the secured mortgage/s over the BB Street property (but expressly not including the Applicant’s liability for any credit cards in his name); and
(e)As to the remaining net proceeds of sale, they shall be distributed as to:
(i)75 per cent of the net proceeds to the Applicant MR MURGATROYD; and
(ii)25 per cent of the net proceeds to the Respondent MS MURGATROYD
2.That save as otherwise Ordered:
(a)The Applicant shall retain as his sole and exclusive property all other personal property, bank accounts, motor vehicles, superannuation interests, furniture, and chattels in his possession at the time of this Order to the exclusion of any claim by the Respondent;
(b)The Respondent shall retain as her sole and exclusive property all other personal property, bank accounts, motor vehicles, superannuation interests, furniture, and chattels in her possession at the time of this Order and specifically her interest (whether vested or not yet vested) as a beneficiary in the Estate of her late mother and the Country F investments referred to at paragraph 57 of the Reasons for Judgment to the exclusion of any claim by the Applicant.
3.That the Applicant shall be responsible for all loans, credit card liabilities, and other debts in his name personally and shall indemnify the Respondent in respect of any liability for those obligations.
4.That the Respondent shall be responsible for all loans, credit card liabilities, and other debts in her name personally and shall indemnify the Applicant in respect of any liability for those obligations.
5.That the parties shall have liberty to apply to the Honourable Justice Baumann for orders limited to the enforcement or interpretation of these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Murgatroyd & Murgatroyd has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
In a court that is used to tragic cases, this case presents as one that deserves that description. Although the reasons which I deliver essentially only relate to the contested property proceedings, the background to the dispute set out in these Reasons has very much shaped the way the Applicant husband Mr Murgatroyd (“the husband”) and the Respondent wife Ms Murgatroyd (“the wife”) presented their cases and articulated their positions to the Court. For the reasons which follow, the orders which appear at the commencement of these Reasons do, in my view, provide justice and equity to both parties. To be perfectly clear, despite being invited by the unrepresented parties to include an element of punishment or damages because of parental failures, or reward for undertaking roles as parents without the assistance of the other parent, such elements do not form part of the discretionary process that the Court has undertaken.
Competing proposals
It needs to be accepted that, as both parties were unrepresented, their capacity to prepare their material in a form that one might have expected with legal representation, was reduced. The husband relied upon – as a result of trial directions – a trial affidavit filed 21 July 2022; a Financial Statement filed 10 May 2022; and a Reply filed on 26 August 2022 with the Court’s leave. Although the husband’s case outline sought to rely upon a range of other affidavits in the proceedings filed for interlocutory, parenting, enforcement and discovery applications, he was not permitted to do so. The wife filed her material late. The husband would say that was hardly unusual. Be that as it may, the wife, unlike the husband who appeared personally, appeared by telephone link from Country F where she now resides, and relied upon a trial affidavit filed 23 August 2022 and a Financial Statement in its final form that she had signed on 25 August 2022 and filed on 29 August 2022.
Additionally, and as a result of an earlier direction made during the case management of this matter, the wife relied upon an affidavit by her brother, Dr DD filed 1 June 2022. As will become apparent, Dr DD is the administrator/executor under the Will of the wife’s late mother. The Estate of the wife’s mother was a matter of significant controversy in this case. In circumstances where the case outlines were not specific in many ways, both parties indicated at the commencement of the case their positions, which were:
(a)the husband contends that it would be just and equitable if he retained the assets in Australia without any claim by the wife, and he would relinquish any claim he says he has in the estate interests that the wife will receive; and
(b)the wife’s position, as articulated, was that her estate benefits should be ignored and/or “excluded” and that she should receive 70 per cent of the Australian or other assets.
It is immediately apparent that the conflict between the parties was polarised. What can be said – and it was a new development – is at the commencement of the trial, the husband informed the Court that the real estate in Australia at BB Street, Suburb L has been recently placed on the market for sale. It is hoped that a suitable offer to sell the property will be received at an auction to be held within the next month or so. The husband expressed the reasons for the sale were because he was finding it difficult to make the payments in respect of mortgage on the home; that he anticipated he may have to pay the wife some funds; and that he accepted – sensibly, in my view – that to move on, the home would need to be sold.
Principles
The principles in a property matter are well settled by authority. Shortly stated, but more concisely and elaborately described in the Full Court decision in Hickey & Hickey (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) of the Family Law Act 1975 (Cth) (“the Act”);
(c)to consider the factors as are relevant contained in s 75(2) of the Act; and
(d)finally, consider the ultimate analysis to determine whether the order the Court proposes to make is just and equitable to both parties.
I am satisfied that this previously married couple, who have been separated now for many years, seek orders which make it clear that any unstated assumptions, arrangements or agreements that were in existence at times and during their marriage have come to an end. They both seek property adjustment orders as indicated in quite different ways. I am satisfied that it is just and equitable, pursuant to s 79(2) of the Act to make a property adjustment order (Stanford & Stanford [2012] HCA 52).
Chronology
In respect of the chronology which follows, statements of fact should be regarded as findings of fact.
The husband was born in 1960 and is now 62 years of age. The wife was born in 1972 and is currently 49 years of age. The husband is a Professional and in or about 1997, I am satisfied he purchased the property at BB Street, Suburb L (“the BB Street property”). At the time he purchased that property, he was in a relationship with another person. From that former relationship, the parties conceived a daughter RR who tragically died in 2014 as a young woman. Prior to meeting the wife in mid-1997, the husband’s earlier relationship had broken down.
I am satisfied that the husband made an arrangement with his former partner to acquire her interest in the BB Street property. There are few details of the amount paid or the valuation of the property at the time, although I am satisfied there would have been a modest equity. As best as he could recall, the husband said that the property (which includes an old Queenslander home built in the late 1880s, and therefore a home that required ongoing and significant maintenance) was purchased for approximately $165,000. This evidence is fairly consistent with the opinion expressed by QQ Valuers in the valuation before the Court (five years later) procured by the husband, that at the time of marriage in mid-2002, the property had a retrospective valuation of approximately $190,000. There is no evidence as to the mortgage on the property at that time, which would, I infer from the evidence, have increased as the husband had been required to pay out his former partner. In the circumstances, although he brought the BB Street property into the relationship, the equity in the property was, I find, modest.
At the time of the marriage of the parties in Region J, Country F, in mid-2002, the husband was 42 years of age. He had an interest in the BB Street property, I accept, some savings and some very modest superannuation. He most probably also owned a car and had some furnishings, including what I am told is an inherited grandfather clock. The wife, who was 29 years of age at the time of marriage, had, on the evidence, few assets of significance save that, I am satisfied, an EE Company life policy, which she still owns, had been purchased and contributed to by her parents. It seems likely that when the wife decided to move to Australia to pursue the relationship with her husband, she brought with her few assets.
The parties were blessed with the birth of four children – W born in 2005 (now aged 17 years); X born in 2007 (now aged nearly 15 years); Y born in 2009 (now aged 13 years); and Z born in 2012 (now aged 10 years). All four children were born in Australia, but because of their Country F linkages, as with the mother, they would spend time in Country F on a regular basis about every 18 months to maintain family ties.
Although the evidence of the parties as to the relationship is somewhat confusing, I am satisfied that at least in mid-2008 the wife felt she had grounds to obtain a temporary protection order and made an application for one. It is not clear whether that ever resulted in a permanent order, but nonetheless, after that application was made, the parties maintained living together and had two further children. I should mention at this part of the chronology that although both parties say they had been the subject of verbal and physical abuse from the other party, there is nothing like sufficient evidence and detail in the material of the parties to enable the principles of Kennon & Kennon (1997) FLC 92-757 to be applied in this case.
The wife was granted permanent residency (noting, of course, that the husband was an Australian citizen) in mid-2008.
Whilst there is a dispute about what renovations were done to the BB Street property and when they started, I am satisfied on all the evidence that renovations were undertaken by the husband from perhaps 2009 to around 2010. Being a professional, the husband had various skills, and, of course, by late 2009 the wife was the primary carer within the household and homemaker of a group of three siblings at that stage, who were no older than five years of age. There is no evidence about how and to what extent any improvements on the BB Street property improved its value. Sadly, it appears that the husband was a victim of the global financial crisis. He was in industry as a professional at the time of the global financial crisis. He did not work between mid-2009 and 2013. He relied, as the family did, mostly on government benefits and other ways of earning modest sums. It would have been a very difficult time for the family, and, no doubt, stresses began to develop further between the parties.
As will become relevant in these Reasons, I record that on or about early 2013 the wife’s father died in Country F. At the time of his death, he was still married to the wife’s mother. Some time in 2013, it appears that the husband was able to secure work as a professional for FF Pty Ltd. That employment continued until approximately late 2020. The husband says, and I accept, that by the time his employment was terminated, he was not able to perform in the manner that he had hoped because of the stressors arising from these family law and particular parenting proceedings.
The fact that the relationship was in trouble is reflected by the next event. In or about mid-2015, with the consent of the husband, the wife left Australia with the then four children for what was meant to be a six-month holiday. The wife says in her material that she hoped that having a break for that period would enable her and the husband’s relationship to be regenerated. It was intended that the husband visit them in Country F. I think he did. However, by late 2015 the wife had decided that she would not return to Australia with the children. This wrongful retention, as the Country F courts found to be the case, began a series of events which has now shaped the lives of both these parties and, no doubt, their children, with unfortunate consequences, in my view.
As he was perfectly entitled to do, in early 2016 the husband engaged, through the central authority, the courts of Country F with a view to having the mother return the children to Australia, no doubt, on the basis that Australia was the children’s habitual residence before their removal. Through a process of applications and unsuccessful appeals, ultimately the wife did comply with an order of the Country F courts made under the Hague Convention, such that she returned to Australia with the children in or early 2017. Prior to doing so, Bennett J of the Family Court of Australia (as it then was), made orders, some of which are relevant to this chronology and are set out hereafter.
1.That compliance with the Family Law Rules 2004 as amended be dispensed with so that this matter may proceed as an oral application by the Mother for safe harbour orders in anticipation of the return to Australia of the children [W, born in 2005], [X, born in 2007], [Y, born in 2009] and [Z, born in 2012] pursuant to the “Hague Convention on the Civil Aspects of International Child Abduction 1980” and each party be excused from filing an Application initiating proceedings, a Response thereto and any affidavit of evidence save as is provided for in this Order.
2.These proceedings be listed before a Judge at 10.00 am on the 10th of January 2017 (“the adjourned date”)
3.Subject to compliance with paragraph 12 of this Order and unless the parties are notified of the availability of an earlier assessment the Regional Manager of Child Dispute Services assign a Family Consultant to prepare a Parent and Children’s Issues Assessment pursuant to s11F of the Family Law Act 1975 all parties must attend:
a)an Intake Event for the Child Responsive Program on 20 February 2017 at 9.00 am in the Family Court of Australia in Brisbane.
b)all future appointments fixed by the Family Consultant and are requested to ensure that the child(ren) attend all meetings as instructed by the Family Consultant.
4.Following the conclusion of the meeting/s with the Family Consultant the Family Consultant provide a Children and Parents Issues Assessment to the parties, the Independent Children’s Lawyer and the Court, and the case be listed before a Registrar to consider any recommendations of the Family Consultant and to make procedural orders for the future conduct of the case.
5.For the purpose of preparing the abovementioned issues assessment, the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer (if any).
6.To the extent that any party requires permission to cause subpoenas to produce documents to be issued in anticipation of the adjourned date, I hereby grant permission for all or any party to cause such subpoenas to issue providing that such subpoenas are returnable prior to the adjourned date and the inspection of documents which are produced and released for inspection be conducted prior to the adjourned date.
7.Until further order, [Mr Murgatroyd] and [Ms Murgatroyd] and his/her/their servants and/or agents are hereby restrained (by injunction, and irrespective or authenticated consent as contemplated as Part V11 of the Family Law Act 1975) from removing or attempting to remove or causing or permitting the removal of the children, (“ the said children”):
[W], born [in] 2005 (male)
[X], born [in] 2007 (male)
[Y], born [in] 2009 (male)
[Z], born [in] 2012 (male)
from the Commonwealth of Australia.
8.It is requested that the Australian Federal Police give effect to this order by placing the name(s) of the said child/ren on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child/ren’s name/s on the Watch List until (date/further order or the court orders its removal).
9.The Marshal and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.
10.The Mother is to do all acts and things necessary to deposit all of the passports of the said Children with the Brisbane registry of the Family Court of Australia by 9:45am on 10 January 2017 and all such passports be held safely by the Registry Manager pending further order of the court.
11.The direct Judicial communications in this matter be marked as Exhibit C1 and remain on the Court file and as soon as practicable after 16 January 2017 the parties be provided with Exhibit C1 from which the personal contact details of the Judicial Officers have been redacted.
IT IS FURTHER ORDERED THAT
12.In the event that by the 4th of January 2017, the Father files and serves an Application Initiating proceedings (parenting orders sought) that Application be returnable on the adjourned date.
13.The Children be represented in these proceedings, and it is requested that Legal Aid Queensland arrange such representation as expeditiously as possible so that the Independent Children’s Lawyer is available to attend court on the adjourned date.
14.The Registry Manager, by his or her nominee, are requested to forward a copy of these orders and court documents promptly to the attention of Legal Aid Queensland.
15.The Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Family Court of Australia.
16.IT IS REQUESTED that the Family Consultant who prepares the s11F assessment consider facilitating a meeting between the children and the Independent Children's Lawyer by inviting the Independent Children's Lawyer to meet the children in his or her company during the assessment process. For the avoidance of doubt the Family Consultant and/or the Independent Children's Lawyer is at liberty to contact the psychologist [Mr GG] in [Country F] or such other social scientist as the children consulted prior to leaving [Country F] (“the psychologist”) and to discuss the psychologist's prognosis for each or any of the children.
17.The mother and father each do, and do hereby, AUTHORISE AND REQUEST the psychologist to discuss the psychologist's views about and prognosis for the children (or any of them) with the Family Consultant who prepares the s11F assessment and the Independent Children's Lawyer. The wife send or cause to be sent to the psychologist a photocopy of this Order.
18.Subject to any Notice of Address for Service filed by either parent to the contrary, after 5 January 2017 the address for service of each parent be noted in the records of the court as follows:-
a) as to the mother, Women’s Legal Services, [HH Street, Suburb L] Qld
b) as to the father, [JJ Street, Suburb H] QLD , email, ...
IT IS FURTHER ORDERED BY CONSENT AND UNTIL FURTHER ORDER
Until the Court rises on the 10th of January 2017, the Children live with the Mother.
19.Pending the adjourned date the children spend time with the Father on one occasion in the presence of [Ms KK] or, in the event of [Ms KK] not being available, [Ms LL] for such period as is agreed between the Mother and the Father and [Ms KK] or [Ms LL] as the case may be and the date and time that the children spend with the Father be arranged by [Ms KK] with the parents, or in the event of her unavailability, [Ms LL].
20.For the avoidance of doubt, the dog accompanies the children for the time they spend with the Father is a matter of the sole discretion [Ms KK], or in the event of her unavailability, [Ms LL].
21.Upon the return of the children and the mother to Australia, the mother have sole use and occupation of the home [BB Street, Suburb L] (“the home”) until 28 February 2017.
22.During the Mother’s sole use and occupation of the home:-
a) the father remove or cause to be removed his personal possessions from the home;
b) the father have exclusive use of the undercroft for the purpose of storing such personal possessions as he wants to store in the undercroft, under lock and key;
c) until the end of the court day on the adjourned date the Mother be restrained from causing permitting or suffering anyone other than the Father to enter the attic to the home provided that nothing in this Order entitles the Father to enter the home;
d) until the end of the court day on the adjourned date the Mother permit the dog […] to remain in the home and the Mother be responsible for the care of the dog NOTING THAT ownership of [the dog] is a matter in issue between the parents.
With pending proceedings having been commenced by the husband at least for parenting Orders on or about 31 March 2017, Berman J made orders, and the ones that are relevant to the property proceedings are as follows.
(1)That UNTIL FURTHER ORDER the wife have the sole use and occupation of the former matrimonial home [BB Street, Suburb L] upon the following conditions:-
(a)That the wife pay the sum of TWO HUNDRED AND FIFTY DOLLARS ($250) per week into an account nominated by the husband;
(b)That every three (3) months the wife advise the husband of applications for housing, applications for rental accommodation or other steps taken by her to obtain accommodation;
(c)That the property is maintained in good condition;
(d)That other than the wife and the children, no other person is permitted to reside in the property without the consent of the husband for a period longer than seven (7) days;
(e)That upon the husband giving seven (7) days’ notice to the wife and with a frequency not less than six (6) months, the husband or his agent be permitted to enter upon the home in order to inspect same;
(f)That the wife be responsible for the payment of all utilities and will do all things necessary and sign all such documents to ensure that utilities and services connected to the property are forthwith transferred into her name and that she will provide proof of same to the husband.
(2)That subject to these orders the husband be restrained from attending the [Suburb L] property for any reason without the consent of the wife or order of this Court.
(3)That by way of interim spousal maintenance, the husband shall continue to meet the mortgage, home insurance and rates in respect of the [Suburb L] property.
The parties were divorced by Order of the Court in early 2017. The mother’s applications for parenting proceedings and/or property proceedings remained with the Family Court of Australia (as it then was) in the docket of Forrest J.
For reasons which the husband continues to complain about, on or about 3 May 2019, Forrest J decided that the parenting and financial proceedings ought by bifurcated. That is, he decided to hear the parenting proceedings (which included the wife seeking an order to relocate with the four children to Country F) and to leave the management of the property proceedings thereafter. I am satisfied that his decision in that regard significantly arose from the fact that there were unresolved disputes on facts as to the status of any inheritance the wife had available to her from the Estate of her late father and/or whether, in fact, she owned property in Country F in her own right. It became apparent after the retirement of Forrest J and when I was seeking to case manage this matter (in every circumstance and on every occasion where the parties were unrepresented and the wife was appearing by phone from Country F, often in the early hours of the morning in that country) the issue of the inheritance in Country F was controversial. The issue became the subject of a single expert report of a Mr AA. I refer later in these Reasons to his opinions in that regard.
Having bifurcated the proceedings, a trial over five days in respect of parenting proceedings was undertaken by Forrest J, commencing 18 June 2019. On 4 September 2019, Reasons were delivered (see Murgatroyd & Murgatroyd [2019] FamCA 617). The effect of those Orders, as the Reasons make clear, was that the mother was granted sole parental responsibility and was permitted to relocate the primary residence of the children to Country F at any time after “Sunday, 8 September 2019” (namely, and surprisingly, in my view, only four days after Judgment was delivered). The father did not lodge an appeal against those Orders.
His Honour clearly was concerned about the relationship that could be maintained between the children and the father, and his Honour’s Orders make clear that in an effort to protect that relationship, he ordered that:
(a)the mother attend to the formal registration of the Orders in a competent court in Country F. The father complains that whilst the Orders were partly registered, they were not fully registered;
(b)if the father relocated to Region J, Country F, the children would spend time with him each alternate weekend from after school Friday until before school Monday and half of the holidays for up to seven consecutive days. The father has never been able to relocate to Country F for reasons which I mention briefly shortly;
(c)if the father did not relocate to Country F, then, under Order 10:
the mother shall send the children, at her expense, to Australia to spend time with the father for a minimum period of at least three (3) weeks (excluding travel time) during every [Region J] summer school holiday period.
(d)the father was given liberty (and presumably registration of the Orders in Country F would have protected this right of the children) to travel to Country F at any time to spend time with the children upon the giving of 28 days’ written notice to the mother whereby he could spend time with them as prescribed by the Order; and
(e)the children were at liberty to speak with the father or the mother by Skype or WhatsApp on a regular basis, and the parents were required to exchange information and the like.
What is clear from all the evidence is that since the mother left Australia (never to return) with the children in late 2019 (19 days after Judgment), the mother and the children have not returned, and as I will explain, I am not satisfied there is any prospect that they will return during their infancy.
The father’s relationship with the children has been significantly and adversely affected, although this is not a parenting case and I make no further comments about it other than to say that the Orders of Forrest J did not provide for the children’s time with the father to be supervised and his Reasons seem to reflect that the children did in differing degrees have a relationship with the father which was beneficial to them. The father’s loss of any relationship with the children has very clearly shaped his thinking and his mental health.
Although the wife will receive the benefit of inheritance, I should record that on or about early 2017 the husband received from the Estate of his late mother, Ms MM (who died in 2015), the equivalent of approximately AUD$40,000. Although at one stage the wife felt that the interest in the Estate of the husband’s mother was greater, by this trial, with proper discovery in evidence, the wife accepted it was as little as AUD$40,000.
I do not propose to deal with all the events in this very difficult to manage property dispute between the parties, save to say that I was ultimately able to satisfy the parties and to obtain their consent to the appointment of Mr AA as a single expert. Mr AA, who is an expert in Country F law, was able to provide a report in relation to the effect of various instruments and actions in Country F, both in a property law sense and in an inheritance sense. The reports of Mr AA dated 9 February 2022 and 21 March 2022 were marked Exhibits 3 and 4.
At the time of the trial the husband indicated he wished to ask some further questions of Mr AA (see Exhibit 5) which he was permitted to do, and the answers from Mr AA have been marked in these proceedings as Exhibit 7. I deal with the evidence of Mr AA later in these Reasons.
Clearly the inheritance issue has been complicated but in many ways, it became less complicated as a result of the death of Ms NN, the wife’s mother, in 2021.
I should mention at this stage that the husband concedes that as a result of his financial situation after his 60th birthday in 2020, he accessed his superannuation by withdrawing approximately $70,000. The wife quite properly drew this matter to the Court’s attention and the Court obtained evidence from the husband that the funds that he withdrew were used by him for living expenses; payments on the mortgage on the BB Street property, and the payment of Court expert fees (Mr AA in the region of approximately $11,000 and the fees of the independent valuers, QQ Valuers). As will be identified, approximately $24,500 remained in the husband’s bank account from those funds and had been included in the pool of assets.
As both parties have been unrepresented, there is no suggestion they have used any of their post-separation income (noting that separation occurred at least by December 2015 if not effectively in July 2015) for legal expenses.
A trial took place commencing 29 August 2022 over two days. I pay credit to the parties for the way they treated each other during the Court process which was not easy. Much emotion was involved.
At the end of the trial, the wife had little to say other than to press for the orders that she was seeking which she felt were just and equitable.
The husband, by comparison, after the Court had directed a number of questions to him to see whether any concessions could be made (few were), invited the Court to hear a prepared statement about why he said the orders he seeks are just and equitable. The husband was given an uninterrupted opportunity to place on the record his views. The statement of his views as expressed were transcribed and appear as Appendix One to these Reasons. The emotion that arises from that statement is plain and palpable from the words he used. By the end of the statement he was in tears. He indicated, and although this is not relevant to the property proceedings per se, that on or about the night of 29 August 2022 (the middle night of the trial) he received information from the Judge handling the new parenting application of the wife in Country F that, as I understand the husband’s views expressed to me, reflected that the Judge in Country F had spoken to the children and that now they have expressed little interest (other than for perhaps Z) in having an ongoing relationship with their father.
Although it is not for this Court to deal with the Country F parenting proceedings, the mother did not reject the contention of the father of the children that the intention of the proceedings in Country F were to make it clear that in Country F at least the Orders that have been registered (such as they were arising from the Judgment of Forrest J) should be discharged or varied so as not to compel the mother to bring the children to Australian and maybe even facilitate time in Country F if the father was able to go there. I also note for context that in the years 2020 and 2021, the mother was unable to facilitate the children travelling to Australia because of Covid-19 travel restrictions.
Before I begin the required four step analysis, I make some findings about two discrete issues next.
SINGLE EXPERT
Mr AA was appointed as a single expert by Order of this Court, to provide an opinion as to aspects of Country F law and in particular documents relating to the wife’s inheritance. This has been a significant focus of the husband’s case, and before the clarifying evidence of Mr AA, uncertainty existed as to the significance of the original certificate of inheritance, which, as a consequence, caused the wife to be recorded as a part legal owner of her parents’ property in Country F.
The evidence of the changes that took place after the death of the wife’s father and before the death of the wife’s mother, was that a “joint Will” was “discovered” in 2018, the effect of which was that the original certificate of inheritance was corrected, it seems, in accordance with Country F law and through due legal process.
That the husband was, and remains, entirely suspicious about these facts is obvious – and considering the public records he was able to access in Country F, quite understandable. His recent question to Mr AA and the expert’s answer is relevant, namely:
Question 3. Is it correct that up until the serendipitous and fortuitous discovery of the joint “will” – in late 2018, that the first certificate of inheritance was legally deemed to be correct?
Answer: Yes, that is the case.
The husband advances a case, as I understand it, that some conduct of the wife or her family (a form of collusion) took place such that the joint “Will” discovered in 2018 is not a valid instrument. The difficulty for the husband is that the Country F courts have found otherwise, which caused the new certificate of inheritance to issue.
However, as hard as it may be for the husband to accept, with the death of the wife’s mother, the wife’s interest in the Estates of her father and mother has essentially crystalised to the position set out in the evidence of Dr DD, which I accept.
The dispute about the wife’s rights were unclear at the time Forrest J bifurcated the matter, and I accept the evidence of Mr AA that “from a legal point of view the notion of the Respondent that she had inherited prior to late 2017 was erroneous”. That is, even though the wife had argued her interest in the Estate was not relevant nor required consideration in these property proceedings, the original certificate of inheritance and its effect from public records (including title searches) meant it was, and always was, on that evidence.
However, once corrected because of the “discovery” of the joint Will in late 2018, the wife’s previous recorded interest was in a real sense extinguished – only to be enlivened again (and in the same way), by the death of her mother.
At the time of the final hearing, as my discussion of the pool of interests reveal, the wife’s interest to vest ultimately in her is taken into account.
WIFE’S LACK OF DISCOVERY
The history of case management of this matter reveals, and I find, that the wife did not always comply with Orders for discovery and production in a timely way – or at all. Clearly the errors arising from the incorrect certificate of inheritance fuelled the husband’s angst and suspicions. As dealt with already, through the evidence of Mr AA, the situation has been clarified.
Another major issue (but not the only one) in the area of discovery was the mother’s reluctance, despite Orders, to provide a complete valuation report of the Country F real estate when it was, and I find, in the wife’s possession, power and control. This greatly frustrated the husband – but as these Reasons demonstrate, by the time of the final hearing clarification of value was available. The relevant date of assessing the value of interests is usually, and in this case applicable, the date of the hearing.
I accept that there was much more time spent before me (and on more occasions) than would occur if:
(a)the parties were legally represented; and
(b)some of the issues about the wife’s actual inheritance had been corrected earlier; and
(c)the unrepresented wife had appeared other than she did on every occasion – by telephone from Country F; and
(d)many of the documents produced by the wife in the Country F language had been properly translated into English. I can only imagine, but not quantify, how many hours the husband spent trying to assist the Court with a translation of a Country F document. He was accessing apps on the internet or by using Google, to do so.
Of course the behaviour of the wife, of which I am critical as set out, might resonate as a factor for consideration under s 117(2A) when a party seeks an order for costs, however as these parties have been unrepresented in these property proceedings, the costs jurisdiction is not enlivened in any meaningful way.
Mr Murgatroyd has referred the Court to the long and accepted line of authority including Weir & Weir (1993) FLC 92-338 and Black & Kellner (1992) FLC 92-287.
However, at the end of the hearing before me, I was not left with a view that, although the wife could certainly have been more compliant with directions for discovery and her general duty to do so, I have not been able to identify on the evidence available the pool of assets and interests. It is not consistent with authority to “punish” in some monetary way under s 75(2) the failure at times of the wife to make discovery. Treating the wife’s evidence with more robustness does not, in this case, lead to a finding that there are undisclosed assets of any significance (see the discussion by the Full Court in Mayhew & Fairweather [2022] FedCFamC1A 53 at [13]–[14]).
I am persuaded, for the reasons which follow, and notwithstanding the difficulties this case has presented in its case management, that my analysis and findings about what orders achieve justice and equity now, have not been distorted or made unreliable by the wife’s failure earlier to make full and timely disclosure.
Pool of Interests
Doing the best I can on the evidence, I find that it is appropriate to identify two separate pools of interests. In my view the inheritance of the wife which has been now quantified to some degree to approximately $646,000 should be in a separate pool. The husband acknowledged that he had made no contribution to that inheritance. It has vested, effectively, as Mr AA’s advice has indicated, upon the death of the wife’s mother in 2021, some nearly six years since separation. It should not be excluded from consideration, but placing the interests of the wife in a separate pool that arises from inheritance is in my view a transparent way of dealing with her entitlements.
In assessing the inheritance, I take into account the evidence of Dr DD in his affidavit previously mentioned and his more recent evidence that attempts to sell the property at the value, which the valuation produced recently by the wife suggested, have shown that in the current market in Country F such a price is not obtainable. It is anticipated by Dr DD, who is facilitating and managing the affairs of the estate, that the sale price of the property that includes the middle block and the structure (a large home, apparently) would be more in the region of €947,000.
I accept, however, that the amount identified for the pool should include two adjoining parcels of land which were not the subject of the real estate’s agent’s valuation because those parcels of land are not being sold in the same way. Certainly Dr DD indicated that it is the hope that those parcels of land (smaller than the parcel on which the house is constructed) might be attractive to adjoining owners. There is little evidence about what value could be obtained for those sales to adjoining owners. The husband says from his “experience” vacant land attracts the same increase that the other property in the middle would have attracted, namely, 150 per cent from the earlier valuation. Be that as it may, it is not the requirement of a Court in the circumstances to make an exact calculation of the wife’s one-third interest in the estate. The figure included in the pool of assets is the best I can do on the evidence and in circumstances where there will be no orders that the wife’s interest in the estate be shared specifically with the husband.
I accept that the value could go up and down depending on the property sales, value of investments, and expenses associated with the administration of the estate and the holding of assets until sale.
The pool one interests reflect on the evidence mostly coming from the parties’ Financial Statements (the husband’s filed 10 May 2022 and the wife’s filed 29 August 2022) and seek to distinguish between assets personally held and any interest in the estate. The Court has sought to be clear in not blurring the two different property interests. I ignore the value of the furniture, motor vehicles and the like because there is no actual valuations before the Court, and because separation occurred so many years ago there appears little utility assuming any of the assets that may have been in existence then remain and have any value.
Finally, before setting out the two pools I acknowledge that in a case like this it is appropriate in my view to have one pool that includes both superannuation interests and properties otherwise available.
I make the following findings as to the pool:
POOL ONE Assets Ownership Property Value Husband Notional interest depending on sale of the property at BB Street, Suburb L net of debt $504,000 Husband Bank account (representing the residual approximately of the $70,000 withdrawn from the superannuation account) $24,560 Husband Remaining superannuation $35,890 Wife Superannuation/pension entitlement $26,092 Wife Interest in EE Insurance Limited insurance policy $25,286 Wife OO Fund payable 11 October 2023 $55,043 $670,871 POOL TWO Wife Potential inheritance $646,000 Contributions
I have in the chronology identified what I assess to be the initial contributions of the parties. I am satisfied that the husband’s initial contributions were superior to those of the wife, but I take into account that that was many years ago and that there have been many other contributions during that period which need to be taken into account in the way that authorities such as Jabour & Jabour [2019] FamCAFC 78 requires.
Put simply, during the course of the relationship from marriage until separation, which for the sake of this description I will take as December 2015, the husband was the primary breadwinner and the wife was the primary homemaker and parent. In so saying, I do not suggest that the husband did not make a contribution of a non-financial nature to the care of the children. He clearly did. He was devoted to his children, but as the full-time worker for much of the relationship he had to rely and could rely on the wife’s attending to the tasks of a young family day in day out.
Although the wife did make some modest financial contribution prior to the birth of W in 2005, in this respect I also acknowledge that the husband had been supporting the wife including assisting her with some of her education at around about the time of marriage. Her direct financial contributions were significantly less than those of the husband, but as I say, her contributions as a homemaker and parent were superior.
The post-separation period has been marked by the fact that the mother by her actions has prevented the father from undertaking a role as a parent. Lest that be seen as too harsh, I acknowledge that after the Orders were made by Forrest J the worldwide pandemic took hold. His Honour would not have understood at the time he made his Orders that that was likely to occur. Accordingly, even if (and I doubt this was the mother’s intention) the wife had wished to come to Australia during the 2020 and 2021 calendar years, the restrictions on travel to and out of Australia at the time would have prevented that occurring. I think there are other reasons why the wife did not come here, but certainly I cannot ignore that there were restrictions.
It was not suggested for a moment, nor could it be in my view, that it would have been proper for the wife with the benefit of the Order of the Family Court of Australia that she live in Country F, to come to Australia with the four children and quarantine on the basis that she would be remaining as a permanent resident. That was never her intention, it would seem, at least since July/December 2015.
The reality is, however, that post separation the husband had the benefit of residing in the BB Street property; making payments from whatever savings or income he did have until he lost his employment in 2020, and thereafter through the use of the funds drawn down on his superannuation; and had made modest payments of child support. The wife says he is now in arrears under Australian child support principles. The husband says, and I accept, that any effort he could make as a contribution as a parent to the four children has, by the circumstances, been unable to be achieved. The fact is, however, that the wife has had to bear the full emotional and generally financial obligations for the four children since she returned to Country F under the Orders of Forrest J in 2019.
I take all these varying contributions into account. I find on the evidence that the contribution-based entitlements of the parties to the pool one assets should be regarded as equal. As already indicated, the husband does not assert, nor could he in my view, that he made any contribution to the pool two interests, namely the inheritance of the wife.
Section 75(2) Factors
The husband is some 12 to 13 years older than the wife. In terms of earning capacity and income, the ages of the parties means that the wife can look forward to a longer working life than can the husband, even if they both were healthy.
I accept the wife’s evidence that her income is modest. She works on a seasonal basis. She was the subject of cross-examination by the husband on her financial details. He believed the wife’s income is more significant than that which she sets out in her Financial Statement. I am not able, on the evidence, to accept such a proposition, however, I am satisfied that for some years during the lifetime of her mother, the wife had in some way continued financial benefit and support from her mother. She may have had it from her wider family.
Nonetheless, even if she can, and the husband asserts she could, work for another 18 years, her income would be modest at this stage. Her responsibilities as the primary and in fact exclusive carer of the four children in Country F also impedes her capacity to work. As the children get older, become independent and leave school, her capacity to earn income will improve. Although, of course, the wife says, and there is little evidence about this, that she has been having counselling because of the traumatic events of the breakdown of the marriage and the ongoing litigation that has consumed the parties now for over seven years in one form or another, the evidence does not enable me to be satisfied that the wife’s earning capacity will be affected by any health issues.
The husband says, and I accept, that the events of the last seven years have caused him significant anxiety and to become depressed. He has really not worked since 2020. Under questioning from myself exploring his job opportunities, he acknowledged he has not sought employment. He says he is being assessed for disability benefits by Australian authorities.
It would have been better, in a perfect case, for more medical evidence to have been produced by him. I take on board his age (62) and his presentation at times in this Court. He has reflected a capacity to become articulate and structured in his arguments about this property matter (to the point of obsession). Whilst those skills might be adaptable to lines of work other than his profession, I cannot be satisfied that he has any significant commercial employability at the current time.
I do not ignore that it is possible and that once these proceedings are finished and the house is sold, he may be able to find some employment. However, on balance, I think the wife’s future income and earning capacity is superior to that of the husband.
I take into account, but not in a way to be “social engineering”, the benefits the wife will receive from the estate; it puts her, of course, in a much more secure financial position than the husband, but that arises from the fact that she had, in effect, more wealthy parents than the husband does. Nonetheless, authorities make clear that in comparing the parties and their future needs, the benefit of her inheritance is a factor to be taken into account and I do so.
Another factor which in my view in this case is appropriate to consider within the rubric of s 75(2)(o) is the fact that I am satisfied that the only way in which the father will be able (during the children’s infancy) to see the children will be to travel to Country F. I have no confidence at all even when the wife has access to the inheritance funds that she will facilitate the children coming to Australia. It appears now that she has a situation where the children, for whatever reasons, seem to be expressing a reluctance to come to Australia. In this regard it should be noted that I had ordered the wife to appear personally before the Court at the trial. The trial was set so as to enable the Orders of Forrest J in relation to the time the children would spend in Australia during the Region J summer holiday, to be accommodated.
Although the wife in final submissions denied that she had “undertaken” to the Court that she would be in Australia, whilst it may not have been a formal “undertaking”, the wife was aware of the Order I made that she appear in Australia at the trial personally for good reason and did not challenge the Order I made that she do so. On all the evidence I am now satisfied that the wife had no intention of returning to Australia.
I accept that part of her concern was most likely the fact that the father was giving every indication that if the wife was in Australia, he would use whatever legal endeavour was available to him, to retain her in this country on the basis of either a contravention of the Australian Orders or contempt of Court.
The wife is an intelligent person. She was able to conduct the trial demonstrating excellent English skills and the material she provided reflected the same quality. I think it likely, although there is no evidence of this, that she has had legal advice to some degree. In my view, wherever that advice came from if it included an inquiry as to the prospects of her being retained in Australia if she came within the territorially jurisdiction of this Court, would have caused her some concern.
I do not leave this topic without noting the husband’s advice to me. When I put it to him that it might be open to the Court to take into account the costs of travel to Country F, he made it clear that he fears going to Country F. From the bar table he asserted, for example, that many years ago when in Country F he had been in some way physically assaulted by a person associated with the wife’s Country F lawyer. Furthermore, he is not confident that even if he was in Country F the children would see him. Although the enforceability of the Australian Orders in Country F and the variation or otherwise of those Orders or new orders in Country F are matters outside my control, in the exercise of discretion I believe it is appropriate to take into account that the husband will, once the home is sold, have the funds (which he has not had to date) to travel to Country F to see the children and that I could not – although in his current emotional state there is a reluctance to do so - ignore the very real prospect that he would go to Country F at some time in the future. I say this because in my view, in this matter, I have never doubted the extent of the love the father has for his children and the deep sense of loss (for which he blames the Court to a large degree) that he feels as a result of the relationship with his children no longer existing.
When I take all these factors into account, it is my view that this requires the adjustment to the pool one contribution assessment in favour of the husband of 15 per cent. Said another way, a differential in money terms payable by the wife to the husband from her share of the property pool – the pool one interests – of approximately $100,000.
Before finishing this topic and although I was not required to consider child support issues, it seems more likely than not that the wife will pursue the father for child support under Country F law. The extent to which that may be enforceable against the Australian assets of the father (noting already that his Centrelink benefits are reduced by Australian child support obligations) is uncertain.
I felt that the wife was a little coy in her evidence when cross-examined by the husband as to her intentions in relation to child support. Of course, if the laws of Country F, where the mother and the children reside, allow her to make an application for child support (which the husband says could be as much as AUD$2,000 a month), then she is perfectly entitled to do so.
There are no orders I could or should make in relation to those issues as no jurisdiction has been enlivened. As a result, any additional costs to the wife in the future may be, and I put it no higher than that, offset by orders made that are enforceable in Australia from the Country F jurisdiction.
Conclusion
As a result of the analysis which has preceded, I would regard it as just and equitable if orders that provided the husband to receive approximately 65 per cent of the pool one assets; the wife to have 35 per cent of the pool one assets, and the wife to retain all her inheritance entitlements in Country F were made.
The orders which I pronounce and which are set out at the commencement of these Reasons clearly need to be shaped by the fact that the Court will be required to make orders that take account of the possible net entitlements of the parties to the proceeds of sale of BB Street property. In that regard, on the calculations of the Court, if the husband was to receive 65 per cent of the pool one interests of $670,871, this would amount to $436,066. From that sum should be deducted those assets which he still has control of, being $60,450, leaving an entitlement to him of $375,616.
$375,616 represents approximately 75 per cent of the notional net proceeds of sale of $504,000. Before turning to a calculation of the wife’s entitlement, although the husband said that the Commonwealth Bank of Australia would require him to pay and discharge his Credit Card account of approximately $8,000 from the proceeds of sale, it would not be, in my view, proper for the wife to share the expenses of his Credit Card account considering where they were incurred year after separation. Accordingly, he will need to meet the Credit Card account himself from his share of the proceeds.
The wife’s 35 per cent of the pool one interest amounts to $234,805. Taking into account assets which she has control of now or in the future (excluding the inheritance) of $106,421 the notional net proceeds of sale from the home would be $128,384. This represents 25 per cent of the net proceeds. The net proceeds could be more or less than $504,000 – it is likely to be less because of the costs of sale and the like and in that regard I note that the husband has used part of his superannuation withdrawal to meet some of the advertising costs already.
I regard an order that effectively distributes the net proceeds of sale of the home in the way the orders set out, with the husband receiving 75 per cent and the wife 25 per cent of the nett proceeds, to be just and equitable. Otherwise they will retain those other items an interests they have as identified in the pool.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 29 September 2022
APPENDIX ONE
MR MURGATROYD: This case all started with the death of the respondent’s father in 2013 and her knowing then of her inheritance from his estate. In late 2014 the respondent deceived me into giving her consent to travel with the children to Country F claiming that her mother was dying.
MS MURGATROYD: .....
HIS HONOUR: Keep going.
MR MURGATROYD: It became apparent very rapidly after her arrival in Country F ‑ ‑ ‑
MS MURGATROYD: .....
MR MURGATROYD: ‑ ‑ ‑ that she had no intention of returning to Australia and never had and that this was part of a carefully orchestrated plan. Prior to the first abduction of the children in mid-2015 the respondent had sought, on various occasions, legal advice from Women’s Legal Service Queensland on separation, property matters and jurisdiction. In multiple financial statements from 27 January 2017 onwards the respondent had affirmed to be true and correct as well as balance sheets, the respondent deliberately failed to disclose her actual financial position, repeatedly claiming falsely that she had no superannuation, no insurance, no investments, no physical property, that is, she perjured herself.
At the hearing before Berman J on 22 March 2017 the respondent, through her barrister, advised the court that her financial statements of 27 January 2017 could be relied on by the court. Later disclosures by the respondent have proven that the respondent has lied to and misled the court, that is, her documents cannot be relied upon by the court. The respondent made first partial disclosures of her assets nearly five months later on 15 June 2017, but this disclosure did not include ‑ ‑ ‑
MS MURGATROYD: .....
MR MURGATROYD: ‑ ‑ ‑ her interests in the Town M properties or the PP fund. This was the first time that the respondent and also the last time that she had her Country F language documents that she relied on translated into English. The court has persisted in allowing her to refuse to translate her documents without consequence. On 10 October that year the respondent disclosed a single page of a three-page title for one of the parcels of land at Town M. This disclosure of incomplete documents became the pattern for her future disclosures. The court has allowed her to persist in refusing to make full and frank disclosure without consequence.
In a hearing on 21 September 2018 before Forrest J the respondent stated that she had taken her father’s will to ..... to her lawyer but later recanted that she had said this even though it’s clearly recorded in transcript. In her 17 June 2019 affidavit on the discovery of the will she claims she only learnt of its existence one month later on 15 October 2018 after she had already disclosed it. On 13 November 2018 the respondent, without the court’s leave, cancelled the ordered valuation of the Town M properties. On 9 May 2019 Forrest J bifurcated the case – order 9 of that date – principally due to the refusal by the respondent to make full and frank disclosure of her assets as she had been ordered to and in accordance with the Rules.
On 30 May 2019 Forrest made order 6 that I could file an application contravention and/or contempt but only after the parenting trial as he was fully aware that I intended to use the respondent’s own documents to prove my point. At the parenting trial the respondent claimed that I had forced her under a set of stairs prior to her filing for an emergency protection order which was not granted. This filing was on 6 May 2008. These stairs were not built at the time as I did not start the renovations until late 2019/early 2010, as evidenced by the photos I have submitted as evidence. Yesterday the respondent claimed that I had commenced renovations while she was pregnant with our third child, Y, and inferred that the incident had happened while she was pregnant, but Y wasn’t born until 2009.
Okay. Also, at this hearing she claimed, as evidenced by the transcript, that she had a full-time job to go to in Country F, which her payment slips do not support. Yesterday she claimed that she worked and was paid for 20 hours per week, which her payslips do not support. Throughout the time Baumann J has presided over this case the respondent has repeatedly given false undertakings, failed to comply with orders, disclosed partial documents, tried to seek advantage by directly communicating with Baumann Js associate without cc’ing me into the email, delaying filing and/or left filing until the last minute without consequence.
Throughout this case there have been two consistent themes: the penchant of the respondent to mislead, lie and fail to comply with orders and falsely – and fully and frankly disclose and the bench’s gynocentric bias and its failure to hold her to account for actions or lack thereof. All too often I’ve heard from the bench, “If she doesn’t comply with orders voluntarily there’s nothing I can do” or words to that effect. A sensible person, on the balance of probabilities, would probably understand that if there are no consequences for failure to comply with orders, the Rules and with our laws then there is no deterrent; rather, it becomes an encouragement not to comply with orders, Rules or laws, as has been repeatedly demonstrated by the respondent.
I assert that once the respondent has annulled the Family Court of Australia orders of 4 September 2019 she will immediately file for Country F orders for payment of child support calculated in Country F.
MS MURGATROYD: .....
MR MURGATROYD: This will mean that I will be paying at least – based on her documents – 2300 per month, and I believe this should be taken into consideration with your assessment. Her claim that she does not intend to do this because of cost of about – based on her current legal disclosed cost of about seven and a half thousand Australian dollars would be retrieved after just three or more payments. All the money thereafter would be money in the bank for her, and, no doubt ‑ ‑ ‑
MS MURGATROYD: .....
MR MURGATROYD: ‑ ‑ ‑ she would seek a costs order against me as well, so this investment of seven and a half k in securing a funding stream will be no impediment to her once she accesses her funds from the estate or her insurance policies. As for her ..... that it would be difficult to have such orders enforced in Australia is disingenuous given the reciprocal agreements and international conventions that Australia is signatory to. I can attest to this from my personal experience. Despite the claim of Dr DD that you cannot compare the 2019 expert valuation and 2022 opinion of the real estate agents, they are the only figures they have after nearly six years of dissembling and non-disclosure by the respondents.
The increase between 2019 and ’22, as shown on the disclosed documents and my calculations – there has been a 151.1 per cent increase in this period. I request that your Honour applies this rate to the two adjoining parcels of land to get a fair and equitable value for them. Okay. This is where I got stuffed up. From […] experience, I would assert that the vacant land typically increases at a similar or greater rate than developed land because of its potential to be developed. Where did I get to. ..... given the respondent’s demonstrable attempts to evade disclosure of her assets and her refusal to make full and frank disclosure as required by the Rules and repeated orders, the precedents of Weir & Weir as well as Black & Kellner apply.
The respondent should not be monetarily rewarded for her lies and deception. If any – if your Honour considers it appropriate to exclude part or all of her inheritance, then it would be appropriate to exclude what I brought into the marriage in 2002. Any division of the matrimonial property pool that is not neutral but in her favour the court will be rewarding her for her criminal behaviour. Okay. I assert that the respondent has always known what she has inherited from her father and the contention – interest that she would inherit when her mother died and that the dissembling, lies, perjury, gaslighting and projection were all deliberate attempts to conceal these interests. Okay. Got that.
Until the current judge, through lies, dissembling and perjury, the respondent has obtained orders that advantage her best interest – or should I say self-interest rather than those of the children. The tragedy for my children and me is that Forrest J knew she was lying and still made orders that, effectively, deported my children from Australia, their country of birth, citizenship, childhood, schooling and habitual residence. Last night I was informed by the Country F judge – last night I received a email from the Country F judge in her case, and he made it clear that my children are totally pathologically enmeshed and aligned with the mother, and he also strongly indicated the orders that he intends to make, that is, he is going to complete the process begun by the Family Court of Australia on 30 December 2016 and erase me entirely from my sons’ lives in the best interest of the mother.
My two biggest mistakes were to marry a narcissistic pathological liar and to trust the wrong people that I should not have trusted, especially where the best interests of my children are concerned. I love my children beyond all else, and it’s highly probably, if not certain, I will never see them again. I used to be a father.
HIS HONOUR: Yes. Thank you.
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