Newett & Newett (No. 4)
[2021] FamCA 318
•20 May 2021
FAMILY COURT OF AUSTRALIA
Newett & Newett (No. 4) [2021] FamCA 318
File number(s): BRC 2179 of 2018 Judgment of: BAUMANN J Date of judgment: 20 May 2021 Catchwords: FAMILY LAW – PROPERTY – Where further submissions were invited before final property orders were pronounced – Where the Court received oral submissions on behalf of the husband and written submissions from the wife as to the form of order – Where the wife sought a re-trial of or to re-open property proceedings – Final property orders made consistent with the Reasons for Judgment delivered. Legislation: Family Law Act1975 (Cth) ss 75(2), 102NA
Property Law Act 1974 (Qld)
Cases cited: Kennon & Kennon (1997) FLC 92-757
Newett & Newett (No. 3) [2021] FamCA 187
Number of paragraphs: 26 Date of hearing: 10 May 2021 Place: Brisbane Solicitor for the Applicant: Mr S Richardson
Damien Greer LawyersRespondent: Self-represented ORDERS
BRC 2179 of 2018 BETWEEN: MR NEWETT
Applicant
AND: MS NEWETT
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
20 MAY 2021
THE COURT ORDERS:
1.That upon the sale of the property situated at R Street, Suburb JJ in the State of Queensland any net proceeds of sale available to either of the parties shall be distributed in the following order of priority:
(a)To pay to the husband such sum as will result in him receiving 60% of the combined net pool (taking in to account the superannuation split in Orders 2 to 7 below and the pool of assets and liabilities set out in paragraph 47 of the Reasons for Judgment delivered 8 April 2021); and
(b)To pay to the wife such sum as will result in her receiving 40% of the combined net pool (taking in to account the superannuation split in Orders 2 to 7 below and the pool of assets and liabilities set out in paragraph 47 of the Reasons for Judgment delivered 8 April 2021).
2.That the Court allocates, as required by s 90XT(4) of the Family Law Act 1975 (Cth), a base amount of $50,000 to Ms Newett (“the wife”) out of Mr Newett’s (“the husband”) interest in Super Fund 1 (account number …27).
3.That in accordance with s 0XT(1)(a) of the Family Law Act 1975 (Cth):
(a)the wife is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and
(b)the entitlement of husband in the Super Fund 1 (or the entitlement of such other person who becomes entitled to receive a payment out of the Husband’s superannuation interest) is correspondingly reduced by force of this Order.
4.That the trustee of Super Fund 1, namely AL Bank Services Limited (“the Trustee”), shall do all such acts and things and sign all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Family Law Act 1975 (Cth) the entitlement awarded to the wife in the immediately preceding clause of this Order; and
(b)pay the entitlement whenever the Trustee makes a splittable payment from husband’s interest in Super Fund 1.
5.That Orders 2 to 4 hereof have effect from the operative time and the operative time is the fourth business day after the date of service of these Orders on the Trustee.
6.That after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (Cth) (“the SIS Regulations”), the husband shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the husband’s request in accordance with the SIS Regulations, for the rollover or transfer of the non-member spouse interest to a complying superannuation fund of the wife’s choosing in accordance with the SIS Regulations.
7.That the Court notes:
(a)the value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and
(b)any payments from the husband’s superannuation interest in Super Fund 1 made after the Trustee has created a new interest in the wife’s name in Super Fund 1 are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001 (Cth).
8.That within twenty one (21) days (“the collection period”), the wife shall do all things, sign all documents necessary and collect all of her personal items currently held in storage by ANZ, and the husband shall be declared the owner absolutely of any items not collected by the wife and remaining in storage by ANZ from the expiry of the collection period.
9.That from the settlement date and unless otherwise specified in this Order and except for the purposes of enforcing payment of any money due under these or any subsequent Orders:
(a)each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at this date including any jewellery, furniture, furnishings, shares and motor vehicles;
(b)moneys standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held;
(c)each party hereby foregoes any claims they may have to any superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation or insurance stand shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other; and
(d)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this Order.
10.That each of the parties shall indemnify and keep the other indemnified with respect to all liabilities, debts, taxes, loans, liens, charges, claims in contract, tort or breach of statutory duty, actions, suits, demands and or chooses in action owing by them either solely, jointly and or together with any third party and with respect to any such claim that may from time to time be brought by one of the parties against the other relating to matters prior to the date of these Orders.
11.That the husband and the wife shall do all such things and sign all documents necessary to give effect to these Orders and in the event that either party refuses or neglects to comply with any part of these Orders, then the Registrar of the Family Court of Australia Brisbane Registry is hereby appointed to execute all deeds and documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to these Orders, and the party in default shall pay all reasonable costs incurred by the other party for the purposes of enforcing this Order.
12.That it shall be sufficient authority for the Registrar to act pursuant to Order 11 hereof to have before him or her an affidavit sworn by a party or by the solicitor for a party in which they depose that one of the parties has refused or neglected to comply with a provision of this Order, and detailing the provision, the acts undertaken to have him or her comply and his or her response (or lack of a response).
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Newett & Newett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
On 8 April 2021, for Reasons published (see Newett & Newett (No. 3) [2021] FamCA 187) the Court listed the matter for further submissions as to the form of property orders at 12 noon on 10 May 2021. In my view, the need for that further submission was because it was not possible to do justice and equity to the parties in respect of the pool identified in those Reasons for Judgment at [46] without there being a superannuation splitting order of the husband’s superannuation which ultimately became the most secure and significant asset in the pool. The parties were offered the opportunity to be heard on that proposition – and both elected to do so. The husband was represented by Mr McGregor or Counsel; the wife remains unrepresented. Both appeared by telephone.
Having listed the matter for further property submissions on 10 May 2021, other applications relating to the parenting proceedings, which are still listed before me for a trial to commence on 20 September 2021, were listed on that day as well. For reasons given orally, Mr Taylor of Counsel for the Independent Children’s Lawyer (“ICL”), Mr Kingston, who has been the subject of an Application by the wife for his removal, was not required to provide further submissions. I made it clear to the parties I would only deal with the property proceedings today and all other applications (which seems to include a review of Registrar Walker’s decision) were adjourned until 12 noon on Friday, 21 May 2021 for hearing.
The wife in these proceedings, who is unrepresented, filed significant and comprehensive written submissions at 11.53am on 7 May 2021 comprising, in total, some 86 pages. I have read those submissions. As I will soon acknowledge, most of the submissions relate to evidence the wife would wish to put before the Court if there was a re-hearing of the property proceedings. When I attempted, after hearing submissions orally by Mr McGregor in response to the written submissions of the wife, to inform the unrepresented wife that I do not have the power to order a re-hearing and, as I will soon explain, would not be prepared in the circumstances of this case to re-open the proceedings because of the wife’s decision not to attend the final hearing, the wife became understandably distressed. All attempts to try and encourage her to remain within the boundaries of a response orally to the submissions of Mr McGregor failed, as the following parts of the transcript towards the end of the hearing, when I brought the proceeding to an end, demonstrate:
HIS HONOUR: Please tell me what your response is, madam, please.
[THE WIFE]: Alright, I’m going to start at the start. I’ve got it written down so please bear with me and please don’t interrupt me. Okay so in terms of my submission the only things I want to highlight are three things. One, borders being brought upon the Court --- records of the com court portal on 10 August 2018 where Mr Newett, Scott Richardson and Mr AQ met together to um look at the deal about how they were going to transfer my children. Okay do that’s the first thing. So the fraud has been fraud since that date. That is why Mr Newett owes all the money for this entire case. He could not have done that without completely, completely intending to harm, that the criminal offence, intending to harm me and the children in that act. Alright. So you need now to take everything all the way back to 10 August 2018. Scott Richardson was involved his firm is liable alright. I have had all my money withheld for three years where I could have been earning money except I have been basically, as you hear in my voice, completely traumatised for three years. My children were taken away falsely. Alright, you’ve got the Dr A evidence before you. You know what they did. But you know that. And it’s very clear. So they have committed fraud, okay not only that they have committed a conspiracy to commit crime and conspiracy to commit child stealing through your honourable court. It is not okay for them to use your court as a system for fraud.
HIS HONOUR: Madam could you please talk about the property matter please. You’re not talking about the property.
THE WIFE: The property is summed into that because you can’t make a determination about property until you know what’s happening with the children. Okay, you can’t make a determination about property until you can determine whether the Kennon and Kennon adjustment. The Kennon & Kennon adjustment is relevant to what I just said because in the fraud he committed gross domestic violence, gross family violence. Okay. He swindled the Court and swindled me in the process. Now you have to do property last because it is the only fixed asset left that I have any certainty of getting any money out of. Alright. He can hide money everywhere. As soon as you liquidify those assets he will take it and it will be gone. So we’re not going to liquidify any assets. Now the reason the ANZ has said they have rights to take the property is because Mr Newett on the 12th of February this year went and illegally removed by caveat. Now don’t you think that we’re part of family proceedings and disclosure is really important and that there should have been a request made and that that property was under the control of the Court so therefore he should not be tampering with anything behind the scenes? Isn’t that right? Well he did. So in that he has been showing his fraudulent actions and his intention to harm. The whole time he is controlling the court, the Court is not controlling him. So the issue is, is if you liquidify that asset he will take it, he will run with it and he has the children so he is going to run with the children. So we need to deal with domestic violence first, the family violence aspects first. That gives us the Kennon & Kennon, no please don’t interrupt, that gives us the Kennon & Kennon. The children’s matters then come next because as a fall out from his abuse clearly the children cannot spend any time with him. This is a no contact case. This a no contact case. So clearly the children’s matters are next and that determines what are the future needs. You can’t calculate future needs until you know those two things.
HIS HONOUR: Thank you for that.
THE WIFE: And you know in the submission, in the submission right at the end and I need to take you to Annexure A I just want to point you there that the District Court Judge is in a lot of trouble, he’s about to be in a lot of trouble because he has fabricated findings of fact.
HIS HONOUR: Madam, please.
THE WIFE: No, she has. She said that I have been convicted of criminal offences. Now you need to know that you read that Judgment. You told me you read that Judgment. Yeah I’ve read it. And it’s absolutely defamatory. You said that Mr Newett…
HIS HONOUR: Madam, can you please restrict. No no madam, you have to restrict yourself to the property issue and you’re not doing it.
[THE WIFE] I am. I am.
HIS HONOUR: You’re not.
[THE WIFE] Because you didn’t let me cross examine him.
HIS HONOUR: No you’re not. You’re not madam.
[THE WIFE] Listen, please let me finish my submission.
HIS HONOUR: Well stick to the area that I have asked you to stick to madam.
[THE WIFE] I am.
HIS HONOUR: Not about a judgment by a District Court Judge on appeal. That is not assisting me.
[THE WIFE] It is related.
HIS HONOUR: It’s not related.
[THE WIFE] Can you let me get to the point about it?
HIS HONOUR: I would like you to.
[THE WIFE] Yes, he received the benefit of a 102 okay he received via that court through the domestic violence proceedings he then received the benefit of not being able to be cross examined by me.
HIS HONOUR: No, with great respect that’s just nonsense.
THE WIFE: No that’s not it was part of s 102NA.
HIS HONOUR: That is a nonsense. Please move on.
THE WIFE: You said it. You said I could not cross-examination him.
HIS HONOUR: You had the benefit of an order. You wouldn’t take the advice. Now I already gave a judgment about that.
THE WIFE: That is not true and I’ve got all the emails to show you that. I’ve have already put them in evidence okay so that is not true at all. They would not take my instructions.
HIS HONOUR: Madam, have you got anything more about property please?
THE WIFE: Yes the property was dependent upon me cross examining Mr Newett on the stand and I couldn’t do so because there was a s 102NA order in place and a rule that I couldn’t’ cross-examination him which then links back to the Judgment of the District Court Judge.
HIS HONOUR: Yeah well yes that’s not actually what 102NA. 102NA allows you to have the use of a lawyer but you couldn’t find a lawyer.
THE WIFE: Okay but isn’t the rule in s 102NA and maybe it’s a different section really close to that somewhere in the legislation that says that if there’s a domestic violence order in place that you cannot cross-examination the party who is the beneficiary of the order.
HIS HONOUR: That’s the law. That is quite correct and that’s why the commonwealth produced a scheme to fund independently.
THE WIFE: I know.
HIS HONOUR: And you had access to that scheme.
THE WIFE: I had access to it but Mr AQ and Mr AR were working together for Legal Aid at the time. Alright, they’re both in Legal Aid.
HIS HONOUR: No they’re not actually.
THE WIFE: Well they were. They’re both legal aid lawyers, they’re both appointed by legal aid. Okay they’re not full-time they are contracted by Legal Aid.
HIS HONOUR: Yes that’s true.
THE WIFE: Okay so what this links back to is that Mr AQ met with Mr Newett and Scott Richardson on the 10th of August 2018 so Mr AQ can be seen to have been acting for the father in the case. He filed Mr Newett’s affidavit. Right. So my children were never represented, Mr Newett was.
HIS HONOUR: Madam…
THE WIFE: Now hang on, then we get further up to the 102NA issue.
HIS HONOUR: No madam it’s not relevant to the property issue. Please move on.
THE WIFE: It is because you told me that my lawyer….
HIS HONOUR: Madam if you can’t move on to oral submissions in response which was what I indicated you could do, having already filed very extensive written submissions which I acknowledge…
THE WIFE: I need to correct the...
HIS HONOUR: I do not have to listen to things which are not helpful in the property proceedings. They are matters which might be relevant long term in the parenting which is listed before me.
THE WIFE: …. to me that I lost my lawyers because I didn’t take advice.
HIS HONOUR: Well madam that is true.
THE WIFE: Well the advice was that I do what Mr AQ wanted…
HIS HONOUR: Well madam…
THE WIFE: No, sorry I am not going to do what the father wants by having the father instruct Mr AQ and Mr AQ instruct my lawyer. That’s what happened.
HIS HONOUR: Is there anything else Ms Newett?
THE WIFE: I am trying to say that I was not represented because of fraud.
HIS HONOUR: Well I know you say that
THE WIFE: And I was not represented. No no but you need to take that. That is why we need a new trial and that is why we need to because we need to bring all of that evidence in to show that they were manipulating the process to get these specific outcomes that are written in those orders of Mr Newett.
HIS HONOUR: But Ms... I can’t give you a new trial. Do you understand that?
THE WIFE: Well then you need to refer it to someone else who can because you have not heard the matter.
HIS HONOUR: With great respect…
THE WIFE: You have not heard the matter.
HIS HONOUR: Madam you are not listening to me and I am unable to make the point to you to respond to. I do not have a power [inaudible…] unless you can stop interrupting when I speak to you, I am going to have to finish this submission. Now I want you to listen very carefully to what I’m going to day. Listen to this please. I do not have the power in the current circumstances to order a re-trial. That is a power open to the Full Court on appeal. I have made a decision and given you reasons about why I would not disqualify myself in the case. You have appealed that decision. You may be found to be correct, but at this point in time you are wasting your breath asking me to give you a re-trial in circumstances where that is not a power that exists in this matter. So please don’t keep going there because I can’t do it. It’s not my power.
THE WIFE: Well then you can’t … the orders that he seeks today because they weren’t part of the trial.
HIS HONOUR: I can do, madam what I can do and what I intend to do, what I intend to do is to give final property orders with reasons as soon as I can because…
THE WIFE: And when you do you will be committing an act of fraud
HIS HONOUR: And then you’re…
THE WIFE: You will be committing an act of fraud
HIS HONOUR: You then you are perfectly entitled madam to appeal that decision
THE WIFE: [inaudible… ] and you become personally liable for my losses do you know? That you are going to be personally liable for your own money….
HIS HONOUR: Thank you very much, unless there’s anything further I have given you an opportunity, you can’t retain and restraint yourself to dealing with matters in reply to Mr McGregor, you keep going to other areas. I understand you’re upset I have to deal with you a lot of time and I understand this is very difficult by phone, but madam you aren’t dealing in reply, unless you’ve got anything in reply to what Mr McGregor said about the property matter I propose to finish the hearing now, reserve my decision and give you a judgment within the next 14 days about the final orders. I do propose to make final property orders.
THE WIFE: My reply is there was no judgment because the trial was not heard.
HIS HONOUR: The trial was heard.
THE WIFE: It was not and there was a conversation between you and Mr McGregor which does not make it a fair trial. Okay. You don’t get to ask the questions, I do.
HIS HONOUR: Thank you. Madam I am ceasing this hearing now. I have tolerated your personal abuse and your inability to be able to concentrate on the issue that clearly this matter was dealt with today.
THE WIFE: And I’ve tolerated your abuse.
HIS HONOUR: Oh thank you. Matter stands adjourned. I reserve my decision. I do not intend to hear further I’ve given you a fair opportunity, you’ve chosen not to take it.
THE WIFE: No you haven’t.
HIS HONOUR: Thank you the matter is adjourned.
All parties appeared by phone today and the hearing was interrupted by an emergency evacuation of the building, so it was hardly a pristine way to take submissions. But, as I say, the wife’s very extensive written submissions were before the Court and had been considered.
REOPENING/RETRIAL
The Reasons for Judgment delivered on 8 April 2021, set out the basis upon which the Court decided to proceed with the property proceedings, having bifurcated the proceedings from the parenting proceedings for reasons also identified. Subsequent to the hearing that took place on 30 November 2020 and 1 December 2020, a number of Appeals have been launched by the wife on various orders made. I have been at pains to explain to the wife that there are appeal rights available to her in respect of orders made and it is not for me to pre-empt any decision of the Full Court.
The wife in submissions today indicated, when I tried to explain to her that any final order I make could be the subject of an appeal by her, as of right, that is not possible as an earlier decision of the Full Court, constituted by Tree J, delivered 22 April 2021 which involved security for costs applications by the husband which were successful, prevents her from commencing an appeal in the property proceedings. In my view, the Orders of the Full Court delivered 22 April 2021 does no such thing and relates entirely to Notices of Appeal 84 of 2020 and 85 of 2020.
It would, in circumstances where the trial proceeded in the absence of the wife as a result of her choice not to participate and when she had, in my view as already indicated, an opportunity to file material, not be in the interests of justice or fairness for there to be a re-opening of the proceedings to now give the wife an opportunity to lead further evidence.
It is apparent that at least one of the significant concerns of the wife is how the restraint imposed by s 102NA of the Family Law Act 1975 (Cth), as noted in some earlier judgments, the wife has been unable to retain lawyers appointed under what is now commonly described as the “cross-examination scheme”, because all three different lawyers appointed gave her advice she was not prepared to follow. It is now the position that the scheme cannot offer her further representation – with the clear effect that as an unrepresented litigant she is not entitled to cross-examine the husband/father. The wife is subject to a Queensland protection order for five years, made by a State Magistrate and not set aside by the District Court Judge.
This statutory impediment to being able to cross-examine the husband in this property case on family violence issues in particular (but other issues as well) and where that situation was unlikely to change, was one of the issues the wife relied upon when seeking to bifurcate the proceedings. The wife however wanted the property proceedings to be determined after the parenting applications. For reasons given, I did not take that approach.
It was always the intention of the Court to try complete the parenting proceedings with the participation of an ICL, and a new ICL has been appointed with the matter listed for hearing for five days in September 2021. I note, however, that the wife has brought a fresh Application on 9 April 2021 that Mr Kingston, the current ICL, be removed, and that Application will be dealt with on 21 May 2021.
Accordingly, most of the submissions of the wife in the extensive written submissions filed by her are not relevant to the issue on which submissions in the property proceedings were sought. The Court has made findings on the evidence as best it could. Its decision manifested by the final property orders which appear at the commencement of these Reasons are capable of appeal by Ms Newett and she has already appealed, I understand, the decision to proceed with the property application in her absence. There will then be matters for the Full Court.
I am firm in my view that, absent Ms Newett’s application for disqualification which I dismissed being overturned on appeal (which I understand is still pending) I ought complete the task which I, as a judicial officer, have a duty to complete.
In short, therefore, the following findings are made in respect of the order which I propose to make. In that regard, Appendix A is the proposed order sought by the husband and Appendix B is the property orders (at paragraphs 9 through to 43) which the wife seeks in the alternative where I decide, as I do, to deliver this Judgment in relation to the property trial and the final orders. Having reached that decision, I have considered the matters which the wife terms as “procedural” but none of them, in my view, are sufficient to justify me withholding delivery of Reasons and pronouncing final property orders in this case. It is again worth acknowledging that the justice and equity and the needs of the wife are not the areas of need and justice and equity that are to be considered. The Applicant husband is also entitled to have these matters brought to an end and may, again, as in other matters, be required to defend any appeals brought by the wife as she is legitimately entitled to do.
FORM OF ORDERS
The wife, at paragraph 9 of her orders sought, engages with how the proceeds of sale or the value of the property, representing the former matrimonial home at R Street, Suburb JJ, ought be distributed. As my Reasons for Judgment made clear, the wife’s position was simply that she ought be entitled to the full value of the former matrimonial home without any reference to the encumbrance to the third party secured creditor, the ANZ Bank. I have already indicated that would not be just and equitable in my view. I accept the wife does not accept that finding.
In any event, the position with the property has now moved on from the position as at December 2020, in that there is evidence before the Court contained in the husband’s affidavit filed 6 May 2021 (see paragraph 61) that the ANZ Bank, as mortgagee, has taken possession of the property. Accordingly, the sale of the property will proceed by way of the ANZ Bank’s actions permitted under the Property Law Act 1974 (Qld) and there will ultimately, and hopefully, be some net proceeds. I accept, as I have already indicated in my earlier Judgment, that those net proceeds are likely to be diminished by the costs of marketing and selling the property and the arrears of the mortgage. To the extent that the wife, in her submissions, says that the property now has a greater value than was set out in the schedule, then the orders I make allow for the net proceeds to be what is distributed, not some guesstimate of the proceeds arising from an earlier valuation. The wife asserts that the current value of the property is between $1.2 million and $1.4 million. The ANZ Bank has a duty, as mortgagee-in-possession, to obtain fair market value.
I have indicated that a splitting order is required to do justice and equity and that is still my view. Accordingly, an order will be made in terms of a splitting order.
The following paragraphs of the wife’s minute of order are effectively an attempt to re-agitate the findings made at the trial that she chose not to attend for the reasons that she had already indicated. It is not, in my view, permissible to consider those matters for the following reasons:
(a)Orders 11 and 13 relate to a motor vehicle and the use of that vehicle. The history of the matter shows that proceedings were before the Court in relation to that vehicle and Orders were made by me on an interim basis, and not the subject of appeal, that provided for a motor vehicle to be repaired and returned to the wife. The evidence is that occurred but that the wife wanted a different vehicle. Attempts to now agitate for some adjustment by way of replacement vehicle and/or damages for the use of the vehicle are ill-founded and cannot be entertained at this stage;
(b)At paragraph 12, the wife seeks an order that the husband pay to her “the full value, including interest, of all business taxation gains made by the Husband due to his retention of her vehicle in the fixed sum of $30,000”. This seems to be an attempt to clawback some benefit that she says the husband may have got for these payments that may have been made by him for a vehicle available to the wife. Being as it may, for the reasons already identified in the property proceedings, I did not form the view that VV Pty Ltd had any value other than as a vehicle to distribute income to the husband as a contractor and any income tax deductions for motor vehicle expenses do not significantly affect the value of VV Pty Ltd;
(c)Order 14 deals with the wife seeking an order for the full costs of “property Security Measures in the fixed sum of $10,000”. There is no evidence about these matters. In any event, if they were done, then they will form part of the value of the property which is now in the possession of the ANZ Bank. There is no evidence of any such works being done or the cost of any such works;
(d)Order 15 seeks to deal with the matter by way of reinstating an Order by Federal Circuit Court of Australia Judge, Judge Jarrett, made 2 October 2019, restraining the sale of the home. Matters have moved on since then and the matter has been the subject of final orders being pronounced today;
(e)The wife is of the view that her caveat that she filed at one stage of the proceedings was unlawfully, or improperly, removed by the husband. A caveat operates to give third parties notice of a proprietary interest in the property by a third party. The property has been registered in the name of the husband at all times and the wife, as my own Reasons for Judgment identify, had claimed an interest in the property. However, as the property has now moved into the possession of the ANZ Bank, and in circumstances where the caveat has expired or been removed, no orders in relation to reinstalling a caveat have any utility;
(f)At paragraph 18, the wife seeks to join the ANZ Bank and VV Pty Ltd. As final orders are being made, there is no basis for joining parties because proceedings are not proceeding past the final orders being made unless so ordered by the Full Court;
(g)Order 19 seeks various injunctions against the ANZ Bank. They, similarly, have no utility and to the extent that, at order 20, the wife maintains that she has “full and sole unencumbered residential rights to the marital property until the delivery of written Final Property orders” the final orders deal with that concern. It should be noted that the wife, of course, has repeatedly told the Court that she cannot come to live in Queensland at this stage because of the actions of the husband and is, as a result, unable to use the home to live;
(h)Orders 22 to 27 relate to financial administrative orders and the appointment of a forensic accountant. Those matters, preliminary to a trial, have been earlier dealt with and applications for forensic examination at the cost of the father were dismissed. No such orders should be made now;
(i)Order 28 purports to now involve issues relating to the family of the husband on the basis that “25% of the current value of the entire Husband’s Family Estate be paid to the Wife within 14 days of Final Order”. There is no basis at law for such an order and it will not be made;
(j)The husband does not acknowledge the relationship with Ms AN for the purpose of s 75(2). The very vague, ill-described claim by the wife that the “Current Partner of the Applicant, Ms AN, be required to pay back to the business and marital pool all monies invested in her phone plans, entertainment, and other such expenses” (as per original) is vague and will not be made. There is no evidence to support such a claim;
(k)I have already dealt with in the earlier Reasons for Judgment the business, VV Pty Ltd and I do not say anything more in these Reasons. For these reasons, order 31 will not be made;
(l)The wife maintains, it seems, a claim for child maintenance (see proposed order 32 and 33). In my view, the wife is currently the liable parent for child support. That is because the children have been living with the father, as required under Orders of the Court; Orders which I know Ms Newett strenuously opposes. Nonetheless, no child support (as opposed to child maintenance) jurisdiction has been enlivened and is not therefore to be considered in this property Judgment. In my view, I have already dealt with the wife’s claim for spouse maintenance and her failure to produce evidence in respect of the threshold test of being unable to adequately support herself. To some degree, her submission is premised on the fact that the children live with her, but they have been living with the father now for some time. There is no basis on the evidence to make a spouse maintenance order sought by the wife, particularly where, as Mr McGregor submitted, the wife has failed to provide full discovery on her ongoing entitlement to a form of disability insurance which seems currently to meet her personal needs; and
(m)In relation to “adjustments”, it is the wife’s clear position that the property proceedings could not continue because only parenting proceeding would uncover the level of family and domestic violence that she has been subjected to such as would enable her to include a Kennon & Kennon (1997) FLC 92-757 component, at the very least in the property proceedings. The wife sought bifurcation – but with the parenting application heard first. I made a decision to proceed with the property proceedings first for Reasons given – and which decision, I accept, is under appeal by the wife.
Orders 40, 41, 42 and 43 sought by the wife do seem to me to be an attempt to argue that, in determining how the limited property found by the Court to exist should be distributed, that a 60% interest to the husband would be inappropriate for the reasons given by the wife. In my property Judgment earlier referred to at [52] I indicated that an adjustment in favour of the husband in the region of 5% to 10% would be appropriate. The husband, of course, sought a more significant adjustment to him and therefore a greater share of the limited pool. I take it that the wife’s submissions are that the adjustments should favour her so as she receives more than 70% of a much bigger pool (the husband having to meet all liabilities).
I do not regard that as just and equitable for the reasons set out in the earlier Judgment. Having heard her submissions, I propose to find that an adjustment, overall, of 60% to the husband and 40% to the wife is appropriate, including, as it must, a superannuation splitting order. This differential of 20% on a combined net pool of $389,860, perhaps to yet be adjusted by the actual net proceeds of sale and the mortgage on the R Street property, would equate to approximately $77,000 which, in all of the circumstances, I regard for the reasons given, as appropriate.
CONCLUSION
Of course, it is not percentages that determine what is just and equitable. The law requires the Court to consider the effect of the orders to demonstrate that justice and equity to both parties is achieved.
I rely upon findings made in these Reasons for Judgment and those in my earlier Reasons.
The effect of the orders which appear at the commencement of these Reasons, based on the notional pool set out at paragraph 46 of the earlier Reasons is as set out next – noting the use of the term “notional pool” denotes the uncertainty that arises from whether the net proceeds from the sale of the Suburb JJ home is greater or less than the amount of $181,704 after a sale by the ANZ Bank as mortgagee in possession.
On a net pool of $389,860 the husband’s 60% share ($233,916) will comprise as follows:
Interim property distribution
$15,665
Remaining superannuation after splitting order in wife’s favour
$106,826
Plus share of balance of notional net proceeds of the Suburb JJ property
$111,425
$233,916
The wife’s 40% share ($155,944) will comprise as follows:
Interim property distribution
$15,665
Superannuation
$20,000
Superannuation split
$50,000
Plus share of balance of notional net proceeds of the Suburb JJ property
$70,279
$155,944
I believe that a superannuation split in the region of $50,000 to the wife is more just and equitable than the husband’s proposal of $68,413 as this slightly increases her share of the cash proceeds. The husband’s superior current income and his capacity to decide the extent to which he wishes to increase or not his superannuation benefits (as effectively a self-employed person through VV Pty Ltd) persuade me that the wife having a higher cash return from the sale proceeds than that proposed by the husband, creates justice and equity.
I order accordingly.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 20 May 2021
APPENDIX A
1. That upon the sale of the property situated at R Street, Suburb JJ in the State of Queensland any net proceeds of sale available to either of the parties shall be distributed in the following order of priority:
1.1To pay to the Husband such sum as will result in him receiving 60% of the Combined Nett Pool (taking in to account the Superannuation Split in Orders 2 to 7 below and the pool of assets and liabilities set out in paragraph 47 of the Judgement of 8 April 2021); and
1.2To pay to the Wife such sum as will result in her receiving 40% of the Combined Nett Pool (taking in to account the Superannuation Split in Orders 2 to 7 below and the pool of assets and liabilities set out in paragraph 47 of the Judgement of 8 April 2021).
2. That the Court allocates, as required by Section 90XT(4) of the Family Law Act 1975, a base amount of $68,413 to Ms Newett (“the Wife”) out of Mr Newett’s (account number …27) (“the Husband”), interest in Super Fund 1.
3. That, in accordance with Section 90XT(1)(a) of the Family Law Act 1975:
3.1The Wife is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
3.2the entitlement of Husband in the Super Fund 1 (or the entitlement of such other person who becomes entitled to receive a payment out of the Husband's superannuation interest) is correspondingly reduced by force of this Order.
4. That the trustee of Super Fund 1, namely AL Bank Services Limited ("the Trustee"), shall do all such acts and things and sign all such documents as may be necessary to:
4.1calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement awarded to the Wife in the immediately preceding clause of this Order; and
4.2pay the entitlement whenever the Trustee makes a splittable payment from Husband's interest in Super Fund 1.
5. That orders 2 to 4 have effect from the operative time and the operative time is the fourth business day after the date of service of these Orders on the Trustee.
6. That, after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 ("the SIS Regulations"), the Husband shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the Husband’s request in accordance with the SIS Regulations, for the rollover or transfer of the non-member spouse interest to a complying superannuation fund of the Wife's choosing in accordance with the SIS Regulations.
7. That the Court notes:
7.1the value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and
7.2any payments from the Husband's superannuation interest in Super Fund 1 made after the Trustee has created a new interest in the Wife's name in Super Fund 1 are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001.
8. That within twenty-one (21) days (“the collection period”), the Wife shall do all things, sign all documents necessary and collect all of her personal items currently held in storage by ANZ, and the Husband shall be declared the owner absolutely of any items not collected by the Wife and remaining in storage by ANZ from the expiry of the collection period.
9. That from the settlement date and unless otherwise specified in this Order and except for the purposes of enforcing payment of any money due under these or any subsequent Orders:
9.1Each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at this date including any jewellery, furniture, furnishings, shares and motor vehicles.
9.2Moneys standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held.
9.3Each party hereby foregoes any claims they may have to any superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation or insurance stand shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other.
9.4Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this Order.
10. That each of the parties shall indemnify and keep the other indemnified with respect to all liabilities, debts, taxes, loans, liens, charges, claims in contract, tort or breach of statutory duty, actions, suits, demands and or chooses in action owing by them either solely, jointly and or together with any third party and with respect to any such claim that may from time to time be brought by one of the parties against the other relating to matters prior to the date of these Orders.
11. The Husband and the Wife shall do all such things and sign all documents necessary to give effect to these Orders and in the event that either party refuses or neglects to comply with any part of these Orders, then the Registrar or Deputy Registrar of the Family Court of Australia Brisbane Registry is hereby appointed to execute all deeds and documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to these Orders, and the party in default shall pay all reasonable costs incurred by the other party for the purposes of enforcing this Order.
12. It shall be sufficient authority for the Registrar to act pursuant to Order 11 hereof to have before him or her an affidavit sworn by a party or by the solicitor for a party in which they depose that one of the parties has refused or neglected to comply with a provision of this Order, and detailing the provision, the acts undertaken to have him or her comply and his or her response (or lack of a response).
Notations
A. These Orders do not affect the Wife’s liability under the Child Support (Assessment) Act 1989, or under the costs orders of Kent J & the District Court Judge.
APPENDIX B
9. That within 14 days of this order, the Husband, Mr Newett (“the Husband”) pay the Wife, Ms Newett (“the Wife”) 50% of the full unencumbered real value of the marital property located at R Street Suburb JJ QLD (“the marital property”) in the fixed sum of $700,000 (as current realestate.com.au and other valuation sites = $1.2M to $1.4M) and in the alternative;
that within 14 days of this order, the ANZ Bank pay the Wife 50% of the full unencumbered
real value of the marital property located at R Street Suburb JJ QLD in the fixed sum of $700,000.10. That within 14 days of this order, the Husband pay the Wife 60% of the full gross value of the Husband’s Superannuation account up to the date of this order, or the fixed sum of $100,000; whichever is higher.
11. That within 14 days of this order, the Husband pay the Wife the value of her Motor Vehicle 1 as at the time the Husband took unlawful possession of her vehicle on 5 February 2018 in the fixed sum of $25,500.
12. That within 14 days of this order, the Husband pay the Wife the full value, including interest, of all business taxation gains made by the Husband due to his retention of her vehicle in the fixed sum of $30,000 as defined in the VV Pty Ltd Trial Balance.
13. That within 14 days of this order, the Husband pay the Wife the full cost of her rental costs of a replacement vehicle from 6 March 2020 to date in the fixed sum of $20,000;
and in the alternative;
that the Family Court of Australia pay the Wife the full cost of her rental costs of a replacement vehicle from 6 March 2020 to date in the fixed sum of $20,000.14. That within 14 days of this order, the Husband pay the Wife the full cost of property Security Measures in the fixed sum of $10,000;
15. That order 1 made 2 October 2019 in the Federal Circuit Court of Australia by Judge Jarrett remain in force until the full determination and settlement of Final orders in a newly listed Property trial that is listed subsequent to full determination of Final orders on Family Violence and Parenting matters.
16. That within 3 days of this order, pursuant to order 1 made 2 October 2019 in the Federal Circuit Court of Australia the registered Caveat number … over the real marital property located at R Street, Suburb JJ QLD be restored to its in force status under its original terms at the full cost of the Husband.
17. That within 3 days of this order and pursuant to order 14 above, the Husband is to file and serve an affidavit on the other parties notifying and providing copy of the restored Caveat to them.
18. That the ANZ Bank and VV Pty Ltd be added as party to the BRC2179 Newett v Newett matter, and in the alternative; that the Applicant be ordered to pay the full arrears and fees of the marital property R Street Suburb JJ QLD.
19. That upon addition of ANZ Bank to the case;
a.the ANZ Bank be injuncted and restrained from sale of the marital property pursuant to order 1 made 2 October 2019 in the Federal Circuit Court of Australia by Judge Jarrett until the full determination and settlement of Final orders in a newly listed Property trial.
b.the ANZ Bank be injuncted and restrained from sale of the marital property to the mortgagee, Mr Newett or any related person, associate or entity, pursuant to order 1 made 2 October 2019 in the Federal Circuit Court of Australia by Judge Jarrett until the full determination and settlement of Final orders in a newly listed Property trial.
c.the ANZ Bank be injuncted from taking any further action in relation to the marital property located at R Street, Suburb JJ QLD until the delivery of written Final Property orders to the parties following full settlement of Property matters, including any further Appeal or Application to the Court.
d.within 14 days of order, the ANZ Bank is to return the marital property located at R Street, Suburb JJ QLD to its original state prior to the 7 April 2021 unlawful access to the property on behalf of the ANZ Bank, and in particular;
i.Return and refit any and all lock sets/components removed or replaced in relation to the said marital property, and
ii.Return and restore to proper working order any and all property in the form of goods and chattels in relation to the said marital property, and
iii.Repair any damage caused as the result of the 7 April 2021 unlawful entry to the said marital property.
e.that the ANZ Bank pay the full cost of restoration to pre 7 April 2021 conditions of the said marital property.
20. That the Wife maintain and have full and sole unencumbered residential rights to the marital property until the delivery of written Final Property orders to the parties following full settlement of Property matters, including further Appeals or Application to the Court.
21. That the Husband pay the full cost of maintaining the services and maintenance of the marital property until the delivery of written Final Property orders to the parties following full settlement of Property matters, including further Appeals or Application to the Court.
Financial Administrative Orders
22. That Forensic Accounting be undertaken on the marital financial pool.
23. That the Husband pay any and all costs of Forensic Accounting within 7 days of invoice from the forensic accountant.
24. That the Wife select the forensic accountant.
25. That the Wife set out the scope of works for the forensic accountant.
26. That the forensic accountant be granted leave to issue unlimited subpoenas in relation to forensic accounting of the marital pool in the BRC2179/2018 matter.
27. That the broader Family Estate of Mr Newett be reviewed as part of the Forensic Accounting exercise.
Testamentary Matters
28. That in lieu of the Wife’s investment in the Joint Property development that remains owing by the Husband, as disclosed in prior Financial Statements and Submissions:
a.That 25% of the current value of the entire Husband’s Family Estate be paid to the Wife within 14 days of Final Order.
And in the alternative,
b.If at the time of death of either parent of Mr Newett, any monies remaining unpaid or partially unpaid, the remaining value must be paid to the Wife first;
inclusive of interest calculated daily at a rate of 10% per annum.
c.The Wife shall hold a mortgage/lien/caveat over any property owned by Ms AM, Ms AO and their related companies/trusts; and may force the sale of property in lieu of monies owed during the Probate process in the event of death of the relevant property owner.
Current Partner of the Applicant
29. That the financial status of the Current Partner of the Applicant, Ms AN, is fully disclosed such that future needs may be properly calculated.
30. That the Current Partner of the Applicant, Ms AN, be required to pay back to the business and marital pool all monies invested in her phone plans, entertainment, and other such expenses.
VV Pty Ltd Business
31. That within 14 days of this order, the Husband pay the Wife, 50% of the total gross earnings of the VV Pty Ltd business, from commencement of the business until the delivery of Final Written Orders, including 10% per annum compound interest calculated daily.
Child Maintenance Payments
32. That within 14 days of this order, the Husband pay the Wife, $17,000 in refund for the Child Maintenance provided by the Wife, plus 10% interest per annum calculated daily, where the Children were supposed to live with the Mother over the stated period of time for which maintenance was provided to the Husband.
33. That within 14 days of this order, the Husband pay the Wife, $68,000 in payment for the Child Maintenance owed (calculated equivalent to the difference in earnings) plus 10% interest per annum calculated daily, where the Children were supposed to live with the Mother over the stated period of time for which maintenance was provided to the Husband.
34. That the Husband be required to pay an amount no less than $2,000 per week to the Wife in combined Spousal and Child Maintenance, until the youngest child turns 18.
Costs
35. That the Husband pay the full costs of these proceedings, including prior Appeals and Cost Orders incurred by all Parties to the Case.
Even Distribution of Joint Debts
36. That the Husband pay the outstanding balance on the Lease Vehicle (Motor Vehicle 2).
37. That the Wife pay the outstanding balance on the two marital credit cards.
Garnish Orders
38. That within 14 days of this order, should the Husband fail to pay the Wife all monies due pertaining to the Orders, a garnish Order is to take effect over the Applicant and any and all Companies, Trusts and Assets to which he has control, shareholding or vested interest, and/or any account from which any Third Party provides any fringe benefit to the Applicant.
Registered Debt
39. That within 14 days of this order, should the Husband fail to pay the Wife all monies due pertaining to the Orders, a Debt shall be registered against the Husband with appropriate Credit Reporting Authorities, to the benefit of the Wife.
Adjustments
40. Adjustment for Substantial Ongoing Family Violence (Kennon v Kennon): I seek a property and superannuation positive adjustment of +20% in relation to the experience of ongoing serious family violence and long-term coercive control.
41. Adjustment for Parenting Contribution: I seek a property and superannuation +10% positive adjustment for ‘overfunctioning’ in the relationship in terms of diligently and proactively parenting the three children intensively from 2011 to 2019 including the raising of a newborn while working 60 hours per week full time in employment for 1.5 years.
42. Adjustment for Loss of Parenting based on Fraud: I seek a property and superannuation +10% positive adjustment for loss of Parenting role and Parental Relationship for 2.5 years.
43. Adjustment for Substantial Long term and Ongoing Fraud and Criminal Behaviours resulting in loss of Parenting years and serious negative Financial impacts: I seek a property and superannuation positive adjustment of +20% in relation to the experience of fraud and corruption matters, and for having been ‘framed’ as mentally ill, then having the Children taken from me without true cause.
2