NORRIS & DENIS (No.3)

FEDERAL CIRCUIT COURT OF AUSTRALIA

NORRIS & DENIS (No.3)

[2020] FCCA 1374

Catchwords:
FAMILY LAW – Property – de facto alteration of property interests – undefended hearing – balance sheet issue – assessment of contribution and future needs – just and equitable order – implementation problems reasonably anticipated.

Legislation:

Family Law Act 1975 (Cth), ss.90SM, 90SF, 102NA, 106A.

Federal Circuit Court Rules 2001 (Cth)

Trustee Act 1925 (NSW)

Cases cited:

Bevan & Bevan [2013] FamCAFC 116

NHC & RCH [2004] FamCA 633

Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395
Kowaliw & Kowaliw (1981) FLC 91-092

Stanford & Stanford [2012] HCA 52

Vass & Vass [2015] FamCAFC 51

Weir & Weir (1993) FLC 92-338

Applicant:

MS NORRIS

Respondent:

MR DENIS

File Number:

WOC 376 of 2017

Judgment of:

Judge Altobelli

Hearing date:

25 May 2020

Date of Last Submission:

25 May 2020

Delivered at:

Wollongong

Delivered on:

16 June 2020

REPRESENTATION

Solicitors for the Applicant:

DGB Lawyers

The Respondent is self-represented and made no appearance at the Hearing.

ORDERS

Property

Within 14 days of the date of these Orders, the Respondent shall pay to the Applicant the sum of $3,597.40.
In the event the Respondent fails to comply with Order 1 hereof, the following shall apply:
(a)Within 21 days of the date of these Orders, the Respondent shall vacate the property situate at and known as H Street, Suburb J, folio identifier 4172/804877 (“the H Street, Suburb J property”).
(b)After compliance with Order 2(a) hereof, the Respondent shall not enter upon or loiter within a 100 metre radius of the H Street, Suburb J property.
(c)The Applicant shall forthwith be appointed as Trustee (“Trustee”) for the sale of the H Street, Suburb J property.
(d)The Respondent shall further be restrained from entering, attempting to enter or frequenting any place which the Trustee is attending for the purpose of exercising her role as Trustee for the sale of the H Street, Suburb J property.
(e)The Trustee shall forthwith do all things and sign all documents necessary to cause the H Street, Suburb J property to be sold at a price to be determined by her on the advice of the appointed real estate agent, at the earliest possible date.
(f)DGB Lawyers shall be appointed as solicitors on behalf of the Trustee as vendor of the H Street, Suburb J property.
(g)The Trustee is empowered to sign all documents necessary to give effect to the Orders herein solely and without first obtaining or attempting to obtain the consent or signature of the Respondent.
(h)The Trustee may subject to these Orders in the exercise of her powers, do all such acts she may be authorised or empowered to do as a Trustee pursuant to the Trustee Act 1925 (NSW).
(i)Following the sale of the H Street, Suburb J property, the Trustee shall do all acts and things and sign all documents necessary to direct that the net proceeds from the sale of the H Street, Suburb J property be applied as follows:
(i)Payment of all agent’s commission, advertising expenses and legal expenses of the sale;
(ii)Payment of all outstanding council and water rates;
(iii)Payment of any other costs associated with the sale (including, but not limited to, maintenance, repairs, cleaning or removal of items); and
(iv)Payment of the net balance to be divided as follows:
(A)$3,597.40 plus interest in accordance with the Family Law Act 1975, its Rules and Regulations, to the Applicant.
(B)Balance to the Respondent.
(j)The Applicant shall be at liberty to retain and/or dispose of all furniture, effects and possessions which remain in the H Street, Suburb J property after the Respondent has vacated the H Street, Suburb J property at the Applicant’s discretion.

Shares

Within 14 days of the date of the making of these Orders the parties shall do all acts and things to cause their jointly held Shares X to be transferred to the Applicant.

Self Managed Superannuation Fund

Within 14 days of the date of the making of these Orders the parties shall forthwith do all acts and things necessary to wind up their Self Managed Superannuation Fund and shall equally bear the costs of such winding up and any balance then remaining shall be paid to the Respondent.

Other

Within 14 days of the date of the making of these Orders the parties shall do all acts and things necessary to close their joint Bank K Cash Management account ...78 and to pay the whole of the proceeds of such account to the Applicant.
Unless otherwise expressly stated in these Orders each party shall be liable for the payment of any debt incurred in their sole name, or jointly with any other person or encumbering any property retained by the party in accordance with these Orders and shall indemnify and keep indemnified the other party in relation thereto.
From the date of these Orders and subject to the above Orders, the Applicant and the Respondent shall each respectively retain all interest in and entitlement to:
(a)All personal property now in his/her respective possession or control.
(b)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in her/his sole name respectively,
(c)All interests in life insurance policies and superannuation funds standing in her/his sole name respectively.
Each party shall do all acts and things necessary to give all consents and execute all documents and writings to give effect to these Orders in the time periods described.
Pursuant to section 106A of the Family Law Act 1975 (Cth) in the event either party neglecting of refusing to sign all or any necessary documents to give effect to these Orders either party is at liberty to apply to the Court to seek the appointment of a Registrar of the Court to execute the document in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the said document.
Any application for costs be provided by way of written submissions and evidence in support as follows:
(a)The Applicant file and serve within 21 days short written submissions; and
(b)The Respondent within a further 21 days file and serve short written submissions;
(c)The Applicant file and serve within a further 7 days short written submissions in reply.
The matter be adjourned to a date to be fixed in relation to the determination of the issue of costs.

IT IS NOTED that publication of this judgment under the pseudonym Norris & Denis (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 376 of 2017

MS NORRIS

Applicant

And

MR DENIS

Respondent

REASONS FOR JUDGMENT

Introduction

These Reasons for Judgment explain the Orders that the Court has made in a de facto application for alteration of property interests.

Background

Unless otherwise indicated, these are findings of the Court. The Applicant and Respondent both live in the Region L of New South Wales. The Applicant is 55 years old and describes herself as retired. The Respondent is 66 years old and describes himself as unemployed. For present purposes, they will be described as the Applicant de facto Wife and Respondent de facto Husband, abbreviated to ‘Wife’ and ‘Husband’ respectively. Their relationship commenced in 1991. The relationship ended in March 2015, according to the Husband, and April 2015, according to the Wife. There were no children to the relationship.
It is common ground between the parties that at the time their relationship commenced, the Husband had a block of land in H Street, Suburb J, an excavator and a Truck M. This was the equipment in a business that the Husband operated at the time in construction. The Wife was employed with Employer N as a professional. She had superannuation with the company fund, as well as an entitlement to shares in an employee share plan.
After cohabitation, they moved into rented accommodation. They were both working. The Wife also appears to have received dividends from her Employer N shares. As there was a liability attaching to the shares, the dividends went to pay off that liability.
In about 1995, they commenced building a house on the land at H Street, Suburb J. It seems common ground that the Husband at least commenced the building work himself, but the parties later had to engage a builder, and then the services of that builder were terminated, with the Husband again resuming the construction work. They managed to move into what is now the former matrimonial home, even though it had not been completed.
In 2001, the Wife accepted a redundancy offer from Employer N and received $80,000, of which $40,000 was used to pay out the balance owing on the 11,174 employer shares that she owned. The Wife contends, and the evidence appears to confirm, that from this time onwards, she received about $10,000 annually by way of share dividends.
In 2012, the Husband received a compensation payment of $52,533.66 arising out of a shoulder injury suffered in the course of a motor vehicle accident in 2010.
In 2015, the Husband received the first tranche of an inheritance from the estate of his late mother in the sum of $186,074.51. The second tranche, $42,507.93, was received later in 2015.
From either shortly before, at the time of, or shortly after the date of separation, the Wife transferred out of accounts in the Husband’s name substantial sums of money which were then paid into her own accounts. The Husband says that the Wife took at least $130,500 from his Bank O savings account between February 2015 and November 2016. The Wife acknowledges in her own Affidavit that, in fact, she took $150,000 between March 2015 and November 2016. Even though the Husband did not participate in the proceedings, it is clear from his evidence that he asks the Court to add back the money in question. An add back of this money is not part of the Wife’s case, and one of the issues in this case will be to establish whether there should be an add back, and if so, in what amount. It will be necessary to carefully consider the Wife’s evidence about how she spent the money in question.
After separation, the Husband alleges that the Wife sold over $30,000 of Employer N shares. Indeed, the Wife agrees that between 7 August 2017 and 14 February 2020, she sold her Employer N shares for a total of $113,625. The question for the Court is whether this money should also be added back and, if so, to what extent.
The Wife asserts, and the corroborating documents seem to confirm, that between 1 July 2019 and 29 October 2019, the Husband withdrew the entirety of his superannuation, which was then held with Super Fund P pension service account, and totalled $740,069.74. The Wife contends that this amount should be added back. The Husband has provided no disclosure about this transaction, or these transactions. The Court will need to decide whether this amount should be added back.
The Wife contends that in 2019, the Husband also made substantial cash withdrawals from his bank accounts with the Bank O and Bank Q, totalling over $700,000. What is not known, and what needs to be established if possible from the documentary evidence, is whether some or all of this money comprised part of the superannuation funds held with Super Fund P referred to above. As will be seen from the Wife’s contended balance sheet, she only seeks an add back in relation to the superannuation held with Super Fund P, and not the cash withdrawals from the various accounts, thus leading the Court to conclude that, more likely than not, it would be duplication if both amounts were added back.
The main issues for the Court to decide in this case involve establishing what is the pool of assets, assessing contribution and future needs, and making a just and equitable order for alteration of property interests. There are some ancillary but important issues about the litigation history and the procedure adopted at the final, as it turns out undefended, Hearing. The Wife also makes an application for indemnity costs.

The competing proposals

The final orders sought by the Wife are set out in her Amended Application filed 15 May 2020. She seeks an order that the Husband pay to her $439,286 within 28 days, failing which the former family home at H Street, Suburb J be sold and she receive 68% of the net sale proceeds. The jointly owned X Shares would be transferred to the Wife. The Bank K cash management account ending with the numbers -...78 would be paid to the Wife. The Husband would pay the Wife’s costs on an indemnity basis, and as an additional amount on top of the Wife’s entitlement under the property settlement. In the Wife’s case, it was contended that this would result in an approximate 55:45 split in her favour. In submissions, it was explained that this was an adjustment based on contribution only, as the Wife’s case is that there was no adjustment in relation to future needs.
The Husband’s proposal, insofar as it can be ascertained given the undefended hearing, is set out in his Response filed 11 September 2017. He proposes that the Wife pay him $210,000, and that the X Shares and their interest in the joint Bank K cash management account also be paid to him.

The evidence before the Court

In the Wife’s case, she relied on the following documents:
a)Amended Initiating Application filed 15 May 2020;
b)Affidavit of Ms Norris filed 15 May 2020;
c)Affidavit of Ms R filed 7 February 2020
d)Financial Statement of Ms Norris filed 15 May 2020
e)Case outline document filed 20 May 2020; and
f)Written submissions in support of the application for costs dated 23 May 2020 and received 25 May 2020.
In the Husband’s case, the Court considered the following documents:
a)Response to Initiating Application filed 11 September 2017;
b)Affidavit of Mr Denis handed up in Court on 13 February 2020;
c)Affidavit of Mr Denis filed 11 February 2020;
d)Affidavit of Mr Denis filed 14 August 2019;
e)Affidavit of Mr Denis affirmed and filed 11 September 2017; and
f)Financial Statement of Mr Denis filed 11 September 2017.
The following material was tendered as evidence on 25 May 2020:
a)Bundle of emails received by the Court from the Respondent (various dates);
b)Tender Bundle prepared on behalf of the Applicant Wife;
c)Detailed matter chronology found at page 10 of the Wife’s case outline document filed 20 May 2020;
d)Procedural chronology found at page 29 of the Wife’s case outline document filed 20 May 2020;
e)Bundle of correspondence evidencing service of the Applicant’s documents on the Respondent;
f)Documents produced pursuant to subpoena on Suburb S Sports Club;
g)Documents produced pursuant to subpoena on Suburb T Sports Club; and
h)Documents produced pursuant to subpoena on Town U Sports Club.
Exhibit A3 is a detailed chronology prepared on behalf of the Wife which the Court accepted as an aide memoir. The detailed chronology is very useful to the Court and, in most respects, reflects the evidence before the Court. It is reproduced in full in the First Schedule to these Reasons for Judgment.
Exhibit A4 is a detailed procedural chronology that was prepared on behalf of the Wife, and which was again accepted by the Court as an aide memoir. It is reproduced in full in the Second Schedule to these Reasons for Judgment. The procedural chronology corresponds to the Court’s own records of the lengthy litigation history in this matter.

The applicable law

This is an application under s.90SM of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’) which relevantly provides:
Alteration of property interests
(1) In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:
(a) in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them--altering the interests of the parties to the de facto relationship in the property; or
(b) in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the de facto relationship--altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c) an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring:
(i) either or both of the parties to the de facto relationship; or
(ii) the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the de facto relationship or a child of the de facto relationship, such settlement or transfer of property as the court determines.
Note 1:       The geographical requirement in section 90SK must be satisfied.
Note 2:      The court must be satisfied of at least one of the matters in section 90SB.
Note 3:      For child of a de facto relationship , see section 90RB.
(2) If a party to the de facto relationship dies after the breakdown of the de facto relationship, an order made under subsection (1) in property settlement proceedings may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
(3) The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(c) the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and
(e) the matters referred to in subsection 90SF(3) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
Section 90SM(4) incorporates the provisions contained in s90SF(3) of the Act, which states:
(3) The matters to be so taken into account are:
(a) the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship ); and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(i) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 90SM in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(o) the terms of any order or declaration made, or proposed to be made, under this Part in relation to:
(i) a party to the subject de facto relationship (in relation to another de facto relationship); or
(ii) a person who is a party to another de facto relationship with a party to the subject de facto relationship; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(p) the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:
(i) a party to the subject de facto relationship; or
(ii) a person who is a party to a marriage with a party to the subject de facto relationship; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(q) any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
(r) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(s) the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and
(t) the terms of any financial agreement that is binding on a party to the subject de facto relationship.

In Bevan & Bevan [2013] FamCAFC 116 the Full Court of the Family Court of Australia considered the High Court’s decision in Stanford & Stanford [2012] HCA 52 which provided guidance on how s.90SM was to be interpreted and implemented. Bevan endorsed the continuing application of the four-step approach articulated by the Full Court in Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395, but on the basis that it is a shorthand distillation of the words of s.90SM, as opposed to being a statutory edict. The four steps articulated in Hickey at paragraph 39 are:
(1)Identify and value the property, liabilities and financial resources of the parties; and
(2)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property; and
(3)Identify and assess the other facts relevant under s.90SM(4)(d)-(g) including s.90SF(3) and determine the adjustment (if any) to be made to the contribution entitlements at step two;
(4)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.
The decisions in Stanford and Bevan also emphasise the importance of making findings that any order is just and equitable for the purposes of s.90SM(4), independent of the s.90SF(3) process. In most cases, such as the present one, it makes no difference to the outcome of the alteration of property interests exercise. Even if the just and equitable consideration were treated as a threshold issue in this case the parties have, by their actions (separation, and re-ordering of their financial lives since then), and claims (divergent claims about their property under s.90SM of the Act), indicated that they themselves consider it just and equitable that some order be made under s.90SM adjusting their property interests as presently held. It is clearly just and equitable in this case to make an order.
Both decisions also emphasise the importance of identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. This is not inconsistent with step one in Hickey.
A problem that commonly arises, and indeed does arise in this case, relates to property that once existed but no longer does. This disposed of property may still be significant, however. As the Full Court said in Bevan, such disposals must be dealt with carefully. In practical terms this means carefully assessing the evidence about the disposal, attempting to quantify it if this is at all possible, and then assessing its weight whilst neither placing too much, or too little, weight on it. It would seem that notionally adding back such property may still be appropriate in some cases. In Vass & Vass [2015] FamCAFC 51, the Full Court said at [138]:
There is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties. We reject any suggestion that the decision of Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545 – or, more particularly, the decision of the High Court in Stanford & Stanford [2012] HCA 52; (2012) 247 CLR 108 – is authority for any necessary contrary solution.
As the Full Court noted in NHC & RCH [2004] FamCA 633 at [24] and indeed in many other cases, there is no basis for adding back moneys that existed at separation but which have been spent on reasonably incurred necessary living expenses.
A significant issue in this matter was the alleged non-disclosure of the Husband. Attempting to deal with non-disclosure often puts the other spouse to considerable difficulty with regards to investigating their financial affairs. The Full Court in Weir (1993) FLC 92-338 at 79, 593–4 made the following statement regarding the duty to disclose and the Court’s powers where non-disclosure has been found:
This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black & Kellner (1992) FLC 92-287, that it is the duty of a party involved in property proceedings in this jurisdiction to make a full disclosure of their financial affairs. See also Giunti & Giunti (1986) FLC 91-759, and Mezzacappa & Mezzacappa (1987) 11 Fam LR 957; (1987) FLC 91-853. It is clear enough from his Honour's findings in the present case that the husband had not done so and had in fact pocketed the proceeds of a substantial number of cash sales. It is obvious that in most cases of this nature it is difficult enough for the other party to establish that fact let alone establish the quantum of what has been taken.
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature…
We appreciate that this is something of a broad brush approach, but, as we have said, where there is clear evidence of non-disclosure as there was here, the Court should not be unduly cautious about making findings in favour of the other party. It has been said by one commentator (O'Ryan and Broadfoot, 5th National Family Law Conference Handbook, p 249) the failure to disclose undermines the whole process of adjudication of proceedings for a settlement of property in that the court is unable to identify the property of the parties, to properly assess contribution, or to properly assess s 75(2) factors.
The Wife raised what is, in effect, a waste argument. A succinct statement of the law in this regard is the statement by Baker J in Kowaliw & Kowaliw (1981) FLC 91-092 at 76, 644:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.

The procedural history

The Applicant’s procedural chronology became exhibit A4. As an aide-mémoire it is a detailed and accurate depiction of the history of these proceedings. The proceedings commenced in April 2017 and was first listed for a 2 day Final Hearing on 17 January 2019. This Hearing was adjourned at the Husband’s request so that he could obtain legal representation. The matter was then listed for a second time, for 2 days on 12 - 13 September 2019. The Hearing was once again adjourned, but this time on the Husband’s application based on the provisions of section 102NA of the Family Law Act 1975 (Cth). There is no doubt that that section applies to these proceedings because of a current AVO in place. The matter was listed for a 3 day Hearing commencing on 17 February 2020. The Husband had the benefit of a section 102NA order, in terms of legal representation. Once again the Husband applied for, and was granted, an adjournment on the basis of his health, as well as representation issues. The matter was then listed for a 3 day Hearing commencing 25 May 2020. It will be noted that this is the fourth time the Court has set aside hearing time to deal with this matter.
Between 13 February 2020 when the February Hearing was adjourned at the Husband’s request, and 25 May 2020, the Husband did not make a formal application for an adjournment. As it transpires, there was extensive correspondence between the Husband and Chambers but, quite properly, that correspondence was not drawn to the attention of the Judge hearing the matter. The Court’s protocol about correspondence with Chambers was made known to both parties and particularly to the Husband many times. An impression formed from the correspondence, gleaned after the correspondence came into evidence, is that the Husband persisted in writing to the Court and not copying in the Wife’s solicitors. Indeed, an impression that could be formed is that the Husband thought he could conduct this litigation through direct correspondence with the Judge. In any event, exhibit A1 became a bundle of correspondence from the Husband to Chambers in the period 22 - 24 May 2020. The Court’s impression is that this is not all of the correspondence from the Husband since 13 February 2020, but it was the correspondence immediately before the Hearing.
Exhibit A1 consists of a series of emails from 2:54 pm on 22 May 2020 to 11:30 pm on 24 May 2020. The Court will do the best it can to distil the essence of this correspondence and seek to identify what the Husband was asking for. He seems to be asserting that he was medically unfit to attend Court. He also demands that the Judge sitting in the case recuse himself for bias against the Husband. He also makes allegations about corruption. The tone of some of the emails is abusive and threatening, with the abuse and threats directed to the Judge hearing the matter, as well as, it would seem, to the Wife’s Solicitor.
The response from Chambers includes, for example, information provided to the Husband at 2:47 pm on Friday 22 May 2020, that if he wished to make an adjournment application he should attend the Hearing so that the application could be considered. As the Hearing was conducted during the COVID-19 pandemic, the Hearing took place by way of Microsoft Teams, and the Husband was provided with the link to join the Teams meeting.
No formal application was made for an adjournment or for the Judge hearing the matter to recuse himself. This Court would clearly consider an oral application, just as it did from the Husband on previous occasions. This Court will not, however, conduct litigation by email correspondence. As for the assertion that the Husband was medically unfit to attend Court, there is no evidence in support of this. There was ample evidence about the Husband’s health that is discussed in these Reasons, but none that explains why he could not attend a Hearing by videoconference or even by telephone. The most recent evidence about the Husband’s health indicates that he did attend hospital this year in relation to an eye problem. He was admitted and discharged on the same day. That hospital admission does not provide any basis for an adjournment application for a Hearing commencing 25 May 2020.
As for the application for recusal, such as it was, it is unsupported by any evidence, and the Court is at loss to understand what decisions adverse to the Husband were made that might warrant the application, in any event. As the Husband did not seek an adjournment of the Hearing commencing 25 May 2020, there was no adverse decision against him. Each of the previous Hearings were adjourned at the Husband’s request. The most recent adverse decision against the Husband was on 17 December 2019 when, on the Wife’s application, the Court made a series of restraining orders against the Husband, preventing further dealings with the assets identified in the Order made that day. The transcript of the short Hearing that occurred on 17 December 2019 includes an acknowledgement by the Husband to the Court that a substantial sum of money that he had controlled had gone. On page 4, lines 11 through to 32, contains the relevant admissions:

Judge Altobelli:

Well, where has the money gone, Mr Denis?

Mr Denis:

Same place what Ms Norris put the money she stole.

Judge Altobelli:

And where’s that?

Mr Denis:

I don’t know. You should know. I don’t know.

Judge Altobelli:

Well, it was your money, so where has it gone?

Mr Denis:

She stole it. I don’t know what she done with it.

Judge Altobelli:

Okay. All right.

Mr Denis:

It’s all right for her to steal it and for it to fly up in thin air, well, it’s good enough for me.

Judge Altobelli:

Yes. Okay. So are you saying that even if I made the orders that they’re asking me to make it wouldn’t make any difference, because it has all gone? Is that right?

Mr Denis:

Yes, that’s right.

In short, there was neither an application for an adjournment, nor for recusal and, in any event, there was no discernible basis for granting either application. There was no basis for the Court not to proceed with the Hearing commencing 25 May 2020.
The Court must record its concerns about the tone of the correspondence contained in exhibit A1. The anger that is manifest in this correspondence is disconcerting. The underlying attitude of the Husband seems to be that this litigation should be conducted to his timetable, and no one else’s. In framing the Orders for alteration of property interests that the Court makes, the Court will need to take into account the Husband’s anger, and possible defiance of Court Orders. As will be seen, the Husband has not complied with many Orders and procedural directions, particularly as regards financial disclosure.
The theme of the Husband’s anger and defiance is further evidenced from the first annexure bundle to the Wife’s trial Affidavit which contains a series of emails from the Husband to his Wife’s lawyer, most of which are disrespectful and some of which are abusive and threatening.

The Balance Sheet

The balance sheet contended on behalf of the Applicant is reproduced below. The only alteration the Court has made is to number each row in this balance sheet, for ease of reference.

Ownership	Item	Value
ASSETS
1.	T	H Street, Suburb J	$650,000.00
2.	J	Bank K account ...78	$70,403.00
3.	J	Household contents	E $5,000.00
4.	A	Bank Q account, ...01	$10,166.00
5.	A	Bank Q account, ...15	NIL
6.	T	Bank O account, ...92	$3.00
7.	T	Bank O account, ...19	$6,005.00
8.	T	Bank O account, ...30	$608.00
9.	T	Bank O account, ...43	$5,008.00
10.	T	Bank Q account, ...53	$4,866.00
11.	T	Shares V 551 @ 16.99	$9,361.00
12.	A	Shares W 137 @ 1.42	$194.00
13.	A	Shares V 551 @ 16.99	$9,361.00
14.	J	Shares X 615 @ 16.45	$10,116.00
15.	A	Employer N Shares 7775 @ 30.69	$238,614.00
16.	A	Shares Z 11,174 @ 1.89	$21,118.00
17.	A	Motor Vehicle 1	$8,600.00
18.	T	Motor Vehicle 2	$15,350.00
19.	T	Motorcycle AA	$2,538.00
20.	T	Motorcycle BB	$2,230.00
21.	T	Motor Vehicle 3	$10,850.00
22.	T	Motorcycle CC (x2)	NK
23.	T	Motorcycle DD	$2,725.00
24.	T	Motorcycle EE	NK
25.	T	Motorcycle FF	$7,678.00
26.	J	SMSF	NIL
27.	T	Bank K Cash Management Account ...97	$255.00
28.	T	Super Fund P ...88 (cash account)	NIL
29.	T	Superannuation - Super Fund P ...88 (term deposit)	NIL
30.	T	Superannuation – Super Fund P ...88 (term deposit)	NIL
31.	A	Super Fund P ...87 (cash account)	$27,327.00
32.	A	Super Fund P ...87 (managed investments)	$246,271.00
33.	A	Super Fund P ...87 (ANZ term and Bank K term deposit)	$200,000.00
34.	TOTAL	$1,564,647.00
Liabilities
35.	A	Amount owed by the Applicant to her father (post separation debt)	($10,000.00)
Addbacks
36.	T	Amount withdrawn by The Respondent	$748,000.00
37.	VALUE OF NET ASSET POOL	$2,302,647.00 plus NK

A number of issues arise in relation to the balance sheet.
At item 1, the Court accepts that the value of the former family home is $650,000. The Husband contended for a much lower value - $450,000. This was based, however, on a valuation solicited by the Husband himself, based on an inspection on 1 August 2019, and filed and served outside of the timeframe permitted to him in the order made 31 January 2019. The Court prefers the updated report of the Single Joint Expert which is part of the Affidavit of Ms R, Certified Practising Valuer, made 7 February 2020. The Husband is in occupation of the home. The Report does have its limitations. It was conducted before the COVID-19 pandemic. No internal inspection of the improvements erected on the property had been completed. In other words, the valuation was based on a kerbside inspection, even though the valuer had inspected the property internally in November 2018. Nonetheless, the valuation was completed on the basis that the dwelling is in the same poor condition as previously inspected in 2018. By way of background, the valuer had been originally engaged as a Single Joint Expert and thus the Husband had allowed her to inspect the property in November 2018. The impression formed from the evidence is that he later became unhappy with the valuation and would not permit a further inspection for the purposes of an updated valuation despite multiple requests to facilitate this. For example at page 145 of the annexures to the Wife’s trial Affidavit is an email dated 11 February 2020 to the Wife’s Solicitors which makes clear he was not going to cooperate.
The valuation emphasises that the dwelling is still in a poor condition and requires repairs and maintenance that had been detailed in the original valuation report dated 13 November 2018. The items in question included: installation of plasterboard and floor coverings to the lower level, completion of lower-level bathroom, completion of electrical work, completion of external render, installation of retaining walls, installation of fencing, landscaping, driveway, painting throughout, completion of balcony, replacement of broken ceiling fans and lights, replacement of damaged doors, walls and windowsills, installation of down pipes and installing new compliant stairs to garage.
The Court can only do the best it can in in circumstances where the Husband chose not to participate in the Final Hearing, and, as can be seen from the discussion of the procedural history of the matter, was obstructive and uncooperative. The Court finds the value of the home to be $650,000.
At item 3 of the balance sheet, the Wife contends that household contents be valued at $5,000. It was conceded that there was no valuation as such. In the circumstances, the Court will accept as an admission from the Husband that the household contents have a value of $1,000, consistent with his Financial Statement of 11 September 2017.
Without going into each individual bank account, the source of the values attributed to the account are either in the Husband’s Financial Statement, aforesaid, or in the voluminous tender bundle that was filed in the Wife’s case.
At items 12, 13 and 14, the quantity of the shares is derived from the Husband’s Financial Statement.
At item 17, the Wife concedes that her motor vehicle has a value of $8,600, and thus the Court will accept this as an admission contrary to interest.
At item 18, the Husband’s Motor Vehicle 2, has the value found in the Husband’s Financial Statement. The same can be said in relation to item 20, the Husband’s Motorcycle BB. In relation to items 19, 21, 22, 23, 24 and 25, it is not possible to discern from the Wife’s evidence any proper rationale for the value she attaches to these items. As no concession, for relevant purposes, is made in the Husband’s evidence, it is not possible to attribute a value to these items, though the Court will accept (in circumstances where it can do nothing else) that the Husband owns these vehicles, but has not disclosed their value.

The values attributed to the various savings and superannuation type accounts are corroborated from the tender bundle.
Item 35 is an amount that the Wife contends she owes to her father as a debt. After the Wife was sworn in and confirmed her evidence, the Court asked a few questions to clarify her evidence, in order to assist it to make a just and equitable order in all the circumstances of the case. She explained that, in fact, the amount was not a debt, but a gift, and the Court will thus treat it as such. It was a post separation gift. There is no basis for adding it onto the balance sheet.
At item 36, the Wife contends an add back of amounts withdrawn by the Husband of $748,000. The fact of this missing money is, firstly, established by the documents contained in the Wife’s tender bundle. Secondly, the fact that the Husband withdrew it, and probably continues to control the said money, was apparent from an admission that the Husband made in open court in the lead up to the granting of the injunction against further dissipation of assets made on 10 December 2019. The Court is thus satisfied that the Husband withdrew the moneys in question and probably retains control of some or all of them. The Husband’s actions constituted a premature distribution of matrimonial assets, and thus the sum should be added back as notional property.
The Court now needs to determine whether there should be an add back of matrimonial funds that the Wife took at around the time of separation, and afterwards. It will be recalled that even on the Wife’s evidence, she withdrew $150,000 between 23 March 2015 and 21 November 2016. Moreover, she sold a total of 3849 of her Employer N shares between 7 August 2017 and 14 February 2020, yielding $113,625. This makes a total possible add back of $263,625. It is not possible, from the viewpoint of the Court, to make a just and equitable order altering the property interests of the parties in this case, without considering whether an add back of all, or part of this amount, should be made.
In the Wife’s evidence she contends that the primary purpose of withdrawing and applying these funds to herself was for day to day living expenses in the post-separation period. Some of these are detailed in her Affidavit. For example, at paragraph 168 of her trial Affidavit made 15 May 2020 she states:
From the $120,000.00 I have exhausted the following funds:-
a) $20,298.00 to purchase a Motor Vehicle 1;
b) approximately $17,000.00 on holidays (2015 I attended three (3) cruises and went on holidays to City GG);
c) payment of out of pocket legal costs and disbursements: $54,007.14;
d) new clothes, shoes and cosmetic procedures totalling approximately $6,000.00; and
e) after April 2015 I have continued to play the poker machines, initially after separation I played the poker machines more frequent, being every few days, however after approximately 2016 I estimate that I spend on average of $170.00 per week, being approximately $150.00 on poker machines and $20.00 on Keno tickets on average each week.
The Wife gives no separate explanation for the sale of her Employer N shares, but the inference is that the funds were likewise used for living expenses, or possibly expenses consistent with the matters deposed at paragraph 168 of her Affidavit.
This is a difficult issue, especially in the context of an undefended Hearing. It is clear from the Husband’s Affidavit filed 11 September 2017 that he complains about the Wife spending “on her social life, which included drinking and gambling” (paragraph 7). The theme is repeated at paragraph 18 and at paragraph 27.
The Wife was clearly aware of the Husband’s allegations about her gambling, and she deals with this in her Affidavit in a number of places. At paragraph 36, for example, she deposes that from around 2005 when she and the Husband attended clubs, she would play the poker machines with a friend whilst the Husband and his friend watched football. At paragraph 37 she deposes that in about 2006 she became friends with a small group of women who she met whilst playing cash bingo on Saturday. She would play the poker machines at the Suburb S Sporting Club each Saturday between 4:00pm and 5:00pm. At paragraph 168(e) above, she refers to playing poker machines.
Commencing from a detailed examination at paragraph 168 of the Wife’s Affidavit, she contends that she spent $20,298 out of the $120,000 she took from the Husband’s bank accounts, to purchase a Motor Vehicle 1. However, in paragraph 167 she discloses that a Motor Vehicle 4 was sold for $10,000. The context suggests it was a trade-in. In the circumstances, the Court cannot see a basis for the legitimate expenditure of $20,298 but accepts that $10,298 would be reasonable and appropriate expenditure on motor vehicle, which the Wife would have reasonably needed.
The Court cannot see how spending $17,000 on holidays in the form of three cruises and a City GG holiday in 2015 would constitute reasonable expenditure. This amount should be added back.
The legal costs and disbursements of $54,007.14 should also be added back.
In relation to 168(d) expenditure of $6,000 on new clothes, shoes and cosmetic procedures is not considered by this Court as reasonable expenditure.
The Court finds particularly problematic the Wife’s evidence at [168(e)] where she refers to her poker machine expenditure. The evidence about the nature and extent of the Wife’s gambling activities needs to be considered carefully. It needs to be emphasised, however, that the present focus is not whether there should be any add back in relation to gambling losses before separation. The present focus is on whether there should add backs in relation to funds that the Wife used in the post separation period, and which were not appropriately used for reasonable living expenses. Where the Court explores the evidence about the Wife’s gambling before separation, the purpose of this is to ascertain the nature and extent of the Wife’s gambling, and to see whether there is a consistency between this before and after separation.
The clearest snapshot of the nature and extent of the Wife’s gambling activities is found at page 66 of her tender bundle, which is just one page from her Bank Q bank statement. The Wife adduced this evidence to establish the moneys provided to her by her father. What this page of the Wife’s banking records establishes is the nature and extent of the Wife’s gambling habit. Between 1 May and 10 May 2017, well after the date of separation, and at a time when the Wife contends she was unemployed, she gambled $1,760. Most of this was with Sportsbet, which the Wife explained in evidence was betting on the outcome of horse races. The same statement indicates that on 7 April 2017, $10,095 was deposited into her account, $10,000 of which came from her father. By 10 May 2017, about a month later, $5,270 of this amount had been gambled. When the Wife was taken through this bank statement, she herself appeared surprised and suggested that she was having a “bad month”. The Wife’s only income at this time was, according to her, from her investments. It should be noted that at [170] of her trial Affidavit, she refers to the $10,000 from her father as having “being used to meet my general living expenses.” The evidence from the Wife’s only bank statement suggests something else.
There is evidence of the Wife’s historical gambling in documents produced on subpoena.
The documents produced by Suburb S Sports Club, for example, indicate that for the years 2014, 2015, and 2016, the Wife gambled in poker machines $401,668.84. Of course, the Court accepts, that this does not necessarily reflect the winnings, but only the Wife’s investment. Indeed, in the same bundle, and for records that appear to cover a longer period (2004 to 2017), the turnover is reported at $630,985.85, the wins at $579,197.32, and thus the net spend $51,788.53. The records indicated that the Wife spent 49,048 minutes at the poker machines over the relevant period, which is 817 hours. If this were the only venue at which the Wife gambled, having regard to the lengthy period of time, her activities could not be described as substantial.
Documents produced by Town U Sports Club relate to two days only, in 2018. On 14 April 2018, the Wife gambled $1,384.40, and on 3 May, $280. The total is $1,664.40, but, once again, the Court does not know how much she invested.
Documents produced by Town U Sports Club also cover quite a long period. Focusing on the post-separation period, in June 2015, the investment was $253.20; in July, $174.45; in September, $253.
What the Court knows for certain is that during the relationship and after separation, the Wife gambled through Sportsbet and the three clubs referred to above. At paragraph 168(e) she deposes to spending an average of $170 per week, being $150 on poker machines and $20 on Keno tickets. Her Bank Q statements for the period 3 April to 10 May indicates a much higher weekly gambling expenditure, indeed, almost $1,000 per week. In her evidence to the Court, she said, that when she was having a “bad time”, she would spend $250 per week on gambling, and on top of that would be drinks. There are clear inconsistencies in the Wife’s evidence, and the strong impression is formed that the Wife has not properly disclosed to the Court the nature and extent of her gambling activities in the post-separation period. The snapshot that is created by the Bank Q bank statement for what appears to be a five week period, between 3 April – 10 May 2017 indicates a substantially higher weekly expenditure. The Court doubts the Wife’s assertion that this higher expenditure reflects some particular emotional or other difficulty that she was having at the time, perhaps linked to the litigation with her Husband. During April/May 2017, the litigation was at a relatively early stage.
At all relevant times, the Applicant bore a duty of disclosure to the Court, no less than the duty of disclosure that the Respondent bore, in relation to their financial affairs. This includes gambling activities.
In the Wife’s Financial Statement, made 10 May 2020, she deposes of an income of $285 per week from dividends and interest, and an expenditure of $514 per week. This means the Applicant needs $26,000 per year by way of income to live on. In the nearly five years since the date of separation, she would have needed about $130,000 to live on, based on her own financial statement. If she was earning $250 per week by way of dividends and interest, on average over that period, her income would have been $65,000, and thus she would have needed another $65,000 to meet the income she deposes in her own Financial Statement to meet all of her expenditure. Even if the Court were to double that and assume that, in fact, she needed $130,000 over five years to have a reasonable standard of living, the Applicant makes no plausible explanation for the premature distribution of $150,000 withdrawn from bank accounts, and $113,625 from the sale proceeds of her Employer N shares. The Court will give the Wife the benefit of the doubt, even though it was her duty to properly disclose how these funds were spent to the Court, even in an undefended Hearing. None of the $150,000 withdrawn from the Husband’s accounts will be added back, but all of the sale proceeds of the Employer N shares will be added back. Thus, the balance sheet should have an additional addback of $113,625. The Wife’s failure to disclosure how these funds have been used in the post-separation period leads to an inference that the funds were used to support a gambling habit.
Accordingly, the balance sheet is found by the Court to be as follows:

Ownership	Item	Value
38.	ASSETS
1.	T	H Street, Suburb J	$650,000
2.	J	Bank K Cash Management account ...78	$70,403
3.	J	Household contents	$1,000
4.	A	Bank K account, ...01	$10,166
5.	A	Bank Q account, ...15	NIL
6.	T	Bank O account, ...92	$3
7.	T	Bank O account, ...19	$6,005
8.	T	Bank O account, ...30	$608
9.	T	Bank O account, ...43	$5,008
10.	T	Bank Q account, ...53	$4,866
11.	T	Shares V 551 @ 16.99	$9,361
12.	A	Shares W 137 @ 1.42	$194
13.	A	Shares V 551 @ 16.99	$9,361
14.	J	Shares X 615 @ 16.45	$10,116
15.	A	Employer N Shares 7775 @ 30.69	$238,614
16.	A	Shares Z 11,174 @ 1.89	$21,118
17.	A	Motor Vehicle 1	$8,600
18.	T	Motor Vehicle 2	$15,350
19.	T	Motorcycle FF	Not disclosed
20.	T	Motorcycle BB	$2,230
21.	T	Motor Vehicle 3	Not disclosed
22.	T	Motorcycles CC (x2)	Not disclosed
23.	T	Motorcycle DD	Not disclosed
24.	T	Motorcycle EE	Not disclosed
25.	T	Motorcycle FF	Not disclosed
26.	J	SMSF	NIL
27.	T	Bank K Cash Management Account ...97	$255
28.	T	Super Fund P Superannuation ...88 (cash account)	NIL
29.	T	Superannuation - Super Fund P ...88 (term deposit)	NIL
30.	T	Superannuation – Super Fund P ...88 (term deposit)	NIL
31.	A	Super Fund P ...87 (cash account)	$27,327
32.	A	Super Fund P ...87 (managed investments)	$246,271
33.	A	Super Fund P ...87 (ANZ term and Bank K term deposit)	$200,000
34.	TOTAL	$1,536,856
39.	Liabilities
35.	-	-	-
40.	Add backs
36.	T	Amount withdrawn by The Respondent	$748,000
37.	A	Sale proceeds of the Employer N shares	$113,625
38.	VALUE OF NET ASSET POOL	$2,398,481 plus not known or disclosed

Assessment of contribution

The Wife correctly submitted that this was a lengthy relationship spanning about 24 years, during which the parties accumulated a not-insignificant asset pool made up of real estate, shares and superannuation.
In the Wife’s case, there is acknowledgment that the Husband owned the unencumbered land on which the family home was later constructed. The property has been valued, but the observation is made that there is no evidence of the value of the vacant block of land as at the date of cohabitation. It is not clear to the Court why the valuer could not have been briefed to provide this evidence. Notwithstanding that, the valuer does place the present value of the land at $380,000, with the improvements at $270,000. Even this assessment indicates the significance of the initial contribution of the Husband in bringing the land into the relationship. It is hard to assess in either percentage or mathematical terms, but this initial contribution is a matter that must be taken into account in the context of all other and later contributions.
The Applicant submits that at the commencement of the relationship, she had some superannuation with her employer, Employer N, as well as a quantity of Employer N shares. The submission is made that based on historical records of Employer N share prices, the value of her holding would have been between $100,000 to $174,000. Of course, that does not take into account the fact that the shares were not fully owned, and, indeed, not paid off until 2001, 10 years after the commencement of their relationship. Once again, the Wife’s initial shareholdings is a factor to be taken into account, having regard to all other contribution, including contribution made later.
The Wife received an $80,000 redundancy payment in 2001. $40,000 of that was used to pay out the balance on her employee share plan.
The Wife concedes that in 2012, the Husband received a compensation payout of $52,533.66 for a 2010 motor vehicle accident. This is also a significant contribution that needs to be taken into account, together with other contributions made, both before and after.
The Wife concedes that shortly before, and then shortly after separation, the Husband received an inheritance of $228,582 from the estate of his late mother. This, too, is a significant contribution that needs to be taken into account, having regard to all contribution, both before and after.
In the pre-separation period, there is no finding that the Court can make in relation to the Wife’s gambling activities, other than it took place. That does not necessarily result in an adjustment, either by way of contribution or future needs. This is a matter that should have been carefully explored in the cross-examination of the Wife, had the Husband chosen to participate in the proceedings.
The evidence of the Wife and the Husband conflicts about the contribution that each made during the relationship. The Court accepts the Wife’s evidence.
The fact is that over a long relationship, the Husband and the Wife each made financial and non-financial contributions, both directly and indirectly. They accumulated quite significant assets. They both worked hard, in their own individual ways, in so doing.
The Court must express its puzzlement, however, at the submission that the Wife’s contribution should result in an assessment in her favour of 55 per cent. On the facts before it, the opposite result is, in fact, correct. The Court assesses contribution in the Husband’s favour at 55 per cent, being the combined effect of bringing the land on which the family home is built into the relationship, a compensation payment, as well as a not insubstantial inheritance at around the time of separation.

An assessment for future needs?

The Wife does not seek an adjustment for future needs in her favour and submits that there is no adjustment to be made in the Husband’s favour. The submission is made that when the personal circumstances of the parties are compared to one another, there does not appear to be a health issue, age issue, or other incapacity issue which would entitle either party to a section 90SF(3) adjustment. With respect, that is a startling submission to make. The Wife gives no evidence of any health concerns relating to her. She is 10 years younger than the Husband. She does not plausibly explain why she could not work. She herself deposes to the health problems that the Husband experiences. At paragraph 75 of her Affidavit, she refers to his mental ill health for many years. She refers to his abuse of prescription medication and excessive consumption of alcohol. She has observed him experience depression, and assisted him to attend psychiatrist and general practitioners. She is aware of the medication that he was prescribed, and his hospitalisations in relation to overdoses of prescription drugs and alcohol. She drove him to both specialist and general practitioner’s appointments. In her own tender bundle, she produces recent records of the Husband’s admission to hospital, where he was provisionally diagnosed with Syndrome HH, and where his past medical history was described as including hypercholesterol, depression, GORD, and Xanax misuse.
In an Affidavit filed by the Husband on 14 August 2019, he attaches a medical report from a Dr JJ, who appears to be his treating consultant psychiatrist, dated 3 April 2019. It refers to repeated retinal detachments, increased use of Xanax, rehabilitation in inpatient settings to detox from Xanax and alcohol, a history of prominent dysregulation and anger outbursts, but with no psychotic symptoms. There is also annexed a letter from Dr KK, who describes the Husband’s past history as including panic, anxiety, severe depression, alcohol and Xanax addition, bilateral carpel tunnel, and four broken ribs.

The Wife submitted, however, that there should be no further adjustment under section 90SM because of the Husband’s non-disclosure. This submission needs to be carefully examined. The Husband’s conduct in these proceedings is discussed above, in the context of the procedural history of this matter, and how the decision was made to deal with it on an undefended basis. It would be a fundamental error, however, to confuse conduct which might result in the making of a costs order, as being something that ought to be taken into account in the exercise of discretion when considering a future needs factor. In any event, the Husband’s lack of cooperation and non-disclosure of his financial circumstances is a proposition accepted by the Court.
The Wife was entitled to express concern that the Husband did not make disclosure in accordance with the Federal Circuit Court Rules 2001 (Cth), and made her task of preparing for this case and the Court’s task in deciding it, significantly more arduous. This does not, of itself, result in a finding of non-disclosure that should somehow be reflected in a section 90SF adjustment. Besides, is the Wife to throw the metaphorical stone of non-disclosure in a case where the Court has serious concerns about her own disclosure about the true nature and extent of her gambling activities?
The safer course, the Court concludes, is to revisit the issue of the Husband’s conduct in this litigation, including failure to comply with Orders, directions and Rules of the Court, by way of the costs order. It must not be overlooked that the Court has already made an add back of $748,000 on the Husband’s account.
All of this evidence leads to a conclusion that the Husband should receive a further adjustment in his favour of five per cent to reflect his additional future needs over and above that of the Wife.

A just and equitable order

Having regard to the above, the alteration of property interests would result in an adjustment in the Husband’s favour as to 60:40 of the pool of assets and notional property available to the parties. There are no issues of a superannuation split. An orderly division of the assets is required.
Having regard to the findings made above, the Husband’s 60 per cent of the pool of assets is $1,439,088.60. The Wife’s share is $959,392.40.
The value of the property already held by the Husband in accordance with the Balance Sheet as found by the Court is $1,442,686. The value of the property already held by the Wife in accordance with the Balance Sheet as found by the Court is $875,276. The value of the jointly held assets as found by the Court is $80,519.
The Husband’s entitlement is $1,439,088.60. He therefore needs to pay to the Wife $3,597.40. The Wife, of course, would solely retain the jointly held assets, and Orders to that effect will be made.
This is calculated on the basis that he retains the following items from the Balance Sheet:

Asset Value

1. H Street, Suburb J $650,000

3. Household contents $1,000

6. Bank O account, ...92 $3

7. Bank O account, ...19 $6,005

8. Bank O account, ...30 $608

9. Bank O account, ...43 $5,008

10. Bank Q account, ...53 $4,866

11. Shares V 551 @ 16.99 $9,361

18. Motor Vehicle 2 $15,350

19. Motorcycle AA -

20. Motorcycle BB $2,230

21.
Motor Vehicle 3
-

22. Motorcycles CC (x2) -

23. Motorcycle DD -

24. Motorcycle EE -

25. Motorcycle FF -

27. Bank K Cash Management Account ...97 $255

28. Super Fund P ...88 (cash account) -

29. Super Fund P ...88 (term deposit) -

30. Super Fund P ...88 (term deposit) -

36. Amount withdrawn by the Respondent $748,000

Total: $1,442,686

The Court observes that the Wife retains substantial cash, shareholding and superannuation.
The Court finds that the Order proposed by it is as just and equitable as the circumstances of this case allow.

Wife’s application for costs

The Applicant Wife sought an order for indemnity costs and provided comprehensive submissions and supporting documents at the Hearing. It was acknowledged, however, that these documents had not yet been sent to the Husband. This should take place forthwith. The Court received the documents but in deliberating has concluded that it is premature to deal with the question of costs until the outcome of this case is clear. Accordingly, the costs issue will be revised after Orders are made, and these Reasons published. Directions will be made for the orderly determination of any consequential costs issued.
The Court makes these very tentative preliminary observations about costs. The Order made in this case in favour of the Wife is much lower than she sought. The submissions made on her behalf do refer to offers of settlement but do not provide details. However, the outcome of the litigation, and offers made, are not the only bases on which a costs order can be made.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate:

Date: 16 June 2020

Schedule One

Detailed chronology prepared on behalf of the Applicant Wife

Date	Event	Source
... 1954	Respondent, Mr Denis is born, currently 65 years of age.
... 1964	Applicant, Ms Norris is born, currently 55 years of age.
1991	Applicant asserts the parties commenced cohabitation.	A1, para 4
1991	Applicant asserts the respondent owned a vacant block of land at H Street, Suburb J and operated a construction business, Company LL.	A1, para 9
1991	Applicant was working at Employer N as a professional in a senior position. Applicant had superannuation with Employer N’s company fund and Employee Share Plan acquiring 11,174 Employer N shares.	A1, para 9
1991	Parties rent a home at Suburb MM and contributed one half of the rent each.	A1, para 10,11
1991	Applicant asserts from 1991 until 1996 she assists with the running of the business, including but not limited to developing advertising brochures, typing up quotes, developing contracts, paying invoices and banking cheques.	A1, para 52
1992	Applicant asserts from 1992 until 2000 in addition her salary she receives a dividend payment from the Employer N shares in her name. The entirety of the dividend payments received were attributed to repaying the Employee Share Plan loan.	A1, para 19
1992	Applicant asserts parties decided to build a home on the block of land at H Street, Suburb J (“the property").	A1, para 12
1993	Applicant asserts parties obtained financial advice together from NN, Accountant until 2000.	A1, para 18
1993	Applicant asserts the Respondent obtains development approval from Suburb J Council and chose a builder, OO Building, Town PP to undertake the construction of the property.	A1, para 53
1994	Applicant asserts using the company’s excavator the Respondent undertook the site excavations for the property and after the excavation the builder took over the construction of the property.	A1, para 56
1995/1996	Applicant asserts the parties commence building a house on the vacant block of land at H Street, Suburb J.	A1, para 13
Mid 1995	Applicant asserts the builder had completed the first storey and commenced construction on the second storey of the property. Around this time the Respondent had a dispute with the builder and after that the Respondent worked on the property utilising an owner/builder licence.	A1, para 57
1996	Applicant asserts her role in the company increased to include book work, including generating the quarterly BAS, implementing QuickBooks bookkeeping and maintained same, liaising with suppliers on purchase orders and accounts payable, meeting with accounting professional personnel regarding the end of financial year tax for the company, continued developing advertising brochures, writing up quotes, paying invoices and banking cheques. In addition, the Applicant also managed the parties’ personal tax and superannuation.	A1, para 69
1996	Applicant asserts on the advice of the parties accountant the business is incorporated, and the Applicant becomes a director of the incorporated entity (“the company”).	A1, para 20
1996	Applicant asserts the parties set up a Self-Managed Superannuation Fund (“SMSF”).	A1, para 88
1996	From 1996 until 2014 the Applicant asserts the parties make contributions to the SMSF.	A1, para 90
1997/1998	Applicant asserts the parties move into the property built on H Street, Suburb J. Applicant asserts the property incomplete.	A1, para 14, 62-64
2001	Applicant accepted a redundancy offer from Employer N and received $80,000.00 of which $40,000.00 was used to pay out the balance of the employee share loan on the 11,174 Employer N shares. The balance of $40,000.00 was exhausted on general living expenses over the next few years.	A1, para 22/23
2001	Applicant asserts after this date she receives the whole of the dividends from the Employer N shares, usually in excess of $10,000.00 per year paid into the Applicant’s personal Bank Q everyday account.	A1, para 24
2001	Applicant asserts after this date the parties sought financial advice and engaged QQ Financial Planning as our financial advisors.	A1, para 25
2000	From 2000 until 2002 Applicant asserts, she undertook contract work with Employer N Suburb RR, Employer SS, and Employer TT. Income was used to meet the parties general living expenses, including the expenses associated with construction of the property.	A1, para 26
2003	Applicant asserts that the Respondent decided that he would be able to make money breeding birds.	A1, para 30
2004	Applicant asserts that the Respondent purchases two (2) adult birds, then purchased more birds.	A1, para 31
2005	Applicant asserts the birds start breeding.	A1, para 31
2005	Applicant asserts the parties decided to stop building work and focus on a new business involving maintenance, insurance quotes and heating. Developed the trading name “Company UU” together.	A1, para 35
2005	Applicant asserts the parties became friends with another couple, often attended local clubs to watch football together and have lunch on Sundays. When attending the clubs, Applicant played the poker machines with a friend.	A1, para 36
2005	Applicant asserts her cleaning duties increased significantly after the birds started flying freely in the upstairs area.	A1, para 73
2006	Applicant asserts she becomes friends with a small group of women she met whilst playing bingo on a Saturday. From 2006 Applicant attends Suburb S Sports Club each Saturday to play bingo usually staying until 4.00pm or 5.00pm playing the poker machines. Applicant estimates she usually spends $50.00 per week on average gambling.	A1, para 37
2008	Applicant asserts the Respondent, the Respondent’s brother, Mr VV, and herself are appointed as the Respondent’s mother, Ms WW’s, Enduring Power of Attorneys.	A1, para 39
2010	Applicant asserts from this date that she and, the Respondent’s brother, Mr VV arranged for Ms WW’s home in City XX to be rented after she was moved into a Nursing Home. The rental payments were paid into a Commonwealth Bank account. The Applicant set up a cheque account attached to the main Commonwealth Bank account in Ms WW’s name. From this account the Applicant paid invoices on Ms WW’s behalf to the nursing home and local pharmacy.	A1, para 40
2010	Applicant asserts motorcycle incident and subsequent shoulder injury continues to work for the company replacing parts until in or around 2016.	A1, para 41,42
14 March 2012	Respondent received a compensation payout of $52,533.66. This amount is deposited into the Bank O account ...19.	A1, para 43
2014	Applicant asserts she becomes aware the Respondent is having an affair.	A1, para 44
2014	Applicant asserts the parties went on a holiday to Country YY with another couple and the Applicant went on one (1) three (3) day cruise with friends.	A1, para 45
2015	Applicant asserts the Respondent purchases a shipping container for approximately $5,000.00 to store his personal effects.	A1, para 71
February 2015	Applicant asserts she moved out of the main bedroom to the downstairs spare room, she continued to cook and clean for the Respondent as usual.	A1, para 104
27 February 2015	The sum of $186,074.51 (being the first of two (2) payments from the Respondent’s late mother’s Estate) is deposited into the Respondent’s Bank O account ...92.	A1, para 47
2015	Applicant asserts she attends one (1) nine (9) day cruise with friends.	A1, para 46
March 2015	Respondent asserts date of separation.	R1, para 3
March 2015	From 23 March 2015 until 21 November 2015 the Applicant accessed a total of $120,000.00 from the Respondent 's Bank O bank account, of which the Applicant was a signatory for.	A1, para 161
March 2015 -April 2015	Applicants asserts that she transferred the sum of $90,000.00 from the Respondent’s Bank O account to her Bank Q everyday account ...01 for day to day to day living expenses before leaving the Respondent.	A1, para 162
23 March 2015	Applicant transfers the sum of $10,000.00 from the Respondents Bank O bank account to the Applicant’s Bank Q account.	A1, para 163
23 March 2015	Applicant transfers the further sum of $10,000.00 from the Respondents Bank O bank account to the Applicant’s Bank Q account.	A1, para 163
24 March 2015	Applicant transfers the sum of $10,000.00 from the Respondents Bank O bank account to the Applicant’s Bank Q account.	A1, para 163
25 March 2015	Applicant transfers the sum of $10,000.00 from the Respondents Bank O bank account to the Applicant’s Bank Q account.	A1, para 163
31 March 2015	Applicant transfers the sum of $10,000.00 from the Respondents Bank O bank account to the Applicant’s Bank Q account.	A1, para 163
2 April 2015	Applicant transfers the sum of $10,000.00 from the Respondents Bank O bank account to the Applicant’s Bank Q account.	A1, para 163
7 April 2015	Applicant transfers the sum of $10,000.00 from the Respondents Bank O bank account to the Applicant’s Bank Q account.	A1, para 163
9 April 2015	Applicant transfers the sum of $10,000.00 from the Respondents Bank O bank account to the Applicant’s Bank Q account.	A1, para 163
9 April 2015	Applicant transfers the sum of $10,000.00 from the Respondents Bank O bank account to the Applicant’s Bank Q account.	A1, para 163
April 2015	Applicant asserts date of separation. Applicant asserts she left the property after the Respondent asked her to leave.	A1, para 5 A1, para 15, 51
April 2015	Applicant asserts incident of family violence occurs.	A1, para 105
April 2015	From April 2015 until November 2016 Applicant asserts she continues to attend the property to assist with the cleaning and do various tasks for the Respondent.	A1, para 81, 82, 85
April 2015	Applicant asserts QQ Financial Planning arranged for the holdings in the SMSF to be cashed in.	A1, para 94,97
2015	The Applicant sold the Motor Vehicle 4 for $10,000.00. The proceeds of sale were deposited into the Applicant’s Bank Q account, account number ...15.	A1, para 167.
June/July 2015	Applicant asserts QQ Financial Planning arranged for the holdings in the SMSF to be cashed in.	A1, para 94,97
September 2015	Applicant transferred further $30,000.00 from the Respondent 's Bank O bank account.	A1, para 165
7 September 2015	Applicant transfers the sum of $10,000.00 from the Respondents Bank O bank account to the Applicant’s Bank Q account.	A1, para 166
9 November 2015	The sum of $42,507.93 (being the second and final payments from the Respondent’s late mother’s Estate) deposited into Bank O account ...19.	A1 para 47
2016	Applicant asserts she assists the Respondent install shelving in the shipping container.	A1, para 71
2016	Applicant commences relationship with a man named Mr ZZ.	A1, para 269
20 October 2016	Applicant asserts she receives a phone call from the Respondent and they argue, the Respondent threatens the Application saying words to the effect, “If I see your car at the club, I’m going to axe it” and “If I see you in the street, I’ll punch your teeth in.” Applicant attends Region L Police Station and reported the above. Informed no police officer available and the Applicant leaves.	A1, para 106
20 October 2016	From 20 October 2016 until 25 October 2016 Applicant asserts, she receives twenty six (26) text messages and numerous phone calls from the Respondent.	A1, para 108
25 October 2016	Applicant asserts she contacted police and reported the Respondent’s behaviour.	A1, para 109
25 October 2016	Police applied for an Apprehended Domestic Violence Order for the protection of the Applicant against the Respondent.	A1, para 110
2016	Property Recovery Order made in Suburb B Local Court for the Respondent to collect items from the Applicant father’s home between 30 November 2016 and 3 December 2016. The Respondent does not comply with the Property Recovery Order.	A1, para 112
18 November 2016	Applicant transfers the sum of $10,000.00 from the Respondents Bank O bank account to the Applicant’s Bank Q account.	A1, para 166
21 November 2016	Applicant transfers the sum of $10,000.00 from the Respondents Bank O bank account to the Applicant’s Bank Q account.	A1, para 166
Late 2016	Respondent asserts he discovers the applicant had been transferring money out of the personal Bank O account without his knowledge or consent. Respondent asserts the applicant has taken $130,500.00 from Bank O Savings account from the period 3 February 2015 until 21 November 2016.	R1, para 41
January 2017	The Self-Managed Super Fund had the following funds in the respondent’s name in a Super Fund P Cash account $762,819.00, funds in the applicant’s name in a Super Fund P Cash account $461,109.00, remaining cash amount with Bank O totalling $21,173.00 which the applicant was advised needed to be divided $12,698.00 to the respondent and $8,475.00 to the applicant.	A1, para 88-97 A1, para 98
2017	Amended Property Recovery Order was made in Suburb B Local Court for the Respondent to collect items from the Applicant father’s home between 16 February 2017 and 18 February 2017. The Respondent does not comply with the Property Recovery Order.	A1, para 114
5 April 2017	Applicant commences proceedings in the Federal Circuit Court of Australia.	A1, para 205
2017	Amended Property Recovery Order was made in Suburb B Local Court for the Respondent to collect items from the Applicant father’s home between 12 April 2017 and 15 April 2017.	A1, para 116
10 April 2017	The sum of $8,492.47 was transferred from the SMSF to the Applicant’s Bank K Cash Management account ...87.	A1, para 99
11 April 2017	Applicant asserts she obtains a loan from her father for $10,000.00	A1, para 170-172
12 April 2017	Respondent collected the items from the Applicant’s father’s home in accordance with the Amended Property Recovery Order made on 6 April 2017	A1 para 117
12 April 2017	The sum of $12,724.18 was transferred from the SMSF to the Applicant’s Bank K Cash Management account ...88.	A1, para 100
15 April 2017	Respondent collected the items from the Applicant’s father’s home in accordance with the Amended Property Recovery Order made on 6 April 2017.	A1 para 117
30 June 2017	The balance of the Respondent’s Super Fund P Pension Service Account, account number ...88, was $740,069,74.	A1, para 178
1 August 2017	Orders made in the Federal Circuit Court of Australia at Wollongong. Directions for the Respondent to file and serve Response. Applicant’s costs reserved.	A1, para 206
7 August 2017	Applicant sells 1,174 Employer N shares and receives $30,794.72.	A1, para 173
11 September 2017	Respondent files Affidavit, Financial Statement and Response.
13 September 2017	Orders made in the Federal Circuit Court of Australia at Wollongong. Parties agree to participate in mediation. Mediations fails.	A1, para 207
26 September 2017	Respondent files Subpoena to Suburb S Sports Club with the documents to be produced to the Registry by 20 July 2018.
24 November 2017	Applicant resigns as a director and secretary of the company.	A1, para 86
29 January 2018	Orders made in the Federal Circuit Court of Australia at Wollongong. Matter set down for two (2) day final hearing commencing on 17 January 2019.	A1, para 208
20 June 2018	Australian Securities and Investments Commission the company is deregistered.	A1, para 87
30 June 2018	The balance of the Respondent’s Super Fund P Pension Service Account, account number ...88, was $315,833.01.	A1, para 179
18 July 2018	Respondent files Subpoena to Town U Sports Club with the documents to be produced to the Registry by 30 July 2018.
18 July 2018	Respondent files Subpoena to Suburb T Sports & Recreation Club with the documents to be produced to the Registry by 20 July 2018.
26 October 2018	Matter listed in the Federal Circuit Court of Australia, Wollongong. Trial directions made.
26 October 2018	Parties agree to jointly appoint AAA Valuers to prepare a valuation for the property.	A1, para 195
26 October 2018	Joint letter of instruction appointing AAA Valuers to prepare a valuation for the property. Parties paid the fees for the joint valuation equally.	A1, para 196
1 November 2018	The Applicant’s solicitor provided the Respondent’s then solicitor (E Law Firm) with the Applicant’s financial disclosure documents.	A1, para 140
2 November 2018	Applicant sells 450 Employer N shares and receives $14,955.16.	A1, para 173
13 November 2018	Hearing dates vacated and matter instead listed for a two (2) day final hearing commencing on 31 January 2019.
13 November 2018	AAA Valuers prepared a joint valuation for the property, which was assessed as $670,000.00.	A1, para 197
November 2018	The Respondent alleges that this is the last time he received correspondence from the Applicant’s solicitors.	R2, para 3.
6 December 2018	The Applicant’s solicitor provided the respondent directly with the Applicant’s financial disclosure documents.	A1, para 141
10 December 2018	AAA Valuers joint valuation report for former matrimonial home is released. Market value $670,000.00.
12 December 2018	Applicant’s solicitor receives a request from the Respondent for an adjournment of the final hearing until at least May 2019 to enable Mr Denis to obtain legal representation.	A1, para 209
17 December 2018	Applicant reluctantly agrees to the Respondent’s request for an adjournment.	A1, para 210
17 December 2018	Hearing dates vacated and matter instead listed for mention on 31 January 2019 at 9:30am.	A1, para 211
31 January 2019	Matter listed in the Federal Circuit Court of Australia, Wollongong. Trial directions made. Matter listed for two (2) day final hearing commencing 12 September 2019. The Respondent informs the Applicant’s solicitor that he has not received the Applicant’s updated financial disclosure documents.	A1, para 212
21 February 2019	The Applicant’s solicitor requested financial disclosure by 28 February 2019.	A1, para 145
21 February 2019	The Applicant’s solicitor provided the Respondent directly with the Applicant’s updated financial disclosure documents via email and post.	A1, para 144
5 March 2019	The Applicant’s solicitor makes a further request for financial disclosure as per the latest Orders, by 19 March 2019. No response.	A1, para 146
17 March 2019	A Final ADVO was made against the Respondent for the Applicant’s protection. The Respondent filed an appeal.	A1, para 118-120,272
15 April 2019	The Applicant’s solicitor makes a further request for financial disclosure. The Applicant’s draft Application in a Case is served. The Applicant’s solicitors did not receive a response by or on behalf of the Respondent.	A1, para 147
2019	Respondent’s Appeal against the final ADVO listed for hearing on 5 July 2019 before Court F.	A1, para 121
29 May 2019	The Applicant files an Application in a Case together with an Affidavit seeking Orders for the Respondent to provide financial disclosure documents.	A1, para 213
7 June 2019	Applicant sells 450 Employer N shares and receives $18,837.00.	A1, para 152
11 June 2019	An attempt was made to serve the Respondent with the Applicant’s Application in a Case and supporting Affidavit filed on 29 May 2019.	Affidavit of Service
14 June 2019	An attempt was made to serve the Respondent with the Applicant’s Application in a Case and supporting Affidavit filed on 29 May 2019.	Affidavit of Service
19 June 2019	The Respondent was served with the Application in a Case filed on 29 May 2019.	A1, para 214
28 June 2019	Respondent directed to file and serve his own valuation. No compliance	A1, para 174
30 June 2019	The balance of the Respondent’s Super Fund P Pension Service Account, account number ...88, was $605,820.16.	A1, para 180
1 July 2019 – 29 October 2019	The Respondent withdraws the entirety of the Super Fund P Pension Service Account number ...88.	A1, para 181
2019	The Respondent’s Appeal of the Final ADVO is heard and dismissed by Judge G before Court F.	A1, para 122
31 July 2019	The Respondent withdrew $200,000.00 from his Bank O account, account number ...92.	A1, para 182
14 August 2019	The Respondent files an Application in a Case and supporting Affidavit seeking the two (2) day final hearing be vacated due to the Respondent’s declining health and need for rehabilitation.	A1, para 215
21 August 2019	Orders made in the Federal Circuit Court of Australia at Wollongong. a) Order 1 of the Orders sought by the Applicant in the Application in a Case filed on 29 May 2019. b) Dismissed Application in a Case filed on 14 August 2019 by the Respondent. c) Applicant’s costs reserved in relation to the Application in a Case filed on 29 May 2019. d) Matter remains listed for final hearing commencing on 12 September 2019.	A1, para 216
22 August 2019	Applicant’s solicitor sends correspondence to the Respondent seeking financial disclosure.	A1, para 149
2 September 2019	Correspondence from DGB Lawyers sent correspondence to the Respondent in relation to obtaining an updated valuation for the property.	A1, para 199-200
2 September 2019	Applicant files consolidated Affidavit, Financial Statement and Amended Application.	Not in Feb A
2 September 2019	Respondent sends an email to the Associate of Judge Kemp seeking to have the matter vacated.	Not in Feb A
2 September 2019	The Respondent transfers the sum of $79,601.33 from his Bank Q account, account number ...90 to his Bank Q account, account number ...53.	A1, para 186
4 September 2019	Applicant’s solicitors receive and email from the Respondent requesting an adjournment per the provisions of section 102NA of the Family Law Act 1975, as the Applicant was still protected by the ADVO. The email was also sent to His Honour Judge Kemp’s Associate.	A1, para 217-218
4 September 2019	Respondent’s adjournment application is listed on 9 September 2019.	A1, para 219
5 September 2019	The Respondent withdrew the sum of $20,000.00 from his Bank Q account, account number ...53.	A1, para 188
6 September 2019	Applicant sells 275 Employer N shares and receives the sum of $9,979.75.	A1, para 173
9 September 2019	Matter listed at before Judge Kemp 9.30am for Mention. The Respondent’s adjournment application is adjourned until 12 September 2019.	A1, para 220
9 September 2019	The Respondent withdrew the sum of $25,000.00 from his Bank Q account, account number ...53.	A1, para 166
11 September 2019	The Respondent withdrew the sum of $25,000.00 from his Bank Q account, account number ...53.	A1, para 188
12 September 2019	Matter listed for a two (2) day final hearing before His Honour Judge Kemp. The two (2) day final hearing is vacated, the matter is listed for mention on 10 December 2019 and the Applicant’s legal costs are reserved.	A1, para 221-222
12 September 2019	The Respondent withdrew the sum of $50,000.00 from his Bank O account, account number ...92.	A1, para 182
18 September 2019	The Respondent withdrew the sum of $210,000.00 from his Bank O account, account number ...92.	A1, para 182
1 October 2019	Respondent attended Applicants solicitors’ (DGB) offices. Correspondence occurred via email.	A1, para 124-127
2 October 2019	Correspondence from the Respondent to the Applicant’s solicitors via email.	A1, para 128
2 October 2019	The Respondent withdrew the sum of $100,000.00 from his Bank O account, account number ...43.	A1, para 184
3 October 2019	Correspondence from the Applicant’s solicitors to the Respondent.	A1, para 129
6 October 2019	Correspondence from the Respondent to the Applicant’s solicitors via email.	A1, para 130
28 October 2019	The Respondent withdrew the sum of $5,000.00 from his Bank O account, account number ...92.	A1, para 182
30 October 2019	The Respondent withdrew the sum of $100,000.00 from his Bank O account, account number ...43.	A1, para 184
14 November 2019	The Respondent withdrew the sum of $8,000.00 from his Bank O account, account number ...43.	A1, para 184
2 December 2019	The Respondent withdrew the sum of $5,000.00 from his Bank Q account, account number ...53.	A1, para 188
4 December 2019	The Applicant’s solicitors send correspondence to the Respondent in relation to the withdrawals made from his Super Fund P account, account number ...88 and his Bank O account, account number ...92.	A1, para 191
6 December 2019	Correspondence from the Respondent to the Applicant’s solicitors via email.	A1, para 192
9 December 2019	Applicant files an Application in a Case and Affidavit seeking restraints on the Respondent of disposing of property from the relationship and for leave to be granted to file a Caveat against the H Street, Suburb J property.	A1, para 223
10 December 2019	Orders made in the Federal Circuit Court of Australia as per the Application in a case filed on 9 December 2019. Leave is granted to the Applicant to file Caveat against the H Street, Suburb J property. The matter was listed for a three (3) day hearing commencing on 17 February 2020.	A1, para 224
20 December 2019	Caveat registered against the H Street, Suburb J property.	A1, para 256
13 January 2020	Applicant sells 500 Employer N shares and receives the sum of $19,762.00	A1, para 173
30 January 2020	The Respondent sends an email to Judge Altobelli’s Associate seeking an adjournment of the 17 February hearing. The Applicant’s solicitors were not copied into the correspondence.	A1, para 225
1 February 2020	The Applicant’s solicitors send correspondence to the Respondent in relation to obtaining an updated valuation of the property. The Applicant’s solicitors receive no response.	A1, para 201-202
3 February 2020	The Applicants solicitors send correspondence to AAA Valuers to prepare an updated valuation for the property.	A1, para 203-204
5 February 2020	The Respondent sends an email to the Applicant’s solicitors with a copy of the email he sent to Judge Altobelli’s Associate seeking an adjournment of the 17 February hearing. The Applicant’s solicitors email Judge Altobelli’s Associate to notify that the Applicant did not consent to the adjournment sought by the Respondent.	A1, para 226-227
7 February 2020	Correspondence from the Applicant’s solicitors to the Respondent via post.	A1, para 150
7 February 2020	Applicant files an Affidavit, amends Initiating Application and Financial Statement.
7 February 2020	Affidavit of Ms R, AAA Valuers, filed on behalf of the Applicant.
7 February 2020	Updated valuation for the property prepared by AAA Valuers on the instruction of the Applicant, property is assessed as $650,000.00.
11 February 2020	Orders made in the Federal Circuit Court of Australia at Wollongong. The Applicant attends the Federal Circuit Court of Australia at Wollongong. The Respondent’s adjournment application is dismissed. Applicant and Applicant’s solicitor require a security escort from the Federal Circuit Court of Australia Wollongong Registry to DGB Lawyers.	A1, para 135, 229
11 February 2020	Correspondence from the Respondent to the Applicant’s solicitors via email.	A1, para 230
12 February 2020	Correspondence from DGB Lawyers to New South Wales Police Force.	A1, para 137
12 February 2020	Correspondence from the Respondent to the Applicant’s solicitors via email.	A1, para 138
12 February 2020	Correspondence from DGB Lawyers to Judge Altobelli’s Associate.	A1, para 231
13 February 2020	Correspondence from the Respondent to the Applicant’s solicitors via email.	A1, para 139
13 February 2020	Correspondence from the Respondent to Judge Altobelli’s Associate.	A1, para 233
13 February 2020	Correspondence from Judge Altobelli’s Associate to all parties.	A1, para 234
13 February 2020	Orders made in the Federal Circuit Court of Australia at Wollongong. The three (3) day final hearing commencing on 17 February 2020 is vacated. The matter is listed for mention on 9 March 2020 and the Applicant’s legal costs are reserved.	A1, para 235
14 February 2020	Applicant sells 500 Employer N shares and receives the sum of $19,297.00.	A1, para 173
3 March 2020	Correspondence from DGB Lawyers to Legal Aid Family Violence Cross Examination Scheme.	A1, para 237
4 March 2020	Correspondence from the Respondent to the Applicant’s solicitors via email.	A1, para 151
4 March 2020	Correspondence from DGB Lawyers to the Respondent.	A1, para 154
6 March 2020	Correspondence from the Respondent to the Applicant’s solicitors via email.	A1, para 152
8 March 2020	Correspondence from the Respondent to the Applicant’s solicitors via email.	A1, para 155
9 March 2020	Orders made in the Federal Circuit Court of Australia at Wollongong. The matter is listed for a three (3) days final hearing commencing on 25 May 2020.	A1, para 236
10 March 2020	Correspondence Legal Aid Family Violence Cross Examination Scheme to Judge Altobelli’s Associate and all parties.	A1, para 238
5 May 2020	Correspondence from DGB Lawyers to the Respondent.	A1, para 157
6 May 2020	Correspondence from the Respondent to the Applicant’s solicitors via email.	A1, para 158
8 May 2020	Correspondence from DGB Lawyers to the Respondent.	A1, para 159
16 April 2020	Correspondence from the Respondent to Judge Altobelli’s Associate.	A1, para 239
20 April 2020	Correspondence from Judge Altobelli’s Associate to all parties.	A1, para 240
22 April 2020	Correspondence from the Respondent dated 21 April 2020 is sent via email to Judge Altobelli’s Associate.	A1, para 241
28 April 2020	Correspondence from DGB Lawyers to Quirk Lawyers via email. No reply is received.	A1, para 242
13 May 2020	Correspondence from DGB Lawyers to Quirk Lawyers via email. No reply is received.	A1, para 243
13 May 2020	Correspondence from the Respondent to Judge Altobelli’s Associate.	A1, para 245
13 May 2020	Orders made in the Federal Circuit Court of Australia at Wollongong. The three (3) day final hearing commencing on 25 May 2020 is confirmed via Microsoft Teams. No appearance by or on behalf of the Respondent. The Solicitor for the Applicant is directed to notify the Respondent of the Orders made.	A1, para 246
13 May 2020	Correspondence from DGB Lawyers to the Respondent via email and post.	A1, para 248
13 May 2020	Correspondence from the Respondent to DGB Lawyers to via email.	A1, para 249
15 May 2020	Applicant files Affidavit (“A1”), Financial Statement and Amended Initiating Application.
15 May 2020	Orders are made in the Federal Circuit Court of Australia at Wollongong. Leave is granted to the Applicant to file and serve a short service to BBB Hospital.

Schedule Two

Procedural chronology prepared on behalf of the Applicant Wife

Date	Event
5 April 2017	Applicant files Application for Final Orders, Affidavit and Financial Statement.
12 April 2017	Respondent is served with the Applicant's Initiating Application, Affidavit, Financial Statement and Marriage, Families & Separation brochure. (See Affidavit of Service filed on 18 April 2017.)
1 August 2017	Orders made in the Federal Circuit Court of Australia at Wollongong by Judge Boyle. The Respondent is directed to file and serve his Response, Financial Statement and Affidavit in support by no later than 4.00 pm on 28 August 2017. The Applicant's costs are reserved.
11 September 2017	The Respondent files a Response to final Orders, Affidavit and Financial Statement.
13 September 2017	Orders are made in the Federal Circuit Court of Australia at Wollongong. The parties agree to attend mediation.
25 October 2017	The Respondent's then solicitors, D Lawyers, withdraw.
29 January 2018	The matter is listed for a two (2) day final hearing commencing on 17 January 2019 at 10.00 am.
15 October 2018	The Respondent's then solicitors, E Law Firm, file Notice of Address for Service.
26 October 2018	Orders are made in the Federal Circuit Court of Australia at Wollongong. The matter is stood over to the two (2) day final hearing commencing on 17-18 January 2019 at 10.00 am. Both parties are to file and serve Amended Application/Response/Financial Statement by no later than 21 December 2018. Each party is to file and serve one consolidated Affidavit in support of the Orders sought by them together with any other witnesses' Affidavits by no later than 21 December 2018. Each party is to file and serve a Case Outline Document by no later than 4.00 pm on 14 January 2019.
12 December 2018	The Respondent requests an adjournment to obtain legal representation.
13 December 2018	The Respondent's then solicitors, E Law Firm, file a Notice of Intention to Withdraw as Lawyer.
17 December 2018	The Applicant consents to the Respondent's request for an adjournment for legal representation.
31 January 2019	Orders are made in the Federal Circuit Court of Australia at Wollongong. The parties are directed to exchange full and frank financial disclosure by 28 February 2019. It is noted that the Respondent proposes to obtain his own valuation of the former matrimonial home and he is directed to file and serve an Affidavit attaching that valuation by no later than 28 June 2019. The matter is listed for a two (2) day final hearing on 12-13 September 2019 at 10.00 am at Court A. Both parties are to file and serve any Amended Application/Response and/or Financial Statement upon which they intend to rely on by no later than 2 September 2019. Each party is to file and serve one consolidated Affidavit in support of the Orders sought by them together with any other witnesses' Affidavits by no later than 2 September 2019. Each party is directed to file and serve a Case Outline Document by 4.00 pm on 9 September 2019.
29 May 2019	The Applicant files an Application in a Case.
14 August 2019	The Respondent files an Application in a Case.
14 August 2019	The Respondent requests an adjournment for health reasons.
21 August 2019	Orders are made in the Federal Circuit Court of Australia at Wollongong in accordance with the Applicant's Application in a Case. The Applicant's costs for 21 August 2019 and in relation to the Application in a Case filed 29 May 2019 be reserved. The Respondent's Application in a Case filed 14 August 2019 is dismissed. The matter be stood over to the final hearing on 12-13 September 2019 before Judge Kemp in Wollongong.
4 September 2019	The Respondent requests an adjournment pursuant to section 102(NA).
9 September 2019	Orders are made in the Federal Circuit Court of Australia at Wollongong by Judge Kemp. The Respondent's adjournment application is adjourned to 12 September 2019.
12 September 2019	Orders are made in the Federal Circuit Court of Australia at Wollongong by Judge Kemp. The hearing listed for 12 and 13 September 2019 is vacated. The requirements of section 102(NA) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings on or after 11 September 2019. The Applicant's costs of and incidental to the husband's Application under section 102(NA) of the Act and the costs of 12 September 2019 are reserved. The matter is adjourned to 10 December 2019 at 9.30 am for the purpose of the allocation of hearing dates with priority.
21 September 2019	The Respondent’s request for an adjournment due to health reasons is denied.
9 December 2019	Applicant files an Application in a Case.
17 December 2019	Orders are made in the Federal Circuit Court of Australia at Wollongong by Judge Altobelli. The Respondent is restrained from dealing with withdrawing from or in any way encumbering Bank K Cash Management account, joint X shares, his Shares V and his Shares X. Leave is granted for a copy of the Orders to be served upon Bank X, Bank V, Bank K and QQ Financial Planning. The Applicant is authorised to register a Caveat on the property situated at and known as H Street, Suburb J, New South Wales. The matter is listed for a three (3) day final hearing commencing on 17-19 February 2020 at 10.00 am. Both parties are to file and serve any Amended Application and/or Response and Financial Statement upon which they intend to rely by no later than 4.00 pm on 7 February 2020. Each party is to file and serve one consolidated Affidavit in support of the Orders sought by them, together with any other witnesses' Affidavits by no later than 4.00 pm on 7 February 2020. Each party is to file and serve a Case Outline Document by no later than 4.00 pm on 11 February 2020.
5 February 2020	The Respondent requests an adjournment.
7 February 2020	The Applicant complies with the directions contained in the Orders made on 17 December 2019.
11 February 2020	Orders are made in the Federal Circuit Court of Australia at Wollongong by Judge Altobelli confirming the three (3) day final hearing commencing on 17 February 2020 at 10.00 am. The Respondent's request for an adjournment is denied.
11 February 2020	The Respondent sends an e-mail to the Associate of the Federal Circuit Court of Australia.
13 February 2020	The Respondent sends a further e-mail to the Applicant's solicitor.
13 February 2020	Orders are made in the Federal Circuit Court of Australia at Wollongong by Judge Altobelli. The hearing dates of 17-19 February 2020 are vacated. The matter is adjourned to 9 March 2020 at 9.30 am for mention. The matter is otherwise adjourned to the three day final hearing on dates to be fixed. The Applicant's costs are reserved.
9 March 2020	Orders are made in the Federal Circuit Court of Australia at Wollongong by Judge Altobelli. The matter is set down for a three (3) day final hearing on 25-27 May 2020 at 10.00 am. Both parties file and serve any Amended Application/Response/Financial Statement upon which they intend to rely on by no later than 4.00 pm on 15 May 2020. Each party is to file and serve one consolidated Affidavit in support of the Orders sought by them, together with any other witnesses' Affidavits by no later than 4.00 pm on 15 May 2020. Each party is to file and serve a Case Outline Document by no later than 4.00 pm on 20 May 2020.
13 May 2020	Orders are made in the Federal Circuit Court of Australia at Wollongong by Judge Altobelli. The matter is stood over to the three (3) day final hearing commencing on 25 May 2020 at 10.00 am by way of Microsoft Teams. The Solicitor for the Applicant is directed to notify the Respondent of the Orders made within seven (7) days to his last known residential address.
15 May 2020	The Applicant complies with the directions made on 9 March 2020 and files a consolidated Affidavit, Amended Initiating Application and Financial Statement.
15 May 2020	Orders are made in the Federal Circuit Court of Australia at Wollongong by Judge Altobelli. Leave is granted to the Applicant to file a short service Subpoena to BBB Hospital.

[2020] FCCA 1374

16 June 2020

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Remedies

Costs

Injunction

Fiduciary Duty

Judge Altobelli:	Well, where has the money gone, Mr Denis?
Mr Denis:	Same place what Ms Norris put the money she stole.
Judge Altobelli:	And where’s that?
Mr Denis:	I don’t know. You should know. I don’t know.
Judge Altobelli:	Well, it was your money, so where has it gone?
Mr Denis:	She stole it. I don’t know what she done with it.
Judge Altobelli:	Okay. All right.
Mr Denis:	It’s all right for her to steal it and for it to fly up in thin air, well, it’s good enough for me.
Judge Altobelli:	Yes. Okay. So are you saying that even if I made the orders that they’re asking me to make it wouldn’t make any difference, because it has all gone? Is that right?
Mr Denis:	Yes, that’s right.

Asset	Value
1.	H Street, Suburb J	$650,000
3.	Household contents	$1,000
6.	Bank O account, ...92	$3
7.	Bank O account, ...19	$6,005
8.	Bank O account, ...30	$608
9.	Bank O account, ...43	$5,008
10.	Bank Q account, ...53	$4,866
11.	Shares V 551 @ 16.99	$9,361
18.	Motor Vehicle 2	$15,350
19.	Motorcycle AA	-
20.	Motorcycle BB	$2,230
21.	Motor Vehicle 3	-
22.	Motorcycles CC (x2)	-
23.	Motorcycle DD	-
24.	Motorcycle EE	-
25.	Motorcycle FF	-
27.	Bank K Cash Management Account ...97	$255
28.	Super Fund P ...88 (cash account)	-
29.	Super Fund P ...88 (term deposit)	-
30.	Super Fund P ...88 (term deposit)	-
36.	Amount withdrawn by the Respondent	$748,000
Total:	$1,442,686