NABERS & NABERS - [2010] FMCAfam 69

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NABERS & NABERS

[2010] FMCAfam 69

FAMILY LAW – Property – husband litigant-in-person – husband did not remain in Court for the final hearing – Hearing continued in husband’s absence – Real Property subject to risk of coastal erosion – Contributions of the parties considered – justice and equity of orders considered.

FAMILY LAW – Costs – reserved costs fixed and ordered.

Family Law Act 1975, ss.75, 117

Applicant:

MS NABERS

Respondent:

MR NABERS

File Number:

DUC 46 of 2008

Judgment of:

Demack FM

Hearing dates:

14 & 15 January 2010

Date of Last Submission:

15 January 2010

Delivered at:

Sydney

Delivered on:

15 January 2010

REPRESENTATION

Counsel for the Applicant:

Mr Kenny

Solicitors for the Applicant:

McIntosh Emerton & Thomas

Respondent:

Remington & Co who withdrew with leave, then respondent in person and then respondent withdrew

ORDERS

That within 28 days of the date of these orders, the husband shall do all acts and things and execute all documents necessary to transfer to the wife all his right, title and interest in real estate known as Property K being the whole of the land in folio identifier [omitted] (hereinafter referred to as “the property”).
That contemporaneously with order 1 above, the wife shall pay to the National Australia Bank the sum of $130,655.70 in part payment of the amount required to discharge the Mortgage Registered Number [7].
That within 14 days of the date of these orders, the husband shall cause the balance owing to the National Australia Bank of Account account number [5] to be repaid noting that at the date of trial the amount was $25,568.22.
(i)That each of the parties do all acts and things and execute all documents necessary to cause the Mortgage Registered Number [7] to be discharged.
(ii)Should the husband fail to comply with order 3 above, within the time specified then he shall do all acts and things necessary to transfer to the wife superannuation funds currently in the husband’s account, an amount equal to the amount necessary to discharge the overdraft and in those circumstances the wife shall be solely responsible for discharge of the overdraft account referred in clause 3.
(iii)The husband be restrained from increasing the current indebtedness of the National Australia Bank overdraft account [5] in excess of $25,568.22 or redrawing further funds from home loan account National Australia Bank account number [1].
That the husband shall, within 7 days of the date of these orders, do all acts and things and execute all documents necessary to authorise Falvey Associates Lawyers to pay to the wife the sum of sixty thousand dollars ($60, 000) on term deposit on behalf of the parties with the National Australia Bank, Port Macquarie branch. The husband within 7 days of the date of these orders be entitled to the balance held in trust.
That the husband shall be deemed absolute owner of his personal property including Land Cruiser motor vehicle, motorboat and trailer, tools, wine and caravan.
That the wife shall be deemed absolute owner of her personal property, including any bank accounts, policies of insurance and motor vehicles, in her possession as at the date of these orders.
That the husband and the wife be liable for debts in his or her own name, respectively.
That the parties and the Trustee have liberty to apply in respect to the implementation of these orders upon giving 7 days notice to the other party.
That pursuant to s.106A of the Family Law Act 1975, that should either party refuse or neglect to sign any documents necessary to give effect to these orders within 7 days, then the Registrar of this Court may sign such documents on behalf of the defaulting party
The wife has leave to provide a copy of these orders to the National Australia Bank.
The husband be restrained from accessing the balance of the trust monies that would otherwise be available to him pursuant to Order 5 of these orders for a period of 60 days, or until the Costs Order of 7 April 2009 is fully paid, whichever comes first.
The husband pay the wife’s reserved costs of 8 July 2009 fixed at $2,000.00 within 45 days of today’s date.
The husband pay his half share of the valuation report in the sum of $220 (total cost of the report was $440.00) within 45 days of today’s date.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

DUC 46 of 2008

MS NABERS

Applicant

And

MR NABERS

Respondent

REASONS FOR JUDGMENT

The parties separated on a final basis in December 2006 after a 17 year marriage within an 18 year relationship. Since then, the two children of the marriage, then 16 and 10 and now 19 and 13, have remained in the care of the mother. At the date of trial, the parties’ assets consists primarily of one piece of real estate property at Property K, which had originally been purchased as an investment property, and the mortgage of which had been reduced post‑separation through the application of the proceeds of sale of other real property.
The parties also have self‑managed superannuation, the bulk of which is in the husband’s name. The husband is presently aged 50 and the wife is aged 44 and the superannuation is presently held in cash form, having previously been a house, which has now been sold.
The wife commenced her application for property orders on 19 June 2008. She sought 60 per cent of the pool, with the Property K house to be sold. The husband filed his response on 4 November 2008. He was acting on his own behalf. He, too, sought the sale of the Property K house and, essentially, sought that the pool be divided 50/50. There is a little confusion in his response document as to whether he sought the same percentage split for the superannuation. He says both 60 per cent and 50 per cent to the wife at his paragraph 7.
The house at Property K has been on the market now for many, many months and has not sold. According to annexure D of the affidavit of the husband of 4 November 2008, it was on the market as early as 10 March 2008 and, during a period of seven months, at that time, there were two auctions at which there were no bids. The house has remained on the market. The house is, unfortunately, now part of a coastal erosion zone.
The Port Macquarie Hastings Council wrote to the husband on 9 July 2008 advising that this property was part of the coastal erosion risk and that any planning certificates which would be issued for the property from then on would be subject to a notation which would read:
The land may be affected by coastal erosion risk. Council has mapped existing 50 year and 100 year limits of stable foundation zones on the land.
At that stage, council noted that many landowners were concerned of the impact that this disclosure might have on property values. That is the one piece of real property which exists in this litigation.
The husband, for the main part, has remained a litigant in person and, throughout the litigation, the wife has been represented. The matter was listed for final hearing before me yesterday, 14 January 2010 in Sydney. It was listed for two days. At the commencement of the day, I was advised that a solicitor had appeared at the Court representing

Mr Nabers. He filed an address for service when the matter commenced. He asked for the matter to be stood down so that he could read material which Mr Nabers had not provided to him. He advised the Court that he had been instructed by Mr Nabers on the Tuesday of this week, which is Tuesday, 12 January 2010.
The matter was stood down for two and a half hours, the solicitor having asked for two hours to review the material and to attempt any settlement negotiations that may be appropriate. The matter came back on about two and a half hours later. The solicitor advised that he had not been able to properly prepare in the time since he had been involved and sought an adjournment. An adjournment was refused and I will shortly go through the litigation history. Upon the refusal of the adjournment, the solicitor withdrew from the matter.
The matter then commenced with Mr Nabers as a litigant in person. I advised him of the matters which I considered appropriate for a litigant in person to be advised of and then sought to commence the trial. It was at that stage that there was an interchange between Mr Nabers and I, and Mr Nabers chose to leave the courtroom. He has not further involved himself in the process of litigation.
The wife was sworn and gave her evidence‑in‑chief confirming the contents of her affidavits and gave one other brief piece of evidence‑in‑chief, which related to the overdraft of the National Australia Bank on the Property K property. As the trial had been properly commenced with the appearances on the record earlier in the day, I considered that I had the husband’s material properly before me. Counsel for the wife has, of course, not been afforded the opportunity of cross‑examining the husband.
The husband has not remained in the Court process to have his chance to cross‑examine the wife. The wife was here, ready, willing and able to be cross‑examined. It seems to me that I properly have the husband’s evidence before me and I properly have the wife’s evidence before me and, as the wife is the only participant in litigation, all other things being equal, if there is no corroborating evidence of matters which were before me, then I must prefer the wife’s evidence.
The matter had been listed for final hearing on 22 October 2009. The husband had had, since that time, a number of months to organise himself for the final hearing. The fact that he had chosen to engage a solicitor two days before the final hearing, after he had sworn and filed and served his documents pursuant to trial directions, was a matter solely for the husband.
The matter had been commenced by the wife, as I said earlier, in mid‑June 2008. The husband had filed his response and supporting material in November 2008. A litigation guardian had been appointed for the husband prior to that time, on 21 October 2008. The litigation guardian was appointed arising from reports produced by a Mr F, Consulting Psychologist. These reports were annexed to an affidavit on behalf of the husband on 4 November 2008, but must have been earlier before the Court in some other form.
Mr F had notes on the report the date of 4 August 2008 and there is an updating letter which is addressed to Bryant CJ, who is, of course, the Chief Justice of the Family Court, which is dated 11 September 2008. Mr F, in his report, says a number of things about Mr Nabers’ mental health. He finds a general impression that Mr Nabers is significantly distressed. He says that his general presentation of symptoms implies the more benign forms of anxiety/depression. There are complicating factors in the profile that suggest he has become vulnerable to a more serious form of mental disorder. His opinion is that, despite the general presentation of only a mild discomfort, Mr Nabers is in fact vulnerable to a form of mental disorder resulting from significant stress.
It is clear, at that stage, that the psychologist’s view is that there are complicating factors which, as I read his report, may be indicative of a risk of something much more severe. The letter to Bryant CJ of 11 September 2008 was to seek some delay in proceedings so that there can be some further investigations but also for the preparation of reports. On the strength of that evidence, a litigation guardian had been appointed on 21 October 2008 and thereafter attended to the filing of the material on behalf of the husband. A conciliation conference was listed for 12 December 2008. It occurred and a settlement was not reached.
Mr Nabers has, now, many complaints about the conciliation conference, what happened at that time and serious complaints about the litigation guardian’s representation of him. It is clear from

Mr Nabers’ trial material and earlier affidavit material that these concerns have been ongoing for him. By order of 23 February 2009, when the litigation guardian was still in the matter, the matter was listed for a two day final hearing in the Federal Magistrates Court, commencing on 6 April 2009.
It was further mentioned on 18 March 2009 and the hearing dates for the beginning of April were confirmed. It is clear, though, from the order that there were some doubts with respect to the litigation guardian’s ongoing involvement and whether he might be applying for a discharge. On 7 April 2009, which is the second day of the listed final hearing, there is an order which provides for an adjournment of the trial until 8 July 2009 for a one day final hearing.
At that stage, the husband was still represented by his litigation guardian, who had briefed Counsel. Some orders were made by consent. There were orders with respect to the non-dealing with particular funds. Also attached to the order, and referred to as a notation, were a list of assets which had been agreed or not agreed or which needed to be updated. That was, in particular, with respect to the valuation or the values to be ascribed to the particular assets.
It seems to me that that particular issue is important as the litigation guardian, having been properly appointed and having briefed Counsel, was in a position to compromise those particular issues at that stage. It seems to me that the parties are bound by the compromise which was made at that time and where it states that parties had agreed to particular values, it seems to me that it would be proper, absent cogent other evidence, for those assets to be valued in that way by me in this final decision.
On 7 April 2009, further, a costs order was made for the husband to pay the wife’s costs. The trial had not gone ahead and the Court had found that the husband should pay the wife’s costs thrown away by the trial not proceeding. Of course, at that stage, the matter was listed for a further final hearing on 8 July 2009 and, as the list of assets had been compromised, it now only needed a one day final hearing. On 8 July 2009 the final hearing, again, did not occur. At that stage an order was made removing the litigation guardian.
The matter was, at that stage, adjourned for a final hearing on 4 December 2009. Again, it was listed for one day only. The wife’s costs of that adjournment were reserved. The matter was listed for a further mention on 11 September 2009 and the husband, at that stage, was ordered by Sexton FM to get a psychiatric or psychological report. There is, in the Court file, a medical certificate of 6 July 2009 which seems to have two separate parts.
One is from the Greater Southern Area Health Service, the [W] Hospital, a medical certificate handwritten on a standard form, signed on the doctor line by, [name omitted]. It says that:
Mr Nabers is unfit for work from 6 July 2009 to 10 July 2009.
There is also a typewritten document signed by somebody called

[Mr C], Mental Health. It is dated 6 July 2009 and is said to come from the emergency department, [W] Hospital, it is not on letterhead. It says this:
Dear Nil Contact for Doctor, Mr Nabers presented to the emergency department at [W] Hospital on 6 July ’09 at 0724. The presenting problem was patient complaining anxiety over the weekend, said have severe depression, going through emotional and financial crisis, lives alone, just moved to Wagga, on no medications at present. The diagnosis was mental health-anxiety.
Mr Nabers was seen by the mental health emergency team. We have also spoke with his brother, Mr N, and have left messages for the community mental health staff and his private psychologist. He described a multitude of psychosocial stressors, primarily of a legal and financial nature. He states this has resulted in anxiety attacks and depressed mood. He is not suicidal, he is not psychotic; he is a regular, though not excessive, user of alcohol.
He has had recent contact with his community mental health team and private psychologist, Ms D. We did not consider that he required a hospital admission. He was not prescribed any medication. Plan (1) for discharge home, (2) follow up from the Wagga community mental health team, (3) to attend appointment with psychologist today at 1 pm, (4) given access line details, (5) for consideration re: possible commencement of SSRI medication when assessed in the community.
Those were 6 July 2009, two days before that 8 July 2009, the abandoned trial date. On 12 August 2009 Mr Nabers sent through to the Court a report by a Mr O, psychologist. I note that there is no record in the material before me of any report by Ms D, who is said to be his psychologist at the time that Mr Nabers saw the mental health team at [W] Hospital. Mr O says that:
Mr Nabers attended for two sessions recently at the [omitted] Health Care Clinic for treatment in relation to depression, stress and anxiety. When tested against the standard measure of these disorders he was found to be in the extreme range of all three.
The report otherwise provides no clinical observations, diagnosis or prognosis. It recounts the history as given by Mr Nabers to the psychologist with respect to matters which are the subject of this litigation. The psychologist asks for consideration to be given to mediation or conciliation and sets out that Mr Nabers is concerned about spending money on legal fees. It is a report of the most grossly limited kind. The conclusion that there is an anxiety, stress and depression on an extreme range is not based on anything which is evident on the face of the report.
Mr Nabers has, since then, filed a number of affidavits and repeats, a number of times, in those documents that he has an extreme depression at the extreme range, or words to that effect. There is, it seems to me, to be very little evidence that that is the condition of Mr Nabers’ mental health. Mr Nabers did not present in Court with a flat affect or with any difficulties with concentrating.
He presented very briefly in Court but his material indicates, it seems to me, some very pervasive thoughts with respect to having certain senses of entitlement, believing that nobody is understanding him. He shows a particular level of arrogance in his behaviours and his attitudes in his material. He seems to demonstrate some forms of paranoia. Further, he seems to have a manner of expressing his achievements, which may well be exaggerated, and he seems to be expecting to be recognised for his achievements and his talents without there being any commensurate outcomes.
His material also indicates a certain level of chaos in the situations that he finds himself in. He seems to be obstructionist in his relationships with professional persons and agencies. He seems to sulk when agencies and persons in agencies do not do as he would want them to do and has a victimisation response when things don’t turn out the way that he would wish. Throughout all of the husband’s material he shows no empathy for the wife’s position at all. The wife, having commenced the litigation in the middle of 2008, could properly expect the Court to have attended to that matter and for the matter to be finalised within the 18 months that it has been in the system.
The husband had prepared his trial material. The wife had prepared her trial material. What remained to have happen was for the trial material to be tested through the process of cross-examination, for submissions to be made and for the Court to determine the property adjustment order on a final basis. The husband has had every opportunity to put his case before the Court. He has put his affidavit material before the Court. There was no suggestion that he would wish to put more material before the Court. He repeatedly accuses the wife and her solicitor of lying about financial and other matters.

His opportunity to test the evidence was available to him yesterday and he chose to not take that opportunity. It seems to me that his behaviour in court yesterday forms the same line as the attitudes which are replete throughout his affidavit material. He believed that the Court was not understanding him. He showed a level of arrogance in his behaviours and attitudes. He sulked when the Court did not do what he wanted it to do. He created chaos by having his solicitor appointed only two days before the final hearing, and he had a victimisation response by leaving the courtroom to demonstrate that nobody was understanding him and that the system, in its entirety, was failing him.
He has, a number of times throughout his material, said that the Federal Magistrates Court has not understood him and has not paid due heed to the matters that it should. I should note that I have not been the Federal Magistrate earlier involved in these proceedings and it would seem that his complaints are about other federal magistrates as well as myself. The wife is entitled to a final decision and I will give her one now.
These are property proceedings. Property proceedings proceed along a very obvious pathway. I must establish what the pool is: the assets less the liabilities. I must work out what the pool is in terms of both superannuant and non-superannuant assets. I then must consider the contributions that the parties have made at the commencement of the relationship, during the relationship, and post-separation. Contributions can take the form of financial and non-financial, direct and indirect. I must, of course, also take note of contributions which are made to the role of homemaker and parent. I must also look at the future needs of both of the parties.
Having done all of those things I must work out what property should be adjusted and how. That is determined by working out a percentage and then looking at the property which is available to be adjusted and working out the most appropriate way of attending to that task. And at the end of it all I must stand back and look, and I must observe whether the outcome does justice and equity between the parties. The evidence which I have before me is the wife’s application for final orders filed 19 June 2008, an affidavit by the wife of 19 June 2008, of 30 March 2009, of 7 July 2009, of 23 December 2009 and a financial statement of 23 December 2009.
With respect to the husband’s material I have his response of

4 November 2008, an affidavit filed on behalf of the husband by the litigation guardian of 4 November 2008, and a financial statement on the same day. I have an application in a case filed on 8 July 2009 for the removal of the litigation guardian and an affidavit by the husband filed on the same day, and an affidavit by the litigation guardian filed on the same day. I have a further affidavit of the husband of 19 August 2009, a further affidavit of the husband of 1 December 2009 and again of 7 January 2010, and a financial statement of the husband of 6 January 2010.
I also have the following exhibits which were tendered by Counsel for the wife during the course of the trial which continued in the husband’s absence after he left the courtroom around about 10 to 3 yesterday. Exhibit 1 is a portion of the National Flexi-Plus Mortgage Choice package in the name of the husband from May 2007 through to February 2008. Exhibit 2 is documents from AMP Banking with the Easy-Saver account transaction listing from June 2006 through to January 2010. Exhibit 3 is an online savings account statement in the name of the husband for the Members’ Equity Bank showing account balances in October `09 and April `09.
Exhibit 4 is a letter of resignation written by the husband to [business omitted] on 5 July 2009. The letter should be included in its entirety in this judgment. It says this:
Dear [Mr J], Re: Letter of Resignation. I would like to thank both [Ms F] and yourself for your significant commitment in making the decision to employ me as the [occupation omitted], although I unfortunately will have to submit my resignation. If you could thank everyone in our area for their kind and friendly nature also. I have not had a very good weekend, having numerous anxiety attacks, and I am under uncompromising stress and pressure at present. My health comes first and I have made the decision based on this. I was really excited taking up the position and also made a significant commitment relocating for the role and taking out a long-term lease. I have no other job application in the pipeline and my financial situation is very poor. I will work in with you in regard to an amiable exit strategy and I apologise in regard to any inconvenience this may cause Ms F or yourself as I cannot see any way at present to remedy this. Again, thank you both for your commitment. Sincerely, [Mr Nabers].
Again, that letter demonstrates a number of the personality traits that I have found are contained within the husband’s material. He is theatrical in his description of what is happening for him. He has a victimisation response. He is believing that what he is going through is more important than anything else. He exaggerates his position and believes that the others should be impressed by what he has to say.
Exhibit 5 is a thick bundle of documents from Betfair which is an organisation which the husband had a betting account with, as best as I can understand it. It is a number of hundred of pages thick and is printed on both sides and it demonstrates the interest that the husband took in placing bets on horse races from 2008 and 2009. The cash amount of betting was reasonably modest. The frequency of betting was not modest. The husband clearly spent a great deal of time in attending to his betting affairs. The wife does not put that before me to argue any wastage of matrimonial assets or inappropriate use of assets but rather to demonstrate the husband’s capacity to concentrate for prolonged periods of time on an endeavour purely of his own choosing. And it would seem to me that that exhibit demonstrates that the husband is capable, at times, of attending to tasks with a level which, perhaps, borders on obsession.
Exhibit 6, which I have before me, is a letter from Mr S, an accountant for the parties, who is the accountant for the Nabers’ enterprise superannuation fund, the parties’ self-managed fund, where he sets out the members accounts and the estimated taxation and accountancy fees including the wind up fees, and apportions those fees and taxation pursuant to the amount which is presently held in the separate names of the parties. So those figures are properly before me. Exhibit 7 is the written submissions in an outline form on behalf of the applicant wife, tendered by her Counsel.

The pool

As I have earlier said, where there is dispute between the parties’ evidence, I prefer the wife’s evidence. It is also untested but she remained available for it to be tested. The husband’s evidence is not only untested but was also, because of the husband’s actions, unable to be tested by the wife.
Property K is ascribed to the value of $380,000 by the wife. The husband disputes that valuation because he says the risk of erosion is such that the parties couldn’t possibly achieve that amount of money in realising the property, and demonstrates that by the lack of offers for purchase of the property since early 2008. The wife ascribes the value which she says was agreed by the parties through their lawyers and compromised in April 2009. The $380,000 is the maximum that could be ascribed to this property.
The wife, in the orders which she seeks on a final basis, would have her take over that property and the mortgage, predominantly, of that property. There is, it seems to me, no detriment to the husband in the property being ascribed that value. It is not proper that it be described no value. It is a piece of real property, even with the difficulties which are associated with it, with disposing of it, does not mean it has no value. It very much does have a value and the only value which is properly before me is $380,000, and I find that it is worth $380,000.
It has a mortgage which is currently at the level of $130,377. It is a home loan to the National Australia Bank. The equity, therefore, in Property K is $249,623.
There are presently moneys in a trust account arising from an earlier disposition of a piece of real property. Not all of the money was placed into the trust account but some was, and the amount which is now there, having accrued some interest, is $70,528. That forms part of the matrimonial pool.
There is a motor vehicle in the husband’s possession which the wife ascribes a value of $4,000, which was a value which was agreed by the husband through the litigation guardian’s Counsel in April 2009. There is a motor vehicle in the wife’s possession valued at $12,000 and the wife demonstrates that value through an annexure to her affidavit.
There is a caravan in the possession of the husband valued at $32,500. That value was agreed by Counsel for the litigation guardian in April. The husband says that the caravan should not be included in the list of matrimonial assets. He says that because he says that it was purchased with the proceeds of an award or compensation that he received from the Australian Taxation Office. The husband sets out in his material that he had a dispute with the Australian Taxation Office and says that when that dispute was finalised, he received moneys from the Australian Taxation Office.
Time and time again in his affidavits he refers to this money as money which he received from personal injuries or otherwise as some kind of personal compensation. There is absolutely no documentary evidence before me as to how the Australian Taxation Office classified the moneys which were paid to the husband. There is nothing before me which would cause me to have any knowledge of the Australian Taxation Office paying to taxpayers a personal injury award arising from a dispute as to taxation matters.
I do not consider that the money that the husband received from the Australian Taxation Office to be as a result of any personal injury suffered by the husband arising from his dealings from the Australian Taxation Office. I do not consider that that money, therefore, has any particular special significance, as one might expect a personal injuries award to take on. I am not aware of there being any payment for any pain and suffering or general damages. The money that the Australian Taxation Office paid to the husband, which he then in part applied to the purchase of a caravan, will form part of the matrimonial pool insofar as $32,500 is ascribed to the value of the caravan.
The husband had said that the motor vehicle that the wife presently drives, likewise, could be excluded from the pool because it was purchased by the wife from an award for a personal injury which she received. The wife does not expect or ask that the motor vehicle that she drives be excluded from the pool.
I am aware, from the wife’s material, that she says that she suffered a personal injury and that the personal injury arose from a motor vehicle accident. She also says that because of the injuries that she received which included pains in her neck and ongoing headaches, the husband took over the personal injury litigation. Three separate sets of solicitors were used and the award which was received was taken up in its entirety from the costs which were incurred because of the use of different solicitors throughout that litigation. The wife does not seek to have the motor vehicle excluded.
There is a ride-on mower and tools which have been disposed of by the husband post-separation, and the money applied to matters that the husband chose to. The amount, therefore, of $3,874 is included.
There were funds retained by the husband in the amount of $13,768 from the proceeds of sale of the Property M property, and those moneys have been retained by the husband post-separation. The Property M property having been sold post-separation. Those moneys have been applied wholly by the husband for his own personal use, and those moneys will be added into the pool.
The husband also disposed of a boat or trailer post-separation and the amount of $900 is what was realised by him. In the husband’s material he says that after having effecting some repairs, the value should be $720 or thereabouts. There is no evidence before me of the cost of any repairs. The amount which will be used by me in this decision is the amount which was realised by him, absent any evidence to the contrary. The amount of $900 will be included.
The superannuation is, as I earlier said, set out clearly in the letter by the accountant. The accountant has worked out what it will cost in terms of accountancy fees to wind up the self-managed super fund and has apportioned the costs and the taxation pursuant to the proportion in which the amounts are presently held. That would seem to me to be an entirely reasonable manner in which those two matters should be attended to. The superannuation, then, in a net form, held by the husband is $162,284 and by the wife $18,867.
The total pool then, on my maths, makes $698,747. That amount is a little less than that which is set out in the applicant wife’s outline of case document and that arises from the more exact figures in superannuation as produced by Mr S, accountant. In terms of the matrimonial liabilities, there is a home loan with the National Australian Bank, currently at $130,377.
There are two further sources of liabilities. There are debts which have occurred post-separation. The wife has a National Australia Bank personal loan at $11,000, a Visa MasterCard at $7000 and a debt to [Mr/Ms D] of $15,000. That makes a total of $34,000. The husband has a National Australia Bank overdraft at around $25,000. The wife has made a commercial decision to not include either of these debts in the pool, that being her debt of $34,000 post-separation or the husband’s $25,000 debt post-separation.
If those debts were included in the pool, the final figures for the husband would be less than will otherwise be arising from the wife’s commercial decision. I do not propose to include those debts in the pool. The husband says in his material that there are other debts which he doesn’t provide any documentary or corroborative evidence for. He says, for example, that there are ongoing debts for previous litigation, for example, arising from a difficulty with a lease to do with a café business the parties owned in Mudgee for a short period of time.
He says, for example, there may be up to $100,000 in outlays and council’s fees and other debts associated with that litigation. He provides no corroborative evidence for any of those other alleged debts. I will not include them, absent cogent evidence.

Contributions

I turn now to the issue of contributions. The parties came into the marriage with no assets of any significance. During the marriage, both parties worked to the best of their capacities and their particular talents. The husband worked in the IT industry, at one point in time was earning in the order of $200,000. He says that he worked hard and at times worked away from home such that he was working long weeks and then having to travel to be at home with the family on weekends. The wife was the primary carer of the two children, particularly when they were young. When she was available she took herself back to the work environment, but not when the second child was very young. When the first child was very young, she had to go back to work at one stage because of the dire financial position of the parties.
The husband says in his material that there are many examples of the extra special financial contributions that he has made to the parties, perhaps indirectly, by dint of his attention to disputes and litigation that he found himself in on behalf of both he and the wife. The wife denies that these were disputes that were her disputes and denies that the husband’s particular attention to these disputes were anything other than adverse and negative in terms of impact not only on the family, but also financially.
The husband spends a great deal of his material setting out, in some detail, his attention to these disputes. As an example, his affidavit of 19 August 2009 from paragraph 29 through to paragraph 31 sets out a dispute which he refers to as the [R] matter. It is worth including in the record the two paragraphs where he demonstrates all that he did. I quote:
“The solicitor that was handling our business lease matter, which I will refer to as the [R] matter, had other priorities with other, larger cases and was just stringing us along and finally, after two years without doing an affidavit, abandoned us in 2001, leaving us with a $15,000 bill and being unemployed meant we were in serious trouble and to this day has not been paid and has not been called in as yet.”
Paragraph 30:
“I contacted an old school associate who specialised in [R] matters who was the principal of his own firm and understood our dilemma stating our case was very strong, so much so that he decided to do a no pay no win, with us only have to pay disbursements, counsel and expert costs reports. An expert’s report was needed and a firm called [G] communicated that the reports would cost a total of $6000 in writing.
An associate was appointed who did not know what he was doing and a bill of $19,000 was paid without approval, to my horror. I had to fix all the spreadsheet formulas myself. A second bill was later sent for $36,000 which was totally inappropriate and I disputed, although the firm was on-sold and that debt taken up as an asset and this is still outstanding to this day and we have never had the money to challenge it legally.
An economic loss of over$700,000 was agreed by both sides if the courts decided in our favour that we had signed a long term lease and had paid rent, which we had. [Ms Nabers] had lost all interest and had segregated herself from doing anything in relation to the case years previously. I was still having to take responsibility personally for the $2,500 per month on the business loans, the overdraft, the mortgage. After my life being consumed for over six years in the [R], it was then decided that this jurisdiction could not hear commercial lease cases and we had been taken into the wrong jurisdiction, being then told that we would need to start a fresh case in the District Court.
Haywards were not prepared to do this, stating they did not specialise in District Court matters and it nearly brought the firm to financial ruin because of the length of time and multiple hundreds of thousands of dollars in legal fees it was costing having someone full-time on the case for nearly four years, and the disbursements would be probably over $100,000 including the $19,000 and the counsel’s fees that are still owed as being taken into the wrong jurisdiction was not our real fault and, knowing our financial situation, my school associate has never called them in, stating if we ever came into substantial money to try and pay him back.
This has been a burden on my conscience for a long time now. The other side threatened to counter‑sue for over $450,000 or their legal costs if it was taken into the District Court. We had to walk away from a $700,000 loss, which was a devastating blow and has been the catalyst for my having a phobia about any ongoing legal proceedings, and why I tried so hard to keep this matter out of the courts, as I knew my health would suffer now being in constant litigation for over 10 years, and losing all the wealth creation which I had worked so hard to build up, now being 50 years of age, losing my Dad’s inheritance in April 2009. [Ms Nabers] has no conscience regarding this. It may be different if it were one of her friends and one of her parent’s inheritances.”

Again, it is evident through that portion of a lengthy affidavit that

Mr Nabers presents himself as being a victim, it not being his fault. We should congratulate him on all the work that he had been doing. He was right. He got a good deal for he and the wife. He is theatrical in his manner of expressing himself. He repeatedly presents himself as a victim. He repeatedly presents himself as being good and his wife as being bad. He sets out through his material the chaos that he created by having a firm working on it, he says, “for nearly four years with one person working on it”. He is grandiose in what he says was needed to be done for his small piece of litigation. He would seem to exaggerate the importance and complexity of the matter. He repeatedly presents himself as a victim and is theatrical. He then, at the end, sulks about the wife’s lack of interest and tries to put on to her a desperate lack of empathy that he tries to transpose on to her, whilst demonstrating his own lack of empathy.
The husband’s attention to these disputes, of which there were many, including a dispute with the NRMA which was over a minor matter, which became so severe that the NRMA cancelled all of their policies, including their roadside assistance; a dispute with the ATO which he has otherwise said in his material then resulted in a personal injuries award, which I find not to be the case – just chaos and disputes everywhere that Mr Nabers turns his attention to.
These are not a contribution to the parties, either financially or non‑financially, directly or indirectly. I do not consider that he has there made any special contributions whatsoever. The contributions that he made are those which he made directly financially by having a wage coming into the family’s finances. The contributions made by the wife are those of homemaker and parent, as well as her financial contributions from her wage from time to time coming into the family.
The husband’s behaviour was not solely attended by him on these outside organisations, of which I have already mentioned. Near the point of separation, he took to writing to the wife’s employer, setting out many personal matters about the relationship to her employer. To some extent, the husband’s conduct at that time must have created a most dreadful and unnecessary stressor on the wife in terms of her capacity to continue her employment. The letters are found annexed to the wife’s affidavit of 23 December 2009. They are annexures A and C.
The response by the employer after the first letter is annexure B. Thankfully, the wife had a sensible employer who chose to respond succinctly to the husband and not to address the matters which he had set out in his lengthy fax. It was a 12 page, closely spaced, single spaced document, which sets out matters of a financial nature, matters of a personal nature, matters about the parties’ sex life, matters to do with the disputes he has had with all of these other organisations, matters about his own work. It is a most embarrassing document and would have been most embarrassing to the wife. There is nothing in the husband’s contributions which take him into any kind of extraordinary realm.
Up to the date of separation, I find that the parties’ contributions are equal.
The parties separated on a final basis in December 2006. Since then, the children have lived solely with the wife. The husband’s contributions, by way of child support, were non‑agency payments accepted by the wife for the husband’s contributions to mortgage payments for many, many months. And so, to that end, the parties’ financial position was being attended to by the husband attending to mortgage payments. It meant that the burden for the costs of child rearing fell solely on the wife.
In putting aside the financial burdens of child rearing, the mother has otherwise had the sole responsibility in all real senses for the children, insofar as they have lived with her and spent very little time with the father. Although, in more recent times, the mother and father have both been living in the same seaside community, as best as I can understand it. The older child is now a young man and is, indeed, a father himself. In recent times, in December, he tried to organise to spend time with his father. His father eschewed the idea, stating to his son that he had to attend to affidavits and the like for this court case.
The father complains that the mother has done things deliberately to damage his relationship with the children, and to make matters difficult for him in spending time with the children. There is nothing before me which would cause me to concur with that view. Rather, it seems to me, the father’s manner of interacting, not only with the Court but with all the outside agencies, may well be indicative of his manner of interacting with his own family, and his children may have formed their own views about what level of time they wish to spend with him. Of course, the older child is now a young man and is capable well and truly of making his own decisions.
The mother has had that sole responsibility post‑separation and she will have that sole responsibility into the future. And when I say sole responsibility, I am not meaning that in terms of the provisions of part VII of the Family Law Act. But, rather, I am meaning the practical effect of the situation in this family; the practical effect of the children and, in particular, [Z], the younger child who is now aged 13, living with the mother and spending limited time with the father, the mother also having the financial burden, which comes from such a situation.
Post‑separation, the husband has, in a financial sense, done some work towards contributing to the parties’ finances through the reduction in mortgages. He has not always, though, done everything that he could post‑separation. He chose, in July 2009, to resign from employment and I read that letter into the record; another letter which would seem to be theatrical and overly emotive and advising employers of matters which aren’t appropriate in a work environment. The contributions that the wife has made post‑separation, it seems to me, are significantly greater than the husband, such that an apportionment should be weighted in her favour.
I find that to be such that would take her to 54 per cent of the property pool.

Future Needs

Turning now to the future needs of the parties the wife, as I have said, will continue to have [Z] in her care through [Z]’s conclusion of her schooling. She will do that without any great assistance from the husband who is presently paying the minimum child support which is available. The wife has some capacity to work, taking into account her child-rearing responsibilities. She has never, in her working, adult life, earned the kind of money that the husband has had the capacity to earn in the past.
The husband’s working capacity in the past, and his earning potential, has been significant in the IT industry. The husband places before the Court that he says he has a depression at the extreme range and he points to the report that I had earlier read into the record. I am not at all impressed with that report and do not find that any diagnosis or prognosis is set out in any way that I can be satisfied, demonstrates that the husband has a depression. I’m satisfied that the husband’s presentation here in Court and in his material is such that he may have difficulties in the future in holding down full-time work but it seems to me these are matters wholly within the father’s control and responsibility.
If the husband decides that he chooses to be obsessed with a particular issue, for example, this litigation, or with earlier litigation, or with some matter which he is putting in a disproportionate amount of effort to the detriment of providing for himself financially through work then that is a matter for the husband. There is no evidence before me of a psychiatric or other medical nature which would cause me to believe that the husband has a disability which will keep him out of the workplace.
The husband doesn’t have any evidence of that nature before me and I cannot be satisfied that there should be any adjustment of the s.75(2) nature in favour of the husband arising from his future working abilities. I find that he does have a working ability but is presently choosing not to exercise it.
I consider that there should be an adjustment to the wife of no less than six per cent for her future needs arising from her parenting responsibilities. I find, therefore, that there should be a 60/40 apportionment of the property in favour of the wife.

Property Adjustment

The husband has many times in his material said that the house at Property K is not worth anything and shouldn’t be apportioned anything. The wife is prepared to take on that property and to take on the bulk of the mortgage. According to my maths, the property pool being at $698,747, after the home loan for the National Australia Bank is taken out of it, leaves a net pool of $568,370; 60 per cent of that is $341,022. I find that the Property K property has a net value of $250,000, that the wife has a vehicle of $12,000, that she has superannuation available to her of $18,867.
She therefore requires something just over $60,000 further adjustment to her. It’s $60,155 which I round down to $60,000. There is superannuation available to the husband of $162,000 and there is money in trust in the order of $70,528. The wife is younger than the husband and has longer in the workforce to amass superannuation for her own future needs in retirement. The wife also has the difficulty of needing to refinance a National Australia Bank loan for a house which is subject to erosion risk and there may be some difficulties associated with her amassing the money that she needs to pay out that loan.
The husband, because of what he says is a depression, which I’m not satisfied about, may have the capacity to access his superannuation moneys earlier than might otherwise be the case.
I am satisfied, in this matter, that the wife should receive the balance of the moneys payable to her as a result of my finding that the pool should be split 60/40 in her favour from the moneys in trust. It will, therefore, be an amount of $60,000 from the moneys in trust which is to be payable to the wife and the balance of the moneys in trust will be payable to the husband.
The husband will then have his superannuation available to him plus the other assets within his control and possession. I am satisfied, looking at the assets which are available, the particular difficulties with the Property K property and the uncertainty into the future as to the realities for that property, the fact that the wife is prepared to take on that risk. Looking also at the husband’s behaviour throughout the litigation and his final failure to complete his participation in the litigation, the husband’s particular manner of setting out his evidence, very little of which is of any meaningful use and almost none of which is corroborated by documents. I’m satisfied that 60/40 in favour of the wife is just and equitable, and the manner of splitting the property is just and equitable between the parties.

RECORDED : NOT TRANSCRIBED

The wife has an outstanding costs order of 7 April 2009 in the amount of $8500. The orders which I have just made for final property orders would provide for the husband having something in the order of $10,000 available to him from the trust fund of which the wife will receive some $60,000. It is submitted on behalf of the wife that, given the husband has failed to satisfy the costs order which was made against him, it is right and proper that the husband be restrained from accessing the $10,000 which will be otherwise available to him, until he has attended to the outstanding costs order.
The wife does not at this stage have an application before the Court for enforcement of that particular costs order. It seems to me that it would be proper for the wife to bring enforcement proceedings for that costs order and I will only prohibit the husband from accessing that money for a period of 60 days. If, during that time, the husband doesn’t satisfy the costs order which was earlier made for him, the wife has that time frame in which to bring an enforcement summons for that costs order.
I therefore restrain the husband from accessing the balance of the trust moneys which would be otherwise available to him pursuant to these orders for a period of 60 days.

RECORDED : NOT TRANSCRIBED

The wife seeks a further costs order with respect to her costs reserved of 8 July 2009. I set out the litigation history at the beginning of my decision. The costs which she seeks for that day are $,2000. Her solicitor was going to appear on her own behalf to do the advocacy. She and the client turned up ready to run the matter. The matter did not go to final hearing on that day. What happened on that day was the litigation guardian was removed and the matter was adjourned for a further trial in December 2009. The wife seeks her costs thrown away by that adjournment.
It seems to me that it is not a matter for the wife to be placed at detriment by the husband’s inability to properly conduct his litigation. His affidavit material is replete with criticisms of the litigation guardian but sets out in the very early stages why it was that he needed a litigation guardian and it seems that when the litigation guardian then didn’t perform as the husband would seek, it is a further example of the chaos that the husband has created. The wife should not have to bear that costs arising to her from the husband’s behaviour. I consider under section 117(2A) in terms of the case management by the husband and his manner of attending to the matters that it is wholly appropriate for the wife’s costs thrown away of 8 July 2009 to be paid by the husband fixed at $2000.
The husband is to pay the wife’s costs of 8 July 2009 fixed at $2000 within 45 days of today’s date. The wife also seeks that the husband pay his half share of the second valuation of the Property K property. That’s an amount of $220. It is wholly appropriate that the Court have independent expert evidence as to matters such as valuation. It is not for the wife to bear that cost entirely on her own. The cost should be borne equally by the parties and the amount of $220 is fixed, and that is to be paid by the husband to the wife within 45 days.

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

Associate: Joanne Balson

Date: 29 January 2010