Park and Park
[2011] FMCAfam 1023
•29 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PARK & PARK | [2011] FMCAfam 1023 |
| FAMILY LAW – Section 75(2) adjustment – consideration as to the care of the children with respect to property adjustment – costs. |
| Family Law Act 1975, ss.75(2), 117 Federal Magistrates Act 1999, s.42 |
| Kowaliw & Kowaliw (1981) FLC 91-092 Weir & Weir [1993] FLC 92-338 Black & Kellner [1992] FLC 92-287 Milankov & Milankov [2002] FamCA 195 M & M [2006] FMCAfam 424 Ferraro & Ferraro (1993) FLC 92-335 AJO & GRO [2005] FamCA 707 Burgoyne & Burgoyne (1978) FLC 90 - 467 Townsend & Townsend (1995) FLC 92-569 DJM & JLM (1998) FLC 92-816 Pierce & Pierce [1998] FamCA 74 SJS & NS (2005) FLC 93-214 Kennon & Kennon (1997) FLC 92-757 DR & CAJ [2005] FamCA 213 Bourke & Bourke (1993) FLC 92-356 Gould & Gould (1996) FLC92-657 Clauson (1995) FLC 92-595 C & C (2005) FLC 93-220 U & U (2002) 211 CLR 238 Donoghue v Stevenson [1932] All ER Rep 1 |
| Applicant: | MS PARK |
| Respondent: | MR PARK |
| File Number: | PAC 4552 of 2010 |
| Judgment of: | Harman FM |
| Hearing dates: | 28 – 29 June 2011 |
| Date of Last Submission: | 29 June 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 29 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hazelwood |
| Solicitors for the Applicant: | McDonnell Schroder |
| Solicitors for the Respondent: | John R De Mattia & Co |
ORDERS
The wife, Ms Park, shall by 4pm 14 September 2011, pay to the husband Mr Park an amount of $75,000. Simultaneous with Ms Park’s compliance:
(a)Mr Park shall, do all things, sign all documents, give all consents and authorities necessary to transfer to Ms Park, the whole of his right title and interest in the property Property Q, [Q];
(b)Ensure that all council and water rates and outgoings, services and utilities with respect to the property are paid up, and until the date of transfer and thereafter cooperating in transferring those amounts;
I can pause to say I have not made a specific order as to their payment pending refinance. But clearly, if there is an obligation for them to be paid and they are not paid, they will be deducted from the $75,000.
(c)Vacate the [Q] property, giving Ms Park vacant possession of same, and leaving the property in a neat, fit and proper state of repair; and
(d)
Ms Park shall do all things and give all consents necessary to discharge the mortgages for the Westpac Bank, and indemnify
Mr Parkwith respect to the property and any liabilities relating to or arising from it.
For the purpose of order one, time shall be of the essence, and in the event that Ms Park is not in a position to comply with the Order by 4pm 14 September 2011, no extension of time is required to be given by Mr Park. In the event that Ms Park should fail to comply with order one within the time period specified, then Mr Park shall by 4pm on
30 November 2011, pay to the wife an amount of $83,000 and simultaneously the same obligations will apply in reverse. In the event that neither party is in a position to acquire the other’s interest and refinance, the property shall be listed for sale and sold in accordance with the terms and conditions set out in the orders, and upon completion of the sale that the net balance remaining shall be paid to Ms Park.
Pending completion, the party in occupation of the property shall be responsible for all payments with respect to council and water rates, services and utilities, and shall ensure the property is insured at all times for its full insurable value, and maintain it in a neat, fit and proper state of repair.
There will be a superannuation splitting order providing for a base amount of $13,000 to be transferred from Ms Park’s superannuation to Mr Park. Otherwise, section 78 Declarations for each party to retain any motor vehicle, furniture, shares, funds in bank accounts or otherwise, contributions, or benefits and entitlements in relation to superannuation. Each will be liable for and indemnify the other with respect to any liability in their sole name.
In the event that either party shall fail, neglect or refuse to sign any deed, document or instrument required by or to give effect to these orders then the Registrar of the Federal Magistrates Court Parramatta shall be and is hereby authorised, directed and empowered to sign such deed, document or instrument in the name of the defaulting party (same to be proved by production of an affidavit by the party requesting signature) and to thereafter do all things and acts necessary to give validity and operation to same.
I order that the husband, by way of contribution to the wife’s costs, with respect to these proceedings, pay to the wife a sum of $7,700 representing counsel’s fees with respect to the hearing 27 and 28 June 2011.
Such costs shall be a charge upon the husband’s entitlements under orders for property adjustment made today, and may be deducted without interest from any sum to be paid by Ms Park to Mr Park.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
These reasons are to be published with respect to both the substantive proceedings and the costs application.
IT IS NOTED that publication of this judgment under the pseudonym Park & Park is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4552 of 2010
| MS PARK |
Applicant
And
| MR PARK |
Respondent
REASONS FOR JUDGMENT
These are financial proceedings between a husband and wife who are respectively respondent and applicant in the proceedings.
The applicant Ms Park commenced these proceedings by application filed in the Family Court at this Registry 24 September 2010. The respondent husband Mr Park filed a response in the proceedings
15 October 2010. Those documents, to a large extent, are largely irrelevant as each has subsequently filed amended applications and responses and each has proposed different orders at trial, in accordance with their closing submissions and case outlines.
The parties attended a Conciliation Conference while these proceedings were still before the Family Court of Australia and on
21 January 2011 and at the conclusion of that conference, and when there was no resolution of issues between them, the proceedings were transferred to this Court.
The matter was heard over two days, 28 and 29 June 2011.
With respect to the proceedings it is important to note that from the outset of the matter and the filing of the initiating application on
24 September 2010 Ms Park has been legally represented. Mr Park was self-represented in these proceedings until May of this year, being only some weeks prior to the hearing. The extent to which that may have impeded negotiation between the parties, the fulsome production of material that was required to be produced and which may have assisted in the resolution of issues between the parties is not known.
What is manifestly clear is that Mr Park has had some very considerable assistance in getting his case in order to the extent that it is in order for this hearing and a very good job has been done in a short space of time to render the matter ready from his perspective and to comply with directions for filing. Notwithstanding that, however, there remain substantial issues in the proceedings regarding Mr Park’s alleged non-compliance with a number of requests for the production of information and I will deal with those allegations separately when dealing with the evidence of the parties.
The substantial asset of the parties is a home at [Q]. The husband is presently, and has since separation been, in occupation of the home.
The issues in dispute between the parties were complicated and compounded shortly prior to the hearing of this matter when each party made clear their desire to retain that property. That was not a position advanced by Ms Park until last week when these proceedings were, in fact, listed for hearing before Henderson FM. Due to listing complications in that week the matter could not be reached and, thankfully for the parties, the matter was able to be accommodated before me as a consequence of the resolution of other matters in my list. Thus the matter has been heard expeditiously and so that whilst the parties have certainly been put to some inconvenience and greater expense the matter is at least brought to a conclusion more quickly than might have been expected if a not reached case.
The parties’ proposals
As I have indicated the application and response filed by each party bears a light resemblance to what is actually proposed at hearing.
During submissions and consistent with an outline of case document, Mr Park proposed that he would receive an adjustment in his favour as regards contributions. Mr Park initially proposed that there would be no adjustment for s.75(2) of the Family Law Act 1975 factors. It was ultimately conceded that a modest adjustment per s.75(2) factors could be made in favour of the wife. It was, however, contended that even with a modest adjustment to Ms Park for s.75(2) factors that Mr Park should receive slightly more than half or, at worst, half of the net asset pool including superannuation.
Ms Park, for her part, proposed at the outset of the hearing that there should be a 70/30 per cent division in her favour. During the course of the hearing and in submissions that position was changed to a 75/25 per cent division. That is reflective of what was perceived, in the wife’s case, as being deficits in the husband’s evidence.
The evidence
I have read each of the affidavits that were identified by the parties in their respective case outlines.
There are no witnesses in this case other than the parties. They have each filed affidavit material and financial statements.
When the matter had been listed before Henderson FM each of the parties had filed an affidavit. Ms Park also sought to rely upon the affidavit that had been filed by her at the time that she had instituted proceedings and, in addition, an affidavit that had been filed by her on the working day prior to the commencement of the trial. But for the fact that Mr Park was, by that stage, represented that would have been of itself the basis for an adjournment of the proceedings with costs to ensure that due process could be afforded to Mr Park.
In any event the matter was not able to be reached on that occasion and the matter was put over. An application was made, appropriately so, by Counsel for the wife to further remedy defects in Ms Park’s affidavit material and leave was sought to adduce yet further evidence by way of affidavit and leave was granted to enable that to occur in a very short time-frame.
Mr Park was given liberty to respond to that material but chose not to. That may well be on the basis that a quantity of the material raised in the last affidavit was either not able to be answered by him or was perceived as not requiring answer as irrelevant to the case.
I hasten to add that I am not critical of Mr Park’s Counsel or Ms Park’s Counsel regarding the late affidavit material. It is common practice that Counsel come into matters late in the day and, as a consequence of their receiving material, assessing the relative strengths and merits of the case and assessing the evidence that has been put forward or has not been put forward but should have, that it is then sought to either adduce further oral evidence at the commencement of the hearing, or to very quickly prepare and put on further affidavit evidence.
I am somewhat mystified that Ms Park has had consistent representation and notwithstanding that fact her material, whilst alluding to a number of key and important issues that would be relied upon by her at hearing, has been somewhat defective as to the presentation of evidence. It has not advanced or assisted her cause.
In any event, the parties have proceeded on the evidence that they have filed and each of the parties have been cross-examined.
One of the unusual aspects of this case, having regard to the level of disputation between the parties and the absence of agreed facts with respect to many issues, is that the parties were able, at the commencement of the trial, to jointly tender Exhibit A, being an agreed list of assets, liabilities and superannuation. That list deposes that the assets available to divide between these parties is modest. Certainly, it is very modest compared to the costs that have, no doubt, now been incurred in conducting what is effectively four days of litigation.
The total net value of the asset pool, excluding superannuation, is $316,448. There are otherwise superannuation entitlements held by each of the parties, being in the case of Ms Park $64,471, and in the case of Mr Park about $9,000. During the course of the hearing, there was some real issue and substantial cross-examination of Mr Park regarding his superannuation entitlements, his failure to provide material with respect to same, and some conjecture as to when the superannuation entitlements that he does hold, might have accrued.
Since the conclusion of the evidence, it has become apparent that at some stage during the course of the proceedings, perhaps at the Conciliation Conference, a statement has been produced to the Court by Mr Park being a statement from [C] Super which indicates superannuation with a total value just under $9,000 as at 19 November 2010 being $8,973.86. The statement also suggests that Mr Park had joined that fund on 16 November 1999 and that his eligible service period commenced on 29 March 1993. Accordingly, it would appear based on that document that the $9,000 in fact was acquired and accumulated during the relationship. Whilst the statement was not referred to in any of the material filed by the parties it forms part of the court record and neither party objects to it forming part of the evidence.
There is some relative agreement between the parties as to the initial contributions of the parties. The agreement is, however, relative and partial rather than total.
It is asserted by Mr Park that he had, at cohabitation, total cash funds available to him in two separate holdings totalling about $140,000. It is conceded by Ms Park that there was cash of about $120,000.
I shall henceforth refer to the parties as parents as in relation to the history and chronology of their relationship, it is important to note that there are two children of this relationship, though no application is before this court to deal with parenting issues. Those children are [X], who was born [in] 2004 and who will shortly turn seven, and [Y] who was born [in] 2007 and who will later this year turn four years of age.
Mr and Mrs Park were married and, it would appear common ground, did cohabit prior to marriage that marriage having occurred [in] 1998.
It also appears common ground between the parties that they separated under the one roof in January of 2010 and that subsequently, in mid-2010 and no later than August 2010, Ms Park left the then-matrimonial home at [Q] and commenced to reside in rental accommodation with [X] and [Y].
Beyond those issues there is very little else that is agreed.
The chronology of the parties is somewhat simple.
Both parties are from an Indonesian extraction.
Mr Park was born [in] 1964, and is accordingly 47 years of age.
Ms Park was [in] 1972, and accordingly is 38 years of age.
Ms Park had not previously been married, whereas Mr Park had.
Mr Parkwas married to his former wife in 1990 and they separated and were divorced in 1996.
There are two children of Mr Park’s first relationship, being children [names omitted], both of whom live with their mother. The evidence would suggest, and it is conceded by Mr Park, that he has had limited involvement in those children’s lives, including having had no communication or time with them since property adjustment proceedings between he and his former wife were resolved. It would appear clear that Mr Park has made payment of very modest amounts of child support, albeit in accordance with assessments in place from time to time.
These parties met shortly before their marriage and were then married. As indicated, there is no dispute that at the commencement of the relationship, Mr Park had substantial cash funds compared to Ms Park who had little or no cash funds. It is conceded in Ms Park’s case that there were funds of $120,000. Mr Park as I have indicated suggests that the amounts were greater and more in the region of $112,000 plus an additional cash fund of $44,000.
Shortly after these parties were married [in] 1998, a home was purchased at [Q], being the major asset of these parties, being the property Property Q, [Q]. That property was purchased in the husband’s sole name and the husband contributed $55,000 from the cash funds that he held towards the purchase and the balance required to complete the transaction was borrowed by way of mortgage from the ANZ Bank.
In 1999, Ms Park commenced work with [W] as an [omitted]. Ms Park has been in employment with [W] since, albeit that her employment status has varied between part-time, full-time, casual and permanent.
At the commencement of the marriage, Mr Park was employed as a [omitted] and at about the time Ms Park commenced work with [W], Mr Park ceased to work as a [omitted]. He ultimately and some months later commenced working again as a [omitted] but that lasted only some months.
In 1999 Mr Park conceived that he should commence share trading. There is significant issue between these parents as to from where and how the capital used to commence that enterprise derived. However, it is clear that around that time share trading commenced. When it ceased in May 2000 the home at [Q] was transferred into the joint names of the parties. The circumstances of that trading are not the subject of any real evidence before this court upon which reliance can be placed.
In 2002, Mr Park commenced, although it was operated by way of partnership between the parents, a company “[O]”, which was involved in [omitted]. At that time a van was also purchased. Again, and whilst it is largely historical and perhaps not as relevant as it might be, the source of funds for the purchase of the van, is unclear.
During 2002, the parties also purchased a block of land or a home – it is unclear which – at [K]. The purchase price and the sale price of that property are in dispute between the parties, but ultimately it was conceded in Ms Park’s evidence that the figures as alleged by Mr Park were correct. However, not a great deal in my mind turns upon that, as the net consequence of the transaction was certainly the subject of relative agreement between the parties, the only dispute being whether net proceeds of $80,000 or $100,000 had been derived.
It may be that each of the parent’s evidence, there being no corroborating material to demonstrate which is more accurate, can stand together as there were certainly a number of expenses that would have been paid, and possibly including capital gains tax, after the completion of the sale. The only document that is tendered in evidence before this Court is a settlement statement showing the calculation of monies to be received at settlement.
The [omitted] business ceased at some time during 2003 and at that point in time it would appear that the van was sold.
The [K] property was also sold in the latter part of 2003 and as indicated, a profit made of between $80,000 and $100,000. There is some dispute between the parties as to whether the [omitted] business had ceased prior to that sale or shortly after it. But in any event, certainly by the early part of 2004, the business was very much historical.
During 2004, a property at [M] was purchased for $344,000. That property was purchased in Ms Park’s sole name as she was, by that time, earning an income approaching of $60,000 per annum and it was perceived as being tax-effective, for the purpose of negative gearing, for the property to be purchased in her name. At that time, Mr Park was not engaged in any substantial employment, and indeed it would appear that since the latter part of 2005, there has been no real, consistent employment engaged in by Mr Park other than a short period of time when he was operating a [omitted] business but that enterprise, as indicated, was short lived. There was also a short period of time in 2005 when Mr Park was employed by [omitted], but that ceased at about the time that Ms Park took a period of maternity leave around [X]’s birth. Mr Park also had a period of employment with [omitted] during 2005 but that would appear to be the last employment that
Mr Parkhas engaged in to date.
There is evidence before the Court that Mr Park has been offered employment commencing in a week or so’s time being employment with [omitted]. That offer of employment is relatively concrete, subject to meeting a number of requirements, including a police character check.
Ms Park has, throughout the above period of time, remained in employment with [W] and her salary has increased to the point that she is now in receipt of an income of about $80,000. There was some conjecture during the hearing regarding the stability of Ms Park’s employment, particularly as she is presently filling a position on secondment, and whether her position will be available to her on return. But she is for present purposes noted as a permanent employee and one would hope that this will remain the case.
The [M] property was retained by the parties at separation and it was sold earlier this year. Some real controversy arose between these parties regarding the manner in which the proceeds of sale of that property were dealt with.
The proceeds of sale were, by and large, received by the Westpac Bank and applied to substantially reduce the mortgage which encumbered that property, and which was also secured against the home at [Q]. However, a sum of $18,000 was retained by Ms Park. In addition, a refund of about $1,400 was received after settlement of the sale from the conveyancers who had acted for the parties, and following a complaint by Ms Park as to overcharging. Certainly, the bill with respect to the conveyance, which is in evidence, would suggest that the fees charged by the conveyancer were substantially in excess of that which might normally be expected. In any event, those funds of a little less than $20,000, have been retained by Ms Park.
The other critically important aspect of the matter is that during the relationship these parties advanced a sum of money, whether by loan or otherwise, to the wife’s sister who resides permanently in Indonesia. Again, the evidence in this respect is largely unacceptable and unclear. What is clear, however, is that the best evidence available to the Court is comprised in a document ultimately tendered by the wife and representing a schedule, it would appear prepared by the wife’s sister, as to the loan and repayments.
Ms Park was substantially criticised in the proceedings regarding the changes to her evidence that occurred with respect to this loan and the repayments of funds. Ms Park’s evidence did, indeed, change at different times. However, as was observed by her Counsel in closing submissions, Ms Park’s change of evidence was, by and large, an admission against interests as ultimately, each time that she amended her evidence, the amount that was repaid to her by her sister and received and retained by her increased.
The final affidavit filed by Ms Park on 22 June 2011, commencing at paragraph 26, deposed to funds being paid by Ms Park’s sister commencing 8 December 2009 and continuing through until February 2011. In February 2011 what is described as the payment of the final balance of the account, an amount of $71,500 or thereabouts, was sent to Ms Park as part of a total payment of $75,049.60. This amount was said to include a gift of $3,500 to “help her out”. The total payments that were received by Ms Park were actually in the order of $152,318.60, substantially in excess of the initial advance to Ms Park’s sister. However, the schedule that is tendered and now in evidence suggests that interest was earned upon those monies, that a number of transactions occurred with respect to those monies including, at one point in time, Mr Park’s brother requesting assistance by way of loan, and that money being lent out to him from the funds held by Ms Park’s sister.
The ultimate amount that was received by Ms Park was suggested by her to comprise repayment of principal and interest together with a loan by Ms Park’s sister to Ms Park of $15,000, a gift of $3,500, and a further gift of $9,500. On any reading, however, what was returned was greater than that which had been advanced, but is consistent with:
a)The schedule prepared by her sister, and
b)Ms Park’s evidence that it was always intended that the monies would be held in Indonesia where a higher rate of interest would and could be earned.
Those allegations would certainly appear to be borne out by the evidence.
During the course of the hearing, the substantial factual issues that gave rise to cross-examination related to:
a)The loan transaction and financial dealings between the wife’s sister and the wife;
b)The husband’s use, application and retention of funds held at cohabitation and the benefit of his continuing occupation of the matrimonial home;
c)The wife’s retention and receipt of funds following separation;
d)The treatment and relevance of the husband’s share dealings during the relationship;
e)The financial and homemaker and parent contributions made by each of the parties during the relationship;
f)The post-separation contributions of each party;
g)The husband’s initial contributions and the weight that should be attached to them;
h)The future needs of each parent and the balancing and weighting of relevant s.75(2) factors; and
i)The husband’s borrowing capacity particularly in light of the fact that each party seeks to retain the home.
Evidence, disclosure and credit:
Each parent raised substantial issues regarding the other’s alleged non-disclosure, lack of candour and frankness and criticisms regarding post-separation dealings and use of assets.
Material produced by the husband could fairly be described, in its most euphemistic, as Spartan. The husband’s disclosure throughout the proceedings, but remembering that for the majority of the proceedings he was self-represented, was far from satisfactory. Those comments are not intended to suggest for one moment that a self-represented party has any lesser obligation to give full and frank disclosure and to do so promptly than a party who is represented, but purely to highlight that one cannot point or attribute such deficiencies to an inadequacy of advice that he has received from those now representing him. He simply was not represented and relied upon his own advice which may or may not have been misplaced. The husband’s disclosure and lack thereof creates a number of difficulties for him and the Court.
Firstly, it means that the wife to a large extent and in relation to what is alleged by the husband has no means of responding.
Secondly, and perhaps more importantly it means that whilst the Court has the benefit of the parties’ agreement as to the present composition of the asset pool, there are a number of significant gaps in the evidence, and particularly relating to the issues regarding share trading, and the use or application of funds alleged to be held by Mr Park at separation, above and beyond the application of funds conceded by Ms Park, and more recently, the application and use of funds received from the sale of the property at [K].
Most of the financial information regarding the husband’s financial position came out during his cross-examination. During cross-examination, it would be fair to say that Mr Park was at times confused, but at others and having no rational basis for confusion, was evasive and non-responsive in the answers that he gave to questions. This included a number of issues that should and could have been clearly conceded as there was no possible means of there being alternate propositions than those that were being put to him. They particularly related to a line of cross-examination that could fairly be described as an attempt to elicit, and successfully so, similar fact evidence regarding Mr Park’s past relationship and relationship with and support of his children from that relationship.
It was suggested to Mr Park that following the breakdown of his first marriage that the home that was then owned by him at [A], and which had been the matrimonial home of he and his first wife, was sold by him and all of the money sent to Indonesia. Mr Park agreed with this. It was suggested to Mr Park that his motive, or at least one of them for doing this, was to stop his wife receiving any dollars from the sale of the home. This was vehemently denied.
But when Mr Park was clearly asked how much his first wife had received from those monies he indicated, probably for the first and only time in his evidence quickly and concisely, “nothing”.
There were two children of that relationship. It was suggested by
Mr Park that when he was working, which ultimately transpired to be up and until 2005 at the very latest, he was paying child support of about $375 a week but that he had not, since the resolution of financial issues between he and his first wife, seen his children at all, and suggested that that was on the advice of his then Barrister that he should not attempt to see them. I do not accept that evidence. I certainly accept that there has been no communication or time with those children, but to assert that he would be advised by any person that is so, without any other elaboration, is difficult to accept.
The above is entirely consistent with what has happened with
Mr Park’s finances as best they are known since 2005. There is precious little information regarding Mr Park’s finances. There are, at the very least, a small number of tax returns for Mr Park. They suggest that during the 2005 financial year that Mr Park had a disclosed taxable income of $15,000, but then had no taxable income at all until 2008 when there was a taxable income of $2,444. In 2009, the last year for which there is any information, Mr Park had a taxable income of $5. The tax returns also suggest that Mr Park has an existing, and carried forward, capital gains loss in excess of $93,000. That is the best one can point to in attempting to have any idea as to what happened with the period of time when Mr Park asserts that he was earning money by share trading.
Clearly, one or more enterprises, whether the [omitted] business, the [omitted] business, the [omitted] business, or the share trading have experienced substantial losses because $93,000 of capital loss remains, irrespective of whether any of that has been apportioned against capital gain made.
With respect to share trading not a single piece of paper is produced - not a bank statement, not a share transfer document. It would appear little or no attempt has been made by Mr Park to reconstruct any of that period of time, which would have some significant relevance. Not relevant in the sense that I am urged in any fashion to draw a Kowaliw & Kowaliw (1981) FLC 91-092 inference with respect to the $93,000 capital loss. It is conceded and appropriately so, and a credit to
Ms Park and her Counsel, that the transactions that have occurred during the relationship are transactions that are “done and dusted” and should not be the basis of any suggestion of a wastage argument.
It may have been open to Ms Park to run that argument with other evidence but there is no evidence produced by either party that would establish such an argument.
What otherwise arose from Mr Park’s cross-examination with respect to the share dealing is that when it was perceived by him that he was being criticised for having made such a substantial loss from that endeavour, he sought to apportion blame to Ms Park, and in a fashion which I consider and accept, is highly exaggerated and disingenuous. It was suggested by Mr Park that he was, indeed, share trading and doing so very successfully to the point that on his evidence, which I took pause to clarify with him lest I may have misheard, he asserts he was making a profit of “…up to $35,000 a day”. Mr Park goes on to describe that Ms Park, being dissatisfied with that level of profit, equating to nearly $2 million dollars a year by extrapolation, insisted that he engage in more risky strategies, and it was only as a consequence of Ms Park’s insistence on that course of action that losses were ultimately incurred.
The above is suggested notwithstanding Mr Park’s insistence, in response to any question regarding any financial document produced or not produced by him, that Ms Park was solely responsible for bookkeeping and financial management and decisions and that she must and should be blamed for the absence of documents and the like. That is suggested to be so notwithstanding that Mr Park conceded that during the relationship, all documents of a financial nature were kept in a filing cabinet in the home and that at separation, and indeed at
Ms Park’s leaving of the home, the filing cabinet and its contents were still there. But again when it was suggested that he could then have produced those documents, he suggested that Ms Park had retained keys to the home and it had taken him some weeks to change the locks on the filing cabinet and the house, and that by inference, I can take that he is suggesting that Ms Park has somehow removed those documents and rendered it impossible for him to produce them. Again, I do not accept that proposition.
The more serious issue that is raised by Mr Park’s blatant non-production of documents that would advance his case is that he has not, in any fashion, attempted to or in fact discharged his obligations as to disclosure, and to the extent that there is now certainty as to the present asset pool but uncertainty as to transactions that have occurred in the past, transactions involving some hundreds of thousands of dollars, I am satisfied that by reference to authorities such as Weir & Weir [1993] FLC 92-338, Black & Kellner [1992] FLC 92-287, Milankov & Milankov [2002] FamCA 195 and M & M [2006] FMCAfam 424 that wherever there is some doubt in that regard, I should prefer the evidence of Ms Park.
As I have indicated, the only aspect of Ms Park’s evidence that was criticised as regards her truthfulness or accuracy, other than trifling matters such as her having asserted different values for the purchase and sale of the [K] property, but ultimately an accurate recollection of the amount of profit, is with respect to the dealings with her sister in Indonesia.
Legislative Framework
The Full Court has been clear for many years through authorities such as Ferraro& Ferraro (1993) FLC 92-335 and AJO & GRO [2005] FamCA 707 that the Court can and must adopt a four-stage approach to fulfil its obligations under Part VIII.
One must commence by identifying the asset pool, which is described by the Full Court in authorities such as Burgoyne & Burgoyne (1978) FLC 90-467 as comprising the assets at the date of hearing without any consideration, at that point in time, as to acquisition or arguments as to wastage or disposal. Indeed, the first step is fundamental to the process, and as the Full Court described in Burgoyne & Burgoyne, it is impossible for the Court to determine whether any particular order is just and equitable without first determining the nature and extent of the property of the parties at the time that the court is making orders. The only reservation I have in that regard is that it may be that there are other assets, or indeed other liabilities, other than those included in the joint schedule.
But as consequence of the matters to which I have referred and by reference to authorities such as Black & Kellner, Weir & Weir, Milankov & Milankov and M & M, I am not in a position, due to the husband’s lack of candour in disclosure and lack of frankness in his evidence, to be satisfied whether they exist or do not exist, and I am left to do the best I can on the known asset pool. Again, the Full Court has been clear that my jurisdiction is limited to what is known and the best I can do is deal with what is known having regard to uncertainties that might exist.
What is the asset pool?
As I have indicated, the asset pool is largely agreed. Based on the schedule tendered by the parties as Exhibit A it comprises the home, which has equity based on the valuation that is now agreed, and after deduction of mortgages, of $164,090. The husband has jewellery of $590, savings with the ANZ Bank of $1,000, a Honda Accord Euro motor vehicle with a value of $13,500, home contents asserted to have a value of $5,000 so that the husband presently has in his possession, tangible assets totalling $20,090.
Ms Park has jewellery with a value of $7,197 and a number of bank accounts comprising:
a)a Westpac eSaver account with a balance of $2,664.12;
b)a Westpac Choice account with a balance of $23,122.29;
c)a Westpac eSaver account with a value of $53,090.78;
d)An additional Bank account of $113.62
Ms Park otherwise has [W] Shares, as a consequence of her employment, with a value of $32,048.31. It is indicated in Ms Park’s evidence that not all of them are immediately saleable, but that it ascribed as their value. Ms Park also has a Honda Civic motor vehicle with a value of $18,000, household furniture acquired post-separation with a value of $5,000, and legal fees expended by her, which she agrees to the add-back of, with a total value, it would appear, of $20,113.62
On the basis of the above the wife has the benefit, real or notional, of $138,349.74 in tangible assets. The wife also has a visa card debt of $6,081.73, and there would appear to be no controversy that this would be deducted.
That produces a total net tangible asset pool, without regard to superannuation, of $316,448.
The superannuation entitlements of the parties, as I have indicated, are in the wife’s hands, $64,471, and in the husband’s hands $9,000, creating total superannuation of $73,471.
There remain issues which ultimately do not impact upon the decision I am called to make regarding the expenditure of profits from [K], the extent and financial consequence of the husband’s share dealing during the relationship, or possibly continuing, the sale of the [M] property, and the use and retention of funds by Ms Park, the husband’s superannuation accumulation and whether this occurred during the relationship or not, but that issue is now dealt with by the document produced on the file, and the extent and weight to be attached to
Mr Park’s initial contributions.
Sale of the [M] property and use of funds
It is contended, at least by inference in Mr Park’s case, that some adjustments should be made whether as regards a notional add-back of an asset, the assessment of contribution, or the assessment of future financial needs and section 75(2) factors, having regard to the retention by Ms Park of $18,000 from the sale of the [M] property.
The case law dealing with such issues commences, to a large extent, with the case of Townsend& Townsend (1995) FLC 92-569 and continues on more recently to the Full Court’s decision in AJO & GRO.
The add-back of property is certainly open to this Court, however, it is not automatic. It is not sought to add back that amount and by including a net figure in the pool of assets. However, what is sought is an adjustment to compensate Mr Park for the fact that Ms Park has had the use and benefit, it is suggested deceptively, of those funds.
In Milankov & Milankov, the Full Court considered several circumstances, well identified by prior cases, where, in order to do justice and equity to the parties, the value of assets which no longer exist need to be notionally considered to determine what a fair share of the existing pool of assets should be. Frequently, this involves a notional consideration of assets, which had been in the possession of one of the parties at some time after separation, but which had been dispersed for that party’s own use. That decision goes on to address the types of add-backs that might be considered. It is also suggested that the inclusion of notional add-backs ought not to be seen as a method of increasing the size of the pool. One cannot make an order adjusting an interest in an asset that does not physically exist at the time of hearing but the Court can factor its value in to the ultimate decision.
In AJO & GRO the Full Court was even clearer in identifying specific categories of add-backs quoting:
a)With respect to legal costs - DJM and JLM (1998) FLC 92-816;
b)With respect to a premature distribution of matrimonial assets - Nicholson CJ as he then was in Townsend & Townsend, and also referring to Baker Js decision in Kowaliw & Kowaliw. However, it is perhaps germane to note that Baker Js decision in Kowaliw is prefaced upon the caution, as indeed was Nicholson CJs decision in Townsend & Townsend, that add-backs need not be automatic but they would arise if and only if a party has retained to their own benefit, and in a fashion that would be inequitable to the other party, property, or income flowing from it. Both of those decisions identified circumstances, such as those that occur in this case, where it would be inappropriate for such an add-back to occur.
In that regard one must view the context of this case. Ms Park’s evidence is that she had retained those funds and had requested to retain those funds to assist her in meeting living expenses and payment of ongoing expenses in relation to the mortgage that had encumbered [M]. It is to be remembered that upon its sale that mortgage was not fully discharged. The [M] mortgage, if it might be referred to as that, continues on with payments required of Ms Park of a little over $800 a month.
Ms Park, since she physically left the home with the two children just short of twelve months ago, has lived in rental accommodation paying $450 a week rent, has received not a cent of child support, has had the very substantial full-time physical care of both children, to which I will return, and has otherwise been left to support herself without any assistance from Mr Park.
By contradistinction Mr Park has remained in the matrimonial home to the exclusion of Ms Park. He has, by and large, retained all of the furniture and contents within the home. Ms Park has been forced to borrow money to replace furniture and establish a home for herself and 2 children and gives evidence of expending about $15,000 doing so.
Importantly, whilst Mr Park has not been paying child support, he has also had the benefit of:
a)Cheap accommodation. Mr Park has, until quite recently, been paying $350 a month with respect to the mortgage which directly encumbers that property;
b)The [M] mortgage is also secured collaterally against the matrimonial home. It had payments until its sale of $3,277.84 per month. Against that, the [M] property was tenanted and income received from defence housing regarding the tenancy. However, the rental that was received was split between the two mortgages and so that $1,270.77 was paid into each mortgage account. That meant effectively, that the rental income from [M] was meeting mortgage payments for the home that Mr Park lived in, whereas Ms Park was left to find the shortfall of about $2,000 a month, as well as paying rent and still continues to have the obligation of about $800 per month. Mr Park’s payments with respect to the home have recently increased to $500, and for the last payment made, $600 per month.
c)Whilst having occupation of that property, Mr Park has also had the benefit of having two “friends” move into the property and assist with expenses. Whether that is categorised as paying board or otherwise is unclear, but certainly from the evidence given by Mr Park, and it is to be noted that the first time that this was raised or conceded by Mr Park was during cross-examination, he has received the benefit of not less than $1,170 per month from the financial assistance provided by those people occupying the property. From that $1,170 Mr Park has, as indicated and until recently paid $350 a month on the mortgage. As a consequence of that, Mr Park’s expenses in relation to housing himself has been $350 per month, whereas Ms Park’s expenses for housing herself and the two children of the relationship for whom she receives no financial support has been $1,950 a month, and in addition and until recently, she was also paid $2,000 a month for the shortfall in relation to the [M] mortgage and continues on an ongoing basis, to pay over $800 a month.
Ms Park’s expenses in supporting herself and the children have been nearly $4,000 a month more than Mr Park’s and in those circumstances, I am entirely satisfied that any funds that Ms Park has expended from either the funds retained from the [M] property and its sale, the refund of monies from the conveyancer, or indeed from funds that have been returned being repayment of joint monies and interest from her sister in Indonesia, are spent entirely appropriately in meeting living expenses, and are amounts that Mr Park should notionally contribute to, as representing some form of financial assistance that he has personally failed to make.
Expenditure of funds from [K]
There is nothing at all that indicates where any of the money from the sale of that property have gone. It would be tempting, having regard to the flaws and deficiencies of Mr Park’s evidence, to draw an inference that he perhaps retains some or all of it. However, set against that is the capital loss incurred by Mr Park with respect to share dealing or other dealings. That may suggest that the highest the Court can place it is that the funds may have been applied to and lost in share dealing.
That lack of evidence falls solely at the feet of Mr Park. He has produced not a single document about his share transactions, could not assist the Court with the details of any share transaction, including the date, the amount, or the nature of the transaction. In all of those circumstances, I am satisfied that I cannot make any substantial adjustment regarding contribution or notional add-back, as might be suggested by Kowaliw, but can take that lack of evidence and loss into account, as previously indicated, as an overall credit finding in favour of Ms Park.
Sale of [M] and use of funds by Ms Park
I have already addressed above the basis of how I propose to deal with those funds. In all of the circumstances I do not consider that it would be just and equitable to treat those monies as other than reasonably expended by Ms Park for her support and that of the children of the marriage.
Remaining Issues
The husband’s superannuation and its accumulation is now clarified.
The other outstanding substantial issue relates to Mr Park’s initial contribution and how that should be treated by this court.
As indicated, Ms Park does not dispute that Mr Park had about $120,000 at the outset. However, the only evidence that exists as to how any of those funds were used relates to the $55,000 that was applied towards the deposit of the home at [Q]. There is, again, no evidence other than the assertion, and certainly no corroboration by way of documentary proof or otherwise, that any of those funds at any time found their way into joint finances, or found their way to providing benefit to both parties or their children.
It is asserted by Ms Park in her evidence that at the commencement of the relationship Mr Park had and, indeed, for a good part of the relationship and possibly continuing to today, maintained an account with the National Australia Bank. That much would appear clear from Mr Park’s own case at least that at some point in time he maintained such an account.
But the difficulty that arises from Mr Park’s case is that he has produced not a single document that suggests when that account ended, if indeed it has, what became of the funds in it, or otherwise. All I am left with is the concession that $55,000 was provided towards the deposit.
There is real dispute between these parents as to whether all or any of the remaining funds were applied towards paying for what one can only describe as a large and elaborate wedding in Indonesia. It is suggested by Mr Park that he expended a substantial amount of his funds in meeting the costs of the wedding. In any event, if he did, it is something they both enjoyed, one would hope.
There is no concession by Ms Park that this expenditure occurred. She asserts that the wedding was paid for by Mr Park’s brother. It may be that it was paid for by Mr Park’s brother using funds that he held on
MrPark’s behalf because it was clearly asserted by Mr Park that he transferred money to his brother from the sale of the property at [A]. But, again, nothing is known about that because Mr Park has not chosen to share that information with anybody.
Ms Park goes on to suggest that not only was the wedding paid for by Mr Park’s brother but it was on condition that any cash that was received from any of the 750 wedding guests would be provided to charities nominated by Mr Park’s parents - presumably, although it is not known, to provide them with some financial benefit or at least karma.
The $55,000 used as a deposit for the home is, as I have said, the only amount that can be corroborated, is conceded, or can be proved.
Reliance is placed by Mr Park, with respect to that initial contribution, on the Full Court’s decisions in Pierce & Pierce [1998] FamCA 74 and SJS & NS (2005) FLC 93-214. It is clear that an initial contribution is not, and cannot, be considered as a special contribution but purely as a contribution made at a particular point in time and which must be given regard and weighed against all other contributions at all other times and in all other fashions. On that basis I do not accept, having regard to the totality of contributions to date, that such initial contribution favours Mr Park.
Contribution:
It is conceded that Mr Park had much greater funds at the commencement of the relationship but for the above reasons I am satisfied that the only amount that I can safely take into account as having been expended for the benefit of these parties is the sum of $55,000.
By reference again, to Pierce& Pierce and SJS & NS I must balance that initial contribution against all others.
Ms Park has raised in her case a Kennon& Kennon (1997) FLC 92-757 argument relating to her having contracted herpes simplex from
Mr Park. Mr Park is silent as to the circumstances suggested by
Ms Park in two affidavits, and on that basis if nothing else, I am entitled to and do accept Ms Park’s version of events.
Whilst the Kennon doctrine, if I might call it that for present purposes, has been the subject of recent judicial comment I am satisfied that
Ms Park has not, on the evidence that she has led, made out a case to suggest that either that circumstance, of itself, has given rise to her contributions being made more onerous, (although I wholeheartedly accept her evidence that it has caused her some distress), or that this, of itself, would entitle her to a further adjustment of contribution. But I am conscious that it is a relevant circumstance to weigh into the overall mix of assessing these parties’ contributions, and I do so on that basis.
The Full Court in decisions such as DR & CAJ [2005] FamCA 213 have been clear that post-separation contributions can have equal, if not more significant, weight than initial contributions. It is asserted in
Mr Park’s case, and quite eloquently so by his Counsel, that post-separation contributions, whilst they clearly favour Ms Park, are for a limited period of time as these parties only separated in August of last year. But again, in my mind, one must look at the context of those contributions.
It is asserted and not disputed by Mr Park that Ms Park left the home in August, 2010 with both of the children, then aged five and two, and since that time she has been required to:
a)Find and maintain rental accommodation at substantial cost of $450 per week (compared to Mr Park’s $350 per month);
b)Acquire furniture, as she left with none, and Mr Park retained all furniture and contents of the home; and
c)Care for and maintain these children with little if any support, financially, emotionally or physically from Mr Park.
A matter of great moment in cross-examination was the time that
Mr Parkhas spent with these children. Ordinarily that would not appear particularly significant in property proceedings but, in the context of this matter, it has greater significance than might otherwise be the case for two particularly important reasons. Firstly, there are clear records produced, Exhibits W6 and H2, regarding Mr Park’s time with these children. The most important of those is an admission against interest in H2, a diary maintained by Mr Park from 7 November 2010, or sometime thereabouts, to the present, as to the time that he has spent with each of these children.
Mr Park asserted in his material that he is not required to pay child support as he is not presently employed and, based upon his being in receipt of Centrelink benefits and the fact that he has the children in his care for 14 per cent of the time, representing one night per week, that his assessment is nil. I do not cavil with that as a construction of his administrative obligation.
However, the pre-amble and the objects and principles of the child support legislation makes clear that parents have and share equally, responsibilities to support and maintain their children. Mr Park’s diary suggests that between 7 November 2010 and the present, he has had the children in his care for 21 nights. That would equate to, over that period of time, 8.75 per cent of the time. But the plot thickens.
Ms Park’s evidence, which was not significantly challenged in cross-examination and to some extent would appear to have been conceded by Mr Park, (although again he blamed Ms Park for things being as they were), is that when Mr Park does indeed have the children, this tends to be, with some exceptions, for one night at a time and generally from about 8pm on a Friday until some time the following Saturday.
Ms Park asserted that this was on the basis that whilst she wants and would prefer Mr Park to collect the children from day care because she is working all day and places the children in care whilst working and pays for it and it would be of assistance to her and increase the children’s time with their father. Mr Park insists that Ms Park collect them from day care, feed them, bathe them and have them ready for bed before they are delivered to him. Again, I accept that evidence.
The consequence of the above arrangement is, as had been remarked consistently by the Full Court with respect to both Part VIII proceedings and child support proceedings, that the payment of child support is but a contribution towards meeting the cost that is incurred in maintaining children. The variation and amendment of the child support formula and other administrative provisions in 2006 was prefaced upon recognising the contribution - financial, physical, and emotional - of a parent having children in their care. That is absent in Mr Park’s considerations it would appear.
Records are produced by the children’s child care centre, which would suggest that prior to separation the children were taken to and from the child care centre and signed in and out by Mr Park a little less than 14 per cent of the time compared to a little over 86 per cent of the time by Ms Park. The evidence in that regard suggests that there are a number of possible explanations all relating to the fact that the parties only had one motor vehicle. Mr Park’s, whilst Ms Park was attacked for changing her evidence in relation to monies from Indonesia, changed his evidence substantially regarding this issue.
Mr Park initially asserted that Ms Park took the car, drove it to the station, parked it there all day while she was at work and then drove herself home in the afternoon and that is why she was responsible for taking the children to and from day care notwithstanding that he was home full time to care for them. Mr Park’s evidence then changed to suggest that, in fact, more often than not, he drove Ms Park to the station and they would be in the car together, but it was more convenient for Ms Park to take the children in while he stayed in the car.
The difficulty with that variation of evidence in a very short space of time is that one is left with the clear impression that the variation is disingenuous. The other difficulty is that it is asserted by Mr Park that for a substantial period, essentially from the birth of [X] – the first of the two children – that he was not in paid employment but was the full time home maker and parent, and Ms Park filled the role of being the primary income earner because of her greater qualification and ability to earn in the finance sector. Ms Park does not accept this. She certainly accepts that Mr Park was not in employment and was home. But she asserts that:
a)Mr Park would often call her at work and require her to return home to assist with the care of the children, and
b)The children were not being adequately cared for, and complaints raised by Mr Park with her that he did not wish to care for them, and as a consequence she had enrolled the children in child care.
The enrolment in child care was initially for one or two days at a time, and Ms Park’s evidence was that she was able to work from home for the remaining days. That attendance has now increased since separation to five days a week. What is absent, however, notwithstanding
Mr Park’s evidence that I accept and which is the subject of the medical certificate attached to his affidavit, (which whilst in not in proper form I have had regard to), that he has been impacted by the separation, is an approach by him to assist in caring for the children. Being impacted by the separation is also not a one way street. I am certain Ms Park has been impacted by the separation but she has, as it were, soldiered on. She has maintained her employment, maintained arrangements for the children, got them to and from school, and done all of that with no physical, emotional, or financial assistance from anyone let alone Mr Park.
Mr Park has been in a position, during that time, to make enquiries about that employment and to volunteer on a regular basis with Dads In Distress. Indeed, Mr Park’s evidence is that on one occasion he had not attended events at the children’s schools because he was busy volunteering with Dads In Distress, no doubt giving advice to other father’s who were anxious to see their children, whereas Mr Park could well be seen to have his cake but not wanting to eat it.
Ms Park was cross-examined, presumably on instructions, about the arrangements she would propose. I infer that this was intended to suggest that she was oppositional. Ms Park suggested quite clearly she would have no difficulty with anything up to an equal time arrangement, but Mr Park has not taken any active step to do anything about increasing his time.
Indeed, the evidence in that regard from Ms Park, which I find most compelling regarding both the present and likely predictable future of assistance in the care and maintenance of these children, relates to a period when Ms Park was travelling to Canberra for two days and sought Mr Park’s assistance in relation to the children’s care during her trip. Mr Park declined. Ms Park subsequently ascertained that she could obtain independent child minding but it would cost her $250 for the period. Only when that amount was offered by Ms Park to Mr Park did he agree to take them. That in my mind is a damning indictment upon Mr Park’s commitment as a parent and his commitment to his financial responsibilities which are reflected not only through payment of child support but by putting himself there to be available to assist in the care of these children.
If Mr Park had thought to do that in the past ten months, that may have assisted Ms Park in not having quite the level of before and after school care and day care cost that she has had, but if nothing else it would have simply made life easier, let alone enabled allowing his relationship with these children to continue.
The grave and manifest difficulty that flows from the above evidence is that I am asked to accept that Mr Park was the primary carer for these children during the relationship and, accordingly, made the primary homemaker and parent contribution during the relationship. There was no concession in that regard. I have Mr Park’s post-separation behaviour to reflect upon as to his commitment to that care. The two cannot sit together and I reject his evidence.
Also in the context of post-separation contribution and by reference to DR & CAJ, not only is Ms Park’s financial position somewhat disastrous and she is highly financially stressed but Mr Park has been in a position where he has not been troubled or burdened with the care of his children, has had the benefit of paying only $350 per month (or well less than $100 per week) for accommodation and has had two friends or boarders paying him nearly $2,000 a month to assist him to pay his other expenses. Mr Park has been able to pursue volunteering with Dads In Distress and other activities of his choice whilst the wife has been left, as I have indicated, to soldier on. She has not had the ability to collapse and melt down and say “separation is hard for me and I am not coping and I feel stressed, and distressed, and depressed” as Mr Park would appear to.
Ms Park has simply had to battle on, including, in accepting her evidence, with the emotional stress and trauma that she experiences as a consequence of her infection with a communicable disease which, certainly the evidence would suggest, Mr Park was fully aware he had and knowingly or uncaringly passed on. If so, potentially, such actions would also constitute a criminal offence. But that is not a matter for me to determine and not within my jurisdiction.
Mr Park has had opportunity to make arrangements to provide assistance, financial or otherwise, to Ms Park, and has simply declined or refused to do so.
A telling portion of his evidence, arising from cross-examination as to who should have the opportunity to retain the home, indicates
Mr Park’s attitude. When it was suggested to him that it might be best for the wife and children if they were allowed to return to the home, he indicated “No I will not agree to that”.
When it was suggested to Mr Park that it would be best for the children that they be allowed to come back and live in the house, his answer was disingenuous at best indicating, “Sure, they can come and live with me”.
This is a man who has spent less than 10 percent of the time since November of last year with his children, and who has had to be bribed, through payment of $250, to mind them for two days whilst his wife attended a work-related activity in Canberra. That to me suggests that I can with great accuracy, predict that this attitude will continue in the future and it will accordingly, and in the vernacular, “come back to bite Mr Park”, in terms of s.75(2) adjustment.
Having regard to all of the above, I am satisfied that certainly Mr Park introduced greater funds, at least to the extent of the $55,000 that went into the deposit for the home, at cohabitation.
I am satisfied that during the relationship both parties contributed, but I am satisfied that Ms Park’s contribution was greater.
Post-separation, Ms Park’s contribution clearly outweighs Mr Park’s and substantially so. Only due to the concessions made, appropriately and sensibly by both counsel in their submissions, and having regard to the duration of these parties’ marriage, I would propose to temper my findings as to contribution but I accept, at the very least, Ms Park’s contribution would, could and will be assessed at 50 per cent, but I would be entitled to make it higher. Lest it be suggested that in relation to s.75(2) adjustment that I am in error, I am satisfied that Ms Park is entitled to an adjustment for contribution of not less than 50 to 55 per cent.
Section 75(2) Adjustments
The adjustment that I propose to make in Ms Park’s favour, I am satisfied, would appropriately be 15 to 20 per cent. I am urged in
Ms Park’s case to make it slightly greater. However, having regard to all of the issues that present for these parties, I am satisfied that this is the appropriate range, and I have expressed it as a range to avoid any disquiet in relation to the finding of contribution.
The totality of the two findings as to contribution and s.75(2) adjustment will result in a 70/30 adjustment in Ms Park’s favour.
Age and state of health of the parties
In relation to section 75(2), it is asserted by Mr Park that he is of greater age. That is clearly so but not by any substantial amount.
It is asserted by Mr Park that he has health difficulties that will interfere in his obtaining future employment. The difficulty with that proposition, however, is that there is no evidence in proper form to support that contention, and that absence of evidence is entirely
Mr Park’s fault. The material was not put on and no adjournment was sought to do so. Secondly, Mr Park has had no difficulty at all securing an offer of employment from [omitted]. The only impediment, potentially, to his taking up that employment is his own will, or failing to pass police checks. Accordingly, it is difficult for me to accept that there is any impediment that would interfere with future employment.
Clearly, however, Mr Park is not capable of earning as much income as Ms Park, although if I accept his evidence, which I did not, with regards to his success at share dealing, he has the potential to make millions of dollars per year, given the appropriate capital. He will certainly have some capital and should he choose to speculate on the stock market with it, that is a matter for him. If I am wrong in rejecting his evidence that he earned up to $35,000 a day, he may well soon return to the Court to wave money in my face and show me the error of my ways.
The income, property and financial resources of each of the parties
This factor is relevant as is their physical and mental capacity for gaining full employment. As indicated, I am satisfied both parties have capacity for gainful employment.
I accept the difficulties that are expressed by Ms Park regarding the infection she has received during the relationship as a relevant consideration. Whilst it will not preclude her employment it will have some potential to cause her difficulty in taking leave and the like. I factor that issue into the equation on that basis rather than accepting her Kennon argument.
Income earning potential
In terms of income Ms Park clearly earns more money than Mr Park and will, in all probability, continue to do so. On one view, that may well mean that Mr Park might be entitled to an adjustment in his favour as his present income is significantly less. The difficulties with that proposition, however, are:
a)Mr Park, if he is not earning any substantial income at present, and I do not accept that this is so - he earns income from the boarders if nothing else, which is tax free and augments the income he receives from Centrelink. He has the capacity to earn more, and
b)The offer of employment that he is to take up in the next few weeks will entitle him to an income of about $60,000 per annum which is not that different to Ms Park’s.
Whether either party has the care of a child of the marriage under 18
Ms Park has the care of two children aged six and three years respectively. She will have their care, it would seem, without any dispute, until they attain their maturity. Accordingly for not less than
15 years, Ms Park will have these children to support and based on the demonstrated track records since separation and indeed for periods prior to separation, Ms Park will be doing it alone.
The child support agency will no doubt issue an amended assessment for Mr Park once he obtains employment and should he take up that offer of employment. It is a matter for Mr Park whether he does or does not. But if he does take it up, the operation of the child support formula as it is presently drafted will not provide for payment of any substantial amount. There is no agreement as to the amount that would likely be assessed, and I do not make any finding as to what that amount would be. But as Ms Park earns at least $20,000 a year more than Mr Park, that will substantially reduce her entitlement as she earns a significant proportion of their combined incomes.
The commitment of each of the parties to support themselves and any other person including a child
Both of these parents have a duty, legal and moral, to support two children who are in their infancy. Mr Park has demonstrated his attitudes towards meeting that responsibility. He has done nothing towards discharging it and to the extent he has taken any active step this has been to complain of Ms Park’s deceit in retaining funds from the sale of the [M] property which she has used and applied towards her support and that of the children.
Ms Park has demonstrated an exemplary attitude towards meeting her responsibilities. She has supported herself and the children, she has continued in full-time paid employment, notwithstanding the difficulties of separation and otherwise, and she has continued to service substantial debt, including the shortfall on the [M] mortgage both in the past and ongoing and until that is refinanced or discharged in the foreseeable future.
The responsibility of either party to support any other person is not relevant
Neither party, it would appear, has cohabited in a relationship since separation although Mr Park has two people with whom he shares accommodation and which improves his overall financial position not that this has assisted these children.
The eligibility of either party to receive a pension.
Mr Park is presently receiving a pension.
Ms Park has an entitlement to superannuation, but it is not accessible by her for in excess of twenty years unless she is permanently incapacitated.
During the course of the hearing material from Ms Park’s superannuation fund was tendered which indicates that she is entitled to a payment of a little over a million dollars in the event of her total and permanent incapacity from employment. I do not accept that this represents a financial resource to her. The funds are certainly not presently in her hands and, if such payment were to come into effect in the future, it would be with the price to pay for Ms Park of her being totally and permanently incapacitated.
Similarly, Ms Park has long-service leave entitlements with an alleged value in the region of $22,000. I am satisfied with respect to those long-service leave entitlements and having regard to authorities such as Bourke& Bourke (1993) FLC 92-356 and Gould& Gould (1996) FLC 92-657 that they are not and cannot be taken into account by me today as financial resources as there is no suggestion that such leave will be taken other than as leave in due course, and accordingly, will not represent any windfall whatsoever.
Whether the parties have separated or divorced, maintaining a standard of living that in all of the circumstances is reasonable
I am satisfied that since separation Mr Park has enjoyed a better standard of living, at least financially, than Ms Park. Ms Park has certainly had far greater income but she has borne the brunt of expense and that has included the sole responsibility for the financial support of these children.
It is despicable and abhorrent that Mr Park has lifted not a finger to make any attempt to assist in their care, and whilst I can be as critical as I like of Mr Park in that regard, the most important element of that is that it is the only basis upon which I can predict the vigour he will bring to meeting his legal and moral responsibilities in the future. To say the least that likelihood and that demonstrated capacity is unimpressive.
The extent to which maintenance is sought is not relevant.
The effect of any proposed order on creditors is not relevant. The orders I propose to make will see a refinancing of all mortgage debt, which is the only significant debt of these parties, and in any event, those debts are secured.
Ongoing spousal maintenance is not under consideration.
The extent to which a party has contributed to the income, earning capacity, property or financial resources of the other
It is not suggested by either party that they have contributed to the income or earning capacity of the other. The skills which Ms Park brought to the relationship are those which she uses in earning her income at present.
The financial dealings of the parties, and the extent to which either parties’ conduct or otherwise has affected the present pool, is entirely unclear for reasons described above.
The duration of the marriage and the extent to which it has affected earning capacity
It could be argued by Mr Park that the relationship has affected his earning capacity as he has been out of paid work now for some six years. I do not accept that contention.
The decision by Mr Park to leave what was then secure employment to pursue self-employment was entirely his. There was some controversy between the parties as to the extent to which Ms Park connived, contrived, consented to, or cajoled Mr Park in that regard or, indeed, whether she opposed his endeavours. But in any event, that has not impacted Mr Park’s earning capacity. He is perfectly capable of returning to employment with equal or indeed, as regards the offer from [omitted], greater earning capacity than he had at the commencement of the relationship.
The need to protect a party who wishes to continue the party’s role as a parent
This would favour Ms Park and the best I can do in that regard is to assist her with orders that will meet the shortfall that will arise from what I anticipate will be Mr Park’s inability and reluctance to meet his financial obligations in the future as regards physically, and financial and financial support of his children. This will enable Ms Park to accommodate herself and the children.
Neither party is cohabiting with any other person other than as described above.
The terms of the orders I propose to make will not affect any bankrupt.
The terms of the orders I propose to make will not affect any other creditor or any third party in any fashion that requires address other than through being satisfied through tender of correspondence that procedural fairness has been given to Ms Park’s superannuation fund.
Child Support
I am required to consider any child support that a party has provided, is to provide, or might be liable to provide in the future. In that regard I rely upon the findings made above.
I am otherwise required to consider any other fact or circumstance, which in the opinion of the Court, the justice of the case requires to be taken into account. That perhaps can best be dealt with under the fourth heading of justice and equity.
Justice and Equity
The court has a broad discretion, as made clear by the Full Court in Clauson & Clauson (1995) FLC 92-595, to make orders not only as to quantum but as to the mechanics of how orders are to be put into effect. That enables me in the context of this case to determine whether, for instance, the same percentage should be applied to superannuation as non-superannuation assets, whether superannuation should be split or cash adjustments made, and, importantly, whether, in light of the relief sought by each of these parents, Ms Park or Mr Park is to retain or have first option of retaining the home at [Q].
The Full Court made clear in C & C (2005) FLC 93-220 that discretion is broad and that any of the above options are acceptable or appropriate depending upon the justice and equity of the individual case.
In this case, I am satisfied that the same percentage should apply to tangible and superannuation assets.
In this case I am satisfied that justice and equity requires that Ms Park has the first option of retaining the home. If Ms Park was paid a cash sum it would not be substantial.
If Mr Park is given the opportunity of retaining the home I am satisfied that this will cause nothing but more delay. There is no evidence before me that Mr Park has any borrowing capacity whatsoever, save his indication during cross-examination, that he has spoken with a mortgage broker who has indicated that he can borrow $230,000 to $250,000.
Suffice to say from what I have indicated, the amount that would then be required to be refinanced by Mr Park would be far in excess of his alleged borrowing capacity and clearly he has no capacity to meet the orders through borrowing. Having regard to his poor employment record over the last six years and the fact that he is about to start a job but has not yet started it, there would be substantial delay in meeting qualifying conditions.
I am also satisfied that justice and equity is met by Ms Park having that opportunity first as:
a)She does have the care of two children. If she is to move back into this home, even based upon the repayments that would be expected from a refinancing of just the mortgages, the payments she would be making to accommodate herself and the children would be less than she is paying at present being $450 a week in rent plus the shortfall on the investment mortgage.
b)There will be costs incurred by either of these parties if they purchase new accommodation. I am satisfied that Mr Park has already had substantial and significant benefit over the last 12 months by occupying the home at a low cost, compared to that met by Ms Park. If there is to be cost through payment of stamp duty and the like Mr Park is better placed to meet those expenses.
c)I am also satisfied that the children’s best interests, which are not irrelevant to the fashion in which the court frames property adjustment orders as they are an aspect of justice and equity, and they are persons to be affected by the orders to be made by the Court, require that Ms Park have that option.
Costs
Following the disposal of these proceedings an application for costs is made by the wife. That application, additionally, had been quantified initially in a sum of $20,000 and, ultimately in a re-opening of submissions, $30,000.
The issue of costs is dealt with by s.117 of the Act. Sub-s(1) sets out the default provision, for want of a better description, that each party to proceedings under the Act should bear his or her own costs. That position is subject to the reservation of a general discretion in sub-s(2), that the Court may, subject to a finding of justifying circumstances and following a consideration of relevant factors set out in sub-s (2A), make such order as to costs or security for costs as the court considers just.
In civil proceedings costs routinely follow the cause. The issue of costs under the Family Law Act is and has since 1976 been at variance but with an appropriate discretion reserved.
The rationale and basis for the general proposition in sub-s.(1), that each party should bear their own costs, is a reflection of the fact that parties should be able to negotiate, and if necessary, litigate such private proceedings without the threat of costs in the event that they were successful or unsuccessful. Indeed, there is inherent difficulty in this jurisdiction, especially in parenting proceedings, but not entirely irrelevantly for property and other proceedings, in perceiving what is, in fact, success or absence thereof.
The matters which the court are required to consider by sub-s.(2A) are not a prescriptive list and allow the court to consider any other matters considered appropriate and relevant.
The balance of considerations that are said to temper the exercise of discretion in sub-ss.(4) and (5) deal largely with the funding of Independent Children’s Lawyers and the legal aid entitlements of Independent Children’s Lawyers.
In dealing with the relevant matters under sub-s.2A:
Financial circumstances of each party
Each of these parties has given evidence and findings have already been made as to the parties’ financial circumstances.
The wife is in full-time paid employment earning an income of approximately $80,000 gross per annum. Mr Park is not presently in employment but expecting shortly to commence employment with an income, which will then be in the region of $60,000 per annum.
I have already dealt in some detail with the financial circumstances of the parties post-separation and made relevant findings and criticisms of Mr Park’s absence of contribution to the support of the two children of the marriage. That is relevant, perhaps only to the extent that it reflects upon the wife’s financial circumstances.
Whether any party is in receipt of legal aid
Neither party is legally aided and this consideration is not relevant.
The conduct of the parties to the proceedings including, without limiting the generality of same, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answered questions, admission of facts, production of documents and similar matters
This, together with what effectively constitutes a settlement offer, is the gravamen of this application.
It is submitted in Ms Park’s case that there are a number of relevant considerations regarding Mr Park’s conduct within the proceedings which warrant an order for costs.
The application initiating these proceedings that was initially filed by Ms Park had sought orders which sought a 60/40 per cent division of the equity in the matrimonial home at [Q].
The Orders that have been made by me today, as regards the matrimonial home, provide for Mr Park to receive payment from
Ms Park of an amount that equates to 40 per cent of the present equity in that property. I do not raise that as a matter of distinction but simply to work through the consequences of the orders that I propose.
The application initially filed by Ms Park, and I will return to the status of other documents subsequently filed shortly, had proposed exactly such a payment.
The wife had also sought as part of her initiating application to sell the property at [M] that has been sold, as referred to earlier, this year. The proceeds of sale of the property of [M] have been applied, all but $20,000, in repayment of the mortgage and reduction of the debt that these parties generally had, that property’s mortgage being secured against the [Q] property as collateral security. So certainly at the time of this hearing, the sale of [M] had been affected and the net financial consequence of same had crystallised.
The net consequence of the application that was brought by the wife is that, on the basis of the funds that the wife has retained, she is at or about the position she sought in her application, although on first blush, the application would seem to suggest that Ms Park has been substantially more successful than she had initially proposed, whereas the net financial consequence is about the same. That does not necessarily obviate against an order for costs, but simply puts into perspective that Mr Park has not been resoundingly unsuccessful as might at first blush be suggested based on a simplistic reading of the relief sought in the initiating application.
The initiating application is also of some relevance in light of the vexed and ongoing discussion as to the status of applications and responses before the Court.
It is common practice in this Court, indeed now routine, that directions are made not only for the filing of material by the parties, but the preparation and filing of a case outline document which sets out the orders that are proposed by each of the parties if different from that sought in an application or response together with a chronology of events, material to be read and the like.
The status of such a minute can be, in reality, no more than an aide memoire. It is not a formal amendment of the application. The case outline (or tendered minute of orders sought), now commonly sets out the orders that are intended to be sought at the conclusion of the trial. It is not uncommon that more than one such minute might come into evidence during the course of a trial. This generally occurs without the court having formally turned its attention to its status or any formal or oral application for relief being sought.
That issue is perhaps, in this jurisdiction, less of an issue as it may be in a pleadings-based civil court. The Courts jurisdiction to exercise its discretion under Part VIII is not fettered by the parties’ proposals (see U & U (2002) 211 CLR 238) but such proposals simply reflect a starting point, (and subject to each party being afforded procedural fairness in the event that the court intends to move outside of the parameters set by positions advanced by the parties).
Increasingly, the orders sought at trial bear little resemblance to the orders set forth in the application or response by a party. As an application or response is not a pleading nor treated as same a habit or practice has developed of allowing great latitude in relief sought being varied informally through such documents as case outlines and minutes of orders proposed.
It is entirely feasible that an allegation of denial of due process might, in future circumstances, be raised when such reliance is placed on such aide memoires or minutes of order tendered during a trial. This would be particularly so if a substantial change in relief sought were to arise. Cries of “that is not the case I came to answer” or “that is not the case I was presented with” might, in some circumstances, have some real merit and find favour.
Such potential impact upon due process must and should, in my mind, temper the relaxed approach that has developed towards such “amendment” or even purported joinder of issues by the simple tendering of a minute.
In this case a substantial change occurred regarding the relief sought and being a variation by Ms Park to the orders proposed by her to seek to retain the home in which Mr Park was living and, until some days prior to trial, he would reasonably have believed he would, without interference and save as might be effected by an order for sale, that he would continue to occupy. Again, however, no adjournment was sought and I had specifically addressed with Counsel for each that they did not feel prejudiced or unable to meet the case proposed by the other.
Orders proposed in case outline under the heading “Minute of Orders Sought” reflect, if nothing more, an offer of settlement and could, in effect, represent the basis of an application to the court to amend the relief sought.
This is a Court which is enjoined by the Federal Magistrates Act 1999 and in exercising jurisdiction to be not overburdened with complexity. Section 42 of the Federal Magistrates Act makes clear that the Court can and must proceed with “…all due informality”. It might be suggested that to engage in a particularly intellectual or semantic argument as to the status of relief proposed in a case outline or minute of order does not befit the court. That is not so. Due process must permeate all that the Court does and including vigilance in the exercise of discretion and departure from formality or, in the case of Part VII proceedings, application of rules of evidence.
It is fundamental to all that the Court does to ensure that vigilance is maintained as to due process. If a minute was sought to be tendered which was argued or which had the potential to prejudice a litigant then rejection of the tender and/or adjournment of the proceedings, including of the Court’s own motion, may be warranted.
Such vigilance is continuous as it is not uncommon or, in many circumstances, inappropriate, for relief sought to vary between start and conclusion of a trial or within a trial depending upon the concessions made in cross examination, discrediting of evidence, fresh matters arising and the like. All must be the subject of the Court’s vigilance throughout the trial.
I am prepared to accept, as I have indicated, that the orders proposed in such documents represent, if nothing else, offers of settlement. To the extent that the documents have been exchanged or served I am also satisfied, each of these parties being represented by highly competent Counsel, that due process has been extended to each. If either party were self represented then greater vigilance and a following of rules for self represented litigants as laid down by the Full Court would be required.
The conduct of the parties is also illuminated in submissions made at the conclusion of the case and raises a number of matters that give a context to aspects of the proceedings that were not readily apparent or particularly relevant to the determination of the substantive merits of the case.
These proceedings were initially listed for hearing on the 20th and 21st of June 2011, and did not for a variety of reasons, at least on the 21st, proceed. On the 20 June 2011, however, the matter did not proceed as the court could not accommodate it.
In preparation for the trial, orders and directions had been made by Henderson FM on whose docket this matter had originally been listed, and being orders and directions made by her on 7 March 2011. On that date, Mr Knott, the solicitor for the wife had appeared. Mr Park had appeared in person. Orders were made on that date for both parties to file and serve their primary affidavit material by 3 June 2011, and an order made that in the event that the parties were unable to agree as to the value of any asset in dispute, that a joint valuation was to be obtained and filed by 13 May 2011.
Case outlines, which were to include a short chronology, list of documents relied upon, list of agreed assets and liabilities, and a minute of orders sought, were to be filed no later than two days prior to the hearing. That would appear to have been taken literally as the hearing was due to commence on a Monday and case outlines were filed on the Friday preceding it, leaving no business days effectively to respond.
The husband has been criticised, and I have indeed made findings critical of the husband, as regarding his compliance with his duty of disclosure. I have referred in the substantive reasons to case law such as Weir& Weir and Black & Kellner amongst others. However, the application of the consideration of the conduct of the parties in relation to the proceedings is relevant in relation to the conduct of both parties.
It is germanely pointed out in submissions on Mr Park’s behalf that the first affidavit filed in the proceedings by Ms Park, in February of 2011, at which time the proceedings had been transferred to this court from the Family Court, made only cursory reference to share trading which loomed as a significant issue at trial.
Share trading was not relevant to the make-up of the asset pool nor was it raised as a Kowaliw argument but certainly it was raised as to credit. The proceedings having been commenced in the Family Court the initiating application was not accompanied by an affidavit. The application was accompanied by a financial statement. The financial statement did not, notwithstanding that there is provision for the inclusion of any other information relevant to the proceedings, (such as identifying assets and liabilities or issues in dispute in the proceedings), make any reference to nor any suggestion regarding share trading. Accordingly, the relevance or suggested relevance of such issues would not have been at all apparent.
I accept what is put by counsel on behalf of Ms Park that pre-action procedures, let alone the Court’s rules, require that a litigant produce certain documents. However, those documents as described in this Court’s rules are largely defined by reference to a standard set of materials being income tax returns and assessment notices, bank statements and the like, and such other documents as are identified as being relevant.
It is suggested, and I accept, that a notice to produce was received by Mr Park’s solicitors on 16 June, being one business day prior to the scheduled hearing. The notice to produce did not seek the production of any documents with respect to share dealings. A subsequent notice to produce was served on the afternoon of 20 June, being the afternoon of what was to have been the first day of hearing, and that document, for the first time, sought the production of material with respect to shareholdings. In the time that was available, I accept that Mr Park made some enquiries and they were certainly not fruitful in producing material.
There is some potential or suggestion that there may still be shares or some contract relating to share dealing in existence, which is not known, but primarily that issue related to credit.
Conduct with respect to the proceedings has already been the subject of some comment by me in the substantive reasons. The material that was to have been filed by the wife in support of her case was filed, to say the very least, very late and without any explanation for its lateness. The affidavit was sworn on 10 June 2011, which was after the date upon which documents were required to be filed. The affidavit was filed with this Court on 15 June 2011, and it would appear was served by facsimile on 16 June 2011, again being one working day prior to the scheduled commencement of the hearing.
It was not until service of the case outline document, which set out the orders that were to be sought at trial that Mr Park was aware that
Ms Park had changed her position and sought to acquire his interest in the property. Whilst that was a change, it did not dramatically change the substance of the proceedings, in that Ms Park had, to that date, sought an order for the sale of that property. Clearly and whilst
Mr Park was required to address the sale of the home the orders proposed in the case outline certainly did move the goal posts some distance.
The other aspect of conduct and preparation that is more concerning for me, in relation to that affidavit filed on 15 June, is its brevity. The affidavit, including its cover sheet and including its first page, which comprises, in large part procedural aspects of the form, is in total some 10 pages long and some 67 paragraphs.
I have already commented that the affidavit material at that point in the proceedings (i.e. 20 June 2011), was defective and did not include a great deal of material that would have been germane, would have been useful, or indeed would have supported the submissions that were ultimately advanced in the wife’s case.
When the matter had not been able to proceed on the 20t and 21 June and the matter was transferred from Henderson FM to myself, an interlocutory hearing was then conducted regarding the requirement to undertake a valuation of the matrimonial home, matrimonial jewellery, and the need for the wife to file further and additional affidavit material.
I granted leave on that occasion for this to occur as on any reading of the affidavit that had been filed the matter could not appropriately be certified as ready to proceed on the wife’s case, or indeed, if it were to proceed, would have occasioned a substantial disadvantage to the wife, which is not a matter for which she should be held to account by reference to Donoghue v Stevenson [1932] All ER Rep 1 when she is engaging paid professionals to give her advice and assistance.
The additional affidavit or supplementary affidavit as it has been referred to that was subsequently filed, bolstered the evidence but still left a number of difficulties as regards aspects of the wife’s case that could and should have been better addressed, bearing in mind that the proceedings had, by then, been on foot for some nine months.
That does not though, derogate from Mr Park’s obligation to provide full and frank disclosure. But I am cognisant of the fact that he was until May of 2011, self-represented. Again, I hasten to add, in the event that this judgment ever reaches the public domain and is used as the source of succour for anyone who is self-represented or seeks to advocate on behalf of self-represented litigants, that different rules apply to them. If a person is self-represented, by choice or otherwise, exactly the same rules apply to them as apply to the legal profession and to litigants who are represented by members of the legal profession. But it is difficult for Mr Park to ascertain what documents might be sought to be produced by him that would be relevant to the proceedings, without those issues being clearly identified in the material with which he was served.
Also the wife’s material was to be filed and served by 3 June. It was late and there was no explanation for it. If directions for trial had been made be me then it would have specified that any material that was not filed by the due date could not and would not be relied upon at trial without leave. That would have left the wife with no case at all and nothing for the court to do, but either adopt the pragmatic approach of allowing oral evidence, which would potentially create an issue of due processes as regards Mr Park, whose material was also slightly late but certainly filed and served earlier than the wife’s, or to simply dismiss all applications for want of prosecution.
The day, in my mind, is rapidly approaching when the above will become the consequence for litigants who do not file material on time. Too much of this Court’s time is taken up and wasted by litigants (represented and not) who fail to comply with orders of the Court for the filing of their material. If they do not wish to play by the rules they need not enter the field. The time that is made available by the Court belongs to the community not to the individual litigants who obtain the dates.
Returning, however, to the conduct of the parties, I am conscious that the context that is given for the requests for the production of material leading up to, and indeed on the first day of the trial, causes me some concern. A notice to produce could of and should have been issued far earlier if it is suggested that the documents were relevant, necessary and unable to be otherwise obtained.
Again, there is an obligation on litigants to provide full and frank disclosure without request, and I do not seek to cavil with the myriad of Full Court judgments on that topic. However, it is difficult, based on the material which on 16 June 2011 Mr Park was served with, to see anything that would suggest that share trading was relevant. Indeed, as I have already highlighted, its relevance was largely with respect to credit as it was not sought to suggest that there was wastage or that there were assets in existence which had not been accounted for although, in fairness to Ms Park, she is not in a position to know that either. But there are issues as to conduct on both sides.
I am tempted, but do not follow that temptation as I have not afforded any procedural fairness to the wife’s attorney’s to address the issue to take the path adopted by FM Lucev, in restraining lawyers from charging costs beyond an amount that has been fixed by the Court in circumstances where FM Lucev was dissatisfied with the level of preparation that had occurred and indeed when prolix and lengthy material had been filed which was largely irrelevant. I am not faced with that difficulty. I am simply not provided with information or material, neither timely or substantial. I will do no more than to comment that certainly Ms Park has demonstrated in relation to the conveyancing transaction, that when she does not feel she has received value for money, she has been quick to raise complaint.
That is not a criticism of her. Certainly in relation to that transaction it was entirely appropriate. But if she has been or is rendered a bill for substantial cost for preparation of this case, when the preparation has been inadequate, she would have rational basis for complaint.
Whether the proceedings have been necessitated by failure to comply with an order is not relevant.
Whether any party has been wholly unsuccessful is not agitated as relevant.
The remaining issue is then whether either party to these proceedings has made an offer in writing. I take that the orders sought are set out in the case outline filed on the business date prior to the scheduled hearing 20 June represent an offer of settlement. Certainly, there can be no issue that the terms of that offer are such that the wife has done better than her offer.
It is well established in civil jurisdictions that a litigant is entitled to the fruits of their litigation, whether through enforcement of orders made or by being alleviated of the burden of costs that has been incurred in circumstances where a reasonable offer of settlement has been made that can and should have been accepted. It is urged that this might have been the case in these circumstance.
I am also conscious that the response and amended response filed by Mr Park could fairly be described, as the evidence has fallen but perhaps not ascertainable prior to that evidence being given, as having been incapable of success. But that was a matter which required the leading and testing of evidence to arrive at that determination.
The parties were essentially at odds as to the implementation and interpretation of how certain aspects of the court’s discretion would apply to their facts and circumstances. The issues that have arisen regarding the absence of clear definition of issues in dispute in the proceedings and production of documents relevant to them, is also concerning as it is an unnecessary expenditure of the court’s resources and those of the parties.
These parties have had the benefit of a Registrar’s time at conciliation, the benefit of a Federal Magistrates’ management of the matter in their docket and it would not appear that at any point in time the issues in dispute or the absence of appropriate disclosure has been made abundantly clear to the Court. Indeed, all of those matters can and should have been dealt with before this matter even reached a Conciliation Conference. It beggar’s belief to suggest that parties can properly and appropriately negotiate, with or without legal assistance, in the absence of being able to identify and focus upon what is really in dispute and to have available to them common and consistent evidence and information that addresses those issues through corroboration or otherwise.
Those are all matters in the context of this case that have caused me considerable concern since the matter commenced before me. So much so that I have determined as a consequence of this and a number of other cases in the list this week, that henceforth no matter will be listed for hearing until all material is filed, all disclosure is certified as having been attended to and all judiciable issues can be clearly identified. In that fashion, parties will be able to effectively negotiate and focus. Indeed, that may well be extended to require that this occur prior to a Conciliation Conference as the Court’s resources belong to the community and should not be wasted by inadequately prepared matters that are proceeding where everybody is standing on different fields playing a different code of football rather than facing each other on the same field with a common understanding of the applicable rules.
I am satisfied, however, that based upon the fact that the wife’s position was made clear prior to the listing 20 and 21 June 2011, that an offer of settlement was on the table that can and should have been accepted, that some order for costs can and should be made. However, I am not prepared to order costs in the quantum as sought.
I am satisfied that it is through no fault of either party that the matter could not proceed on the 20 or 21 June 2011. It is an unfortunate consequence of the requirement of this court, with its limited resources, to over-list. For that I apologise to the parties as it has occasioned them cost but it is a function of the workload of the Court.
If matters were individually listed, particularly when as demonstrated by this case, the matter may not well have been ready to proceed on the 20 June in light of the difficulties with affidavit material, questions then raised about valuation, and the like. It would be an even worse situation for the court if the Court were left idle for two days.
I cannot do much about what occurred on the 20 and 21 June 2011 but I am also conscious that the offer of settlement, if I can call it that, being the orders sought in the case outline, had only been served the working day beforehand, and accordingly I am not satisfied that an award for costs for those days should occur.
With respect to the costs that are incurred with respect to the conduct of the actual hearing, and particularly having regard to the comments I have had to make regarding the state of preparedness in a timely an appropriate fashion of the wife’s case, I am satisfied that an order for costs, if made, should be limited to Counsel’s appearance.
I certify that the preceding two hundred and forty-one (241) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 26 September 2011
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