Parsons and Bayne

[2013] FCCA 1136

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARSONS & BAYNE [2013] FCCA 1136

Catchwords:
FAMILY LAW – Property – undefended – Husband living in former matrimonial home – Husband did not participate in proceedings brought by Wife – modest net property pool – whether wastage alleged by Wife should result in add backs – Husband’s failure to participate as a s.75(2) factor.

Legislation:

Family Law Act 1975, ss.75 and 79

Aleksovski & Aleksovski (1996) FLC 92-705
C v C (2005) FLC 93-220
Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93-143
In the Marriage of Kowaliw (1981) FLC 91-09
Parshen & Parshen (1996) FLC 92-720
Stanford v Stanford [2012] HCA 52

Applicant: MS PARSONS

Respondent: MR BAYNE

File Number: SYC 7544 of 2012

Judgment of: Judge Sexton

Hearing date: 9 August 2013

Date of Last Submission: 9 August 2013

Delivered at: Sydney

Delivered on: 21 August 2013

REPRESENTATION

Counsel for the Applicant: Mr Givney

Solicitors for the Applicant: Burt & Allen

Counsel for the Respondent: No Appearance

Solicitors for the Respondent: No Appearance

THE COURT ORDERS THAT:

1. The applicant Wife forthwith cause a sealed copy of these Orders be served on the Husband by way of: 

   i)Personal service on a person over 18 years of age at (omitted) Pty Ltd, (omitted), Sydney; and

   ii)Personal service on a person over 18 years of age at (omitted), NSW;

   iii)Placing a sealed copy of these Orders on the kitchen bench of the Property P property (the Property P property) in an envelope with a notice attached to the outside of the envelope in large black print

   “ORDERS FOR SALE OF THIS UNIT WERE MADE ON 21 AUGUST 2013.” 

   iv)Forwarding a sealed copy of these Orders by prepaid post to the Husband’s parents at (omitted) with a letter advising an Order has been made for the sale of the Property P property and requesting the Orders be forwarded to the Husband.

2. The Wife file an affidavit of service to verify compliance with Order (1).

3. These orders be stayed for a period of 30 days from the date of filing of the affidavit of service in accordance with Order (2) herein.

4. Within 28 days of being served with a sealed copy of these Orders, the Husband file and serve any application to vary or set aside these orders with an affidavit in support and sworn Financial Statement.

5. Within 21 days of being served with a sealed copy of these Orders, the Husband vacate the Property P property.

6. The Husband be restrained from removing fixtures from the Property P property, including stove, dishwasher, fixed floor coverings, blinds or curtains.

7. The Husband have liberty to remove his personal possessions and furniture from the Property P property. 

8. The Wife be appointed trustee for sale of the property at Property P in the State of New South Wales (‘the Property P property’) and have the sole right to give effect to the choosing of an agent and/or auctioneer (if necessary), the choosing of a solicitor or conveyancer to act on the sale, the choice of the listing price, reserve price (if applicable) and, the agreed price for the sale of the Property P property and to give effect to this Order:

   (a)The Wife be empowered to undertake repairs and refurbishment of the property at a cost not exceeding $30,000, to present the property for sale in a proper condition, including but not limited to:

   (i)Painting the property;

   (ii)Replacing carpet; and

   (iii)Repairing damage to the property;

   (b)The Wife be empowered to sign all documents in respect of the Property P property including but not limited to entering into an agency agreement on behalf of both parties, entering into a costs agreement with a solicitor or conveyancer on behalf of both parties, entering into a contract and signing a transfer in respect of the said sale on behalf of both parties;

   (c)The Wife cause the Property P property to be sold for the best price reasonably obtainable.

9. Upon completion of the sale of the Property P property, the proceeds be distributed in the following order and priority:

   (a)In payment of agents commission and selling costs;

   (b)In payment of legal costs associated with the sale;

   (c)In adjustment of rates and other outgoings in accordance with usual conveyancing practice;

   (d)In payment of the amount necessary to discharge the two loans to the (omitted) Bank secured by way of mortgage on the Property P property;

   (e)In discharge of arrears of rates and strata levies;

   (f)In payment to the Wife of a sum no greater than $30,000 for sums expended by her in accordance with Order (8)(a) of these Orders.

   (g)In payment of $1,311.45 to the Husband;

   (h)In payment of the balance as to 65% to the Wife and 35% to the Husband. 

10. The Wife be entitled to the proceeds of bank accounts in her name, home contents in her possession, personal items in her possession and her superannuation entitlements. 

11. The Husband be entitled to retain all superannuation entitlements held in his name.

12. Except as otherwise provided in these orders, the Husband and the Wife retain all other items of property currently in the possession or control of each of them respectively.

13. Except as otherwise provided in these orders, the Husband and the Wife each remain liable for any debts, howsoever arising, in their own name at the date of these Orders and in this respect shall indemnify, keep indemnified and hold harmless the other from any liability in relation thereto.

14. In the event that the Husband or the Wife fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, then pursuant to s106A, a Registrar or Deputy Registrar of the Federal Circuit Court of Australia is hereby appointed to execute all deeds, documents and instruments in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to such deeds, documents and instruments.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7544 of 2012

MS PARSONS

Applicant

And

MR BAYNE

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case concerns property adjustment.  The parties lived in a de facto relationship for 9 years.

2. The Wife is 30 years of age and the Husband is 34 years of age. According to the Wife’s affidavit material, the parties met in March 2002, when the Wife was a university student and the Husband was a (omitted).  They started living together in mid-2002 when the Husband moved into the Wife’s home in (omitted) with her father and brother, a home owned by the Wife’s father.  Four years later, the parties purchased a property in which they lived together (the Property P property).  They separated in mid-2011.  The parties never married and there are no children of the relationship.  To the best of the Wife’s knowledge, the Husband is presently living in their Property P unit. The Wife has been living with her father and brother since separation.  The Wife has not had contact with the Husband since approximately August 2012.[1] The Husband has not participated in these proceedings.

   [1] Affidavit of the Wife sworn 14 May 2013; Affidavit of the Wife sworn 17 July 2013

3. Despite being on notice of the proceedings, the Husband has not filed any documents in the proceedings, nor has he made an appearance on the several occasions the matter has been before the court.

Orders sought by the Wife

1. The Wife seeks an order for the Husband to vacate the Property P property and for her appointment as trustee of sale of the property.  As a result of her intervention, the mortgagee has deferred legal action until October 2013.[2] 

   [2]Applicant Wife’s Case Outline Affidavit of the Wife sworn 17 July 2013

2. The Wife seeks orders providing for the difference in the mortgage loan balances at separation and currently, to be added back to the Husband’s share of the assets, as well as the unpaid arrears of strata title levies. She then seeks 55% of that net asset pool. 

History of Proceedings

1. The Wife commenced these proceedings for property adjustment by application filed on 1 December 2012. The matter was listed before me for the first time on 28 February 2013. The Wife appeared represented by her solicitor, but there was no appearance by or for the Husband. As a result of the Wife's evidence as to efforts made to have the Husband personally served, the Court made orders for substituted service providing for personal service on any person over the aged of 16 years at the parties’ Property P property and at the offices of (omitted), in (omitted), where the Wife believed the Husband was employed.  A further order was made for the documents to be forwarded to the Husband’s parents’ residence in (omitted), New South Wales, with a request that the documents be provided to the Husband.  I am satisfied those orders were complied with.   

2. On 9 April 2013, the matter was again before the Court and there was no appearance by or for the Husband.  An affidavit of attempted service, relating to attempts to serve the Husband at the Property P property from a licensed process server, revealed that attempts to serve the Husband at the Property P address on two occasions in March 2013, were unsuccessful. The process server noted that the mailbox for the unit was overflowing with mail and there was a disconnection notice from Energy Australia protruding from the letter box.[3] The Court noted the efforts made by the Wife to have the Husband served, all unsuccessful.[4]  Further orders were made for the Wife to attend upon the Property P property, to which the Wife still had access, to further attempt service on the Husband, including service of a letter from the Wife’s solicitors advising the Husband of the Orders the Wife intended to seek on the further adjourned date, if the Husband failed to appear.  The proceedings were adjourned until 3 July 2013.

   [3] Affidavit of Attempted Service of Mr F (Licensed Process Server), filed 4 April 2013

   [4] Affidavit of Service of Ms C (Licensed Process Server), filed 28 March 2013; Affidavit of Mr R, filed 1 July 2013; Affidavit of Attempted Service of Mr S, filed 8 August 2013

3. In May 2013, the Wife deposes to entering the Property P unit and observing the Husband’s dog living in the unit. She said the unit was filthy, there was mould on the walls with a strong smell of dog urine on the carpets.  The electricity had been disconnected.  On 10 June 2013, the Wife entered the unit again and took a series of photographs to verify the state of the unit. 

4. An affidavit of Mr R, a friend of the Wife’s, sworn on 30 June 2013 disclosed that the Wife’s documents and a sealed copy of the Court’s orders were left on the kitchen bench in plain view inside the Property P property on 27 May 2013.

5. On 3 July 2013, the Husband again failed to appear at Court. The Court tried to telephone the Husband at (omitted), the Husband’s employer and was told the Husband was not available to take the call, and the person who answered the call, was unable or unwilling to advise the Court when the Husband might return or how he could be contacted. 

6. The matter was again adjourned until 9 August 2013 for undefended hearing.  An order was made for the Wife to attempt to serve on the Husband an Amended Application setting out the orders she would seek at hearing and affidavit in support. The Court noted that the Wife would issue a subpoena to the Husband’s place of work.  

7. On the basis of documents tendered at hearing from (omitted) Pty Ltd, I am satisfied that the Husband is employed as an “(omitted)” for that company, performing duties for one of their clients, known as (omitted), and I am satisfied (omitted) Pty Ltd has recorded the Husband’s residential address as the address of the parties’ Property P property.[5] On 25 July 2013, the Wife’s solicitor, Mr Burt, telephoned (omitted) Pty Ltd, and left a message for the Husband to call him.  He did not receive a reply.[6]  On 5 August 2013, Mr Burt again telephoned (omitted) Pty Ltd and asked to speak to the Husband. Mr Burt was advised that the Husband was a “temp” and did not work in the office.[7]    

   [5] Exhibit 4 (Documents from (omitted))

   [6] Exhibit 5 (Affidavit of Christopher George Burt, sworn 8 August 2013)

   [7] Ibid

8. On the basis of the Wife’s father’s affidavit sworn 5 August 2013, I am satisfied that on 29 July 2013, the Wife’s father left on the kitchen bench of the Property P property, the following documents:

   ·     A letter to the Husband from the Wife’s solicitor, dated 24 July 2013, advising the matter was listed on 9 August 2013 at 2.15p.m and would proceed on an undefended basis if the Husband failed to appear and that orders may be made as sought by the Wife.

   ·    The Wife’s Application in a case filed 17 July 2013 setting out the Orders sought by the Wife at hearing.

   ·    The Wife’s affidavit in support sworn on 17 July 2013.

   ·    A sealed copy of orders made on 3 July 2013. 

9. I am satisfied that the Husband is on notice of these proceedings and was aware of the Court’s intention to proceed with the Wife’s application in his absence on 9 August 2013 at 2.15pm.   

10. The matter proceeded on an undefended basis on 9 August 2013.  The Wife relies on an Application in a case filed 17 July 2013, her Amended Financial Statement sworn on 14 May 2013 and her Affidavits in Support sworn 14 May 2013 and 17 July 2013.   

Issues

1. The approach to the determination of an application under section 79 of the Family Law Act 1975 in this case, involves consideration of the following questions:[8]

   a)What were the assets, liabilities and financial resources of each party and their values at the time of hearing?

   b)Is it just and equitable to make an adjustment to the existing property interests of the parties?[9] 

   c)If so, what were the financial and non-financial contributions made directly or indirectly by or on behalf of each party to the acquisition, conservation or improvement of the property of the parties?

   d)What was the contribution made by each party to the welfare of the family including contributions made in the capacity of homemaker or parent?

   e)What is the effect, if any, of any proposed order upon the earning capacity of each party?

   f)What matters referred to in sub-section 75(2) of the Act are relevant and what adjustment, if any, should be made as a result of these factors?

   g)After consideration of these matters, is it just and equitable to make the actual orders?

What were the assets, liabilities and financial resources of the parties at the time of hearing and their values?                  

[8] Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93-143

[9] Stanford v Stanford [2012] HCA 52

1. The Wife says that at separation the parties divided the household furniture and effects between them and each took one of their two (omitted) dogs. The Wife deposes to her share of furniture and household items having a value of $8,000. 

2. In relation to the Property P property, the Wife relies on a market appraisal of (omitted) property agents which values the property at an estimated $545,000.[10]  I accept this estimated value and the values the Wife asserts of the proceeds in her bank account and her superannuation entitlements.   

   [10] Exhibit 3 ((omitted) market appraisal, dated 18 June 2013);Applicant wife’s case outline

3. In relation to the liabilities, I accept the Wife’s assertions as to the balance of her Mastercard debt and the evidence adduced as to the strata levy arrears.[11] However, I find the evidence as to the balance of the loans to (omitted) Bank, secured by way of mortgage on the Property P unit, confusing. Unfortunately, the Wife does not provide copies of the loan account statements, which would have been readily available if a subpoena to (omitted) Bank had issued.  The Wife relies on an internet print out from (omitted) Bank, which purports to show the current balance of the two loans.[12] Loan account S211 306 977 501 (‘501 loan’) discloses a balance of $382,907.81 and loan account S211 306 977 500 discloses a balance of $49,190.38, a total of $432,098.  The stated balances are not dated. The balances provided by the Wife’s counsel in his case outline are slightly less. The default notice annexed to the Wife’s affidavit at Annexure B, discloses that as at 12 March 2013, the balance of the 501 loan account is $353,654.81 with arrears at $9,107.69. According to Exhibit 1, this amount was approximately the same balance of the 501 loan account at or about the time of separation in 2011. In her Financial Statement sworn in December 2012, the Wife deposes to loan balances totalling $395,455.  Neither the Wife, nor her counsel, Mr Givney, explain the differences in these figures. 

   [11] Exhibit 2 (Letter from Levies Online, dated 2 April 2013)

   [12] Exhibit 1 (Summary of account details, (omitted) Bank, dated 9 August 2013)

4. The Wife’s counsel submits that the Court should add back the difference between the loan account balances at separation and the current loan account balances, an amount of approximately $30,000, as well as the strata title levy arrears in the sum of $13,329.00.  Counsel submits that the Husband has wasted these funds and it would be unjust to the Wife, to be required to share in those losses. Counsel relies on the authority of Kowaliw in which His Honour Justice Baker found that when one party has embarked on a course of conduct designed to reduce or minimise the value of matrimonial assets, or has acted recklessly or negligently, such that the overall effect is to reduce the value of matrimonial assets, there should be an adjustment under s.75(2)(o) in favour of the affected party.[13] In this case, apart from establishing that the loan accounts and the strata levies are in arrears, the Wife adduces no evidence of what the Husband has or has not contributed to the outgoings on the home since separation. The Wife does not adduce evidence of the repayments required on the mortgage at separation and what proportion of that repayment she has paid. She does not adduce evidence of the other outgoings on the home which she believed the Husband would pay or why she did not have some responsibility for those fixed outgoings, including the strata title levies. There is no evidence to satisfy the Court as to whether or not the Property P property has increased in value during the period since the parties separated, which may now benefit the Wife. While I accept that the loan balances and the strata levy liability have increased during the period the Husband has been in occupation of the unit, I find it impossible to precisely quantify any loss the Wife might have suffered, as I am being asked to do. I do not, therefore reject counsel’s argument that the strata levy arrears and the difference in the loan account balances since separation, should be added back to the pool. I address the issue further under the s.75(2) factors.

   [13] In the Marriage of Kowaliw (1981) FLC 91-09

5. Based on the advice of (omitted) Property Agents, I accept the Wife’s evidence that she will need to invest up to $30,000 on repairs and improvements to the property to achieve a sale price of $545,000.[14] The Wife adduces evidence of quotations for the cost of these necessary repairs/improvements at a total of $29,000.  I therefore include a liability of $30,000 in the table of assets. 

   [14] Exhibit 3

6. With the qualifications I have outlined, I am satisfied the known assets and liabilities of each party available for division between them as at the date of hearing are as identified in the following table:[15]

   [15] Applicant wife’s case outline.

Assets and liabilities at the date of hearing	$
Property P  (joint names)	545,000.00
(omitted) Bank bank accounts (Wife)	738.00
Personal effects and furniture (Wife)	8,000.00
Household contents (in possession of Husband)	Not known
Other assets held by Husband	Not known
(omitted) Bank loan secured by mortgage on Property P property (J)	(382,907.00)
(omitted) Bank loan secured by mortgage on Property P property (J)	(49,190.00)
Mastercard debt in name of Wife	(4,991.00)
Unpaid strata levies (as at 2 April 2013) (Joint)	(13,329.00)
Cost of refurbishment and repairs to Property P property (Wife)	(30,000.00)
Total known non-superannuation net pool	73,321.00
Superannuation held by Husband	Not known
(omitted) Superannuation (Wife) (Wife’s Amended Financial Statement sworn 14 May 2013)	9,067.00
(omitted) Superannuation (Wife) (Wife’s Amended Financial Statement sworn 14 May 2013)	18,626.00
Total known superannuation pool (Wife only)	27,693.00

Is it just and equitable to make an adjustment to the property interests of the parties?

1. The parties separated almost two years ago. The only significant asset is the property at Property P held in the parties’ joint names. The parties no longer have the mutual enjoyment of their common property.  The parties have joint debts which must be repaid.  I am therefore satisfied that it is just and equitable to adjust the property interests of the parties. 

Contributions

1. The court must consider all the contributions, both financial and non-financial to the acquisition, conservation and improvement of the parties’ assets, as well as to the welfare of the parties before and after separation. The Full Court said in Aleksovski & Aleksovski (1996) FLC 92-705:

   It is therefore necessary…[to] weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such assessment into a percentage of the overall property of the parties...[16]

   [16]Aleksovski & Aleksovski (1996) FLC 92-705 at 83,437

2. The Wife adduces no evidence as to the Husband’s superannuation interests and the Husband adduces no evidence at all as to his financial position. To ensure no potential disadvantage to the Wife, I have adopted a two list approach to the superannuation and non-superannuation assets of the parties. The majority of the Full Court in C v C [17] said there is no binding principle as to the exercise of the Court’s discretion in deciding whether a one list or two list approach should be adopted. 

   [17] (2005) FLC 93-220

3. Financial contributions. The wife gives a brief financial history of the marriage in her affidavit sworn on 17 July 2013. Her evidence is unchallenged and I therefore make factual findings as set out below.    

4. Initial contributions. At the commencement of cohabitation in May/June 2002, the Wife had no assets of significance.  The Husband owned a car, subject to a loan, and had a credit card liability of approximately $10,000 – $15,000. I find neither party’s initial contributions require an adjustment in favour of one of the parties.    

5. Financial contributions during cohabitation. From the time the parties commenced cohabitation in 2002 until June 2006, the parties lived rent-free in the Wife’s father’s home at (omitted). While the Wife provides no evidence as to the value of the rent this would have saved the parties over a 4 year period, I am satisfied this contribution was a substantial one which will be credited to the Wife. 

6. In June 2006, the parties purchased a home unit at Property P as joint tenants for $420,000. They borrowed the whole of the purchase price from (omitted) Bank and then applied the First Home Owners grant of $7,000 to that loan. The Wife says the parties then spent their savings of approximately $20,000-$30,000 on furniture and effects.  The Wife adduces no evidence of how the parties paid for stamp duty or for other expenses relating to the purchase.  I find the parties made equal contributions to the purchase of the Property P property. 

7. Employment.The Wife was studying at university and TAFE for the first two years of the parties’ cohabitation and was not earning an income during that period. The Wife then worked as a (omitted) until 2008. From 2009 until August 2010, the Wife worked as a (omitted) at (omitted) and then at (omitted) as a (omitted) and (omitted). She was then employed by (omitted) as a (omitted) and for the last 9 months has been employed as the (omitted) at (omitted).  She deposes to earning a current annual income of $50,455. 

8. The Wife deposes to the Husband working full time in various roles during the period of cohabitation and says he has been employed by (omitted) since August 2012. According to documents produced by (omitted) Pty Ltd, (omitted) is a client of (omitted) and the Husband earned $41,683 from that employment in the 2013 financial year.[18] The Wife says that during cohabitation the Husband’s income always exceeded hers, and at the time of separation, she was earning $48,000 per annum while the Husband was earning approximately $100,000 per annum.  I accept the Wife’s evidence that the Husband was the higher earner, at least until August 2012 when the Husband left (omitted). While the Wife deposes to using her income for shopping, she adduces no other evidence as to how each party’s earnings were applied, and in the absence of other evidence, I am satisfied each party contributed their earnings to the expenses of the home, the household and their personal expenses.[19]

   [18] Exhibit 4;

   [19] Parshen & Parshen (1996) FLC 92-720

9. Financial contributions after separation. At separation in October 2011, the Wife left the Property P property and moved to her father’s home. The Wife has not had the benefit of occupation of the parties’ home since then.  The Wife also contributed approximately $375 a month towards outgoings on the Property P home for 12 months following separation but has otherwise made no contribution to the fixed outgoings on the property. As already noted, I am unable to ascertain what contributions have been made by the Husband, but I accept the Wife’s counsel’s submissions that the loan accounts and strata levy fees have fallen into arrears during the Husband’s occupation of the property, and those arrears are now substantial. 

10. At separation, the Husband told the Wife that he wanted to retain the Property P property and pay out her share. The Wife says the parties agreed that she would contribute $375 a month to the joint account for outgoings, and the Husband would pay the balance. In April 2012, the mortgage was in arrears in the sum of $3,000 and the Wife’s father and the Husband paid $1,500 to discharge those arrears.  In August 2012 the Husband left his employment with (omitted) and no longer had a mobile phone or email address known to the Wife.  Prior to losing contact with him, the Husband confirmed by email to the Wife that he had a boarder at the unit paying $1100 per month.  The Wife says she was then unable to contact him.  The Wife says she continued to make her contribution to the joint account until October 2012, but ceased payments because the Husband had made no effort to raise the finance to discharge the loans and buy her share of the property.  Exhibit 1 discloses that a payment of $200 was made to (omitted) Bank on 7 February 2013, and no repayments have been made since then on the larger loan.  The arrears on that loan are presently $21,527.69.  Exhibit 1 discloses that the last payment on the smaller loan was $353 on 25 January 2013, and the arrears are presently $2,771.00 on the smaller loan.  As already noted, it is unfortunate that the Wife does not provide the Court with copies of the parties’ loan account statements for either loan with (omitted) Bank, so she is unable to verify her assertion that the Husband has made no payments towards either loan since March 2012. In fact, what the Wife says contradicts the limited evidence of repayments disclosed in Exhibit 1 as $200 in February 2013 and $353 in January 2013. 

11. On the basis of these findings, I find that the Wife made the majority financial contribution to the non-superannuation assets of the marriage as a result of the parties being permitted to live rent free with her father for 4 years, which is likely to have made purchase of the Property P property possible, and as a result of the Husband having the occupation of the Property P property after separation, while allowing the loan accounts and strata levy liability to fall into substantial arrears.  

12. Non-financial contributions.  I accept the Wife’s evidence that she was responsible for all the cooking during the course of the parties’ relationship, and undertook the majority of domestic tasks. 

13. I accept the Wife’s evidence that she has undertaken negotiations with (omitted) Bank to delay foreclosure on the Property P property.  I find that the Wife will have responsibility to arrange for the repairs and refurbishment necessary, as a direct result of the Husband neglecting to maintain the property in proper condition.   

14. On the basis of these findings, I am satisfied the Wife has made the majority non-financial contributions to the non-superannuation assets of the parties. 

15. The orders proposed by the Wife do not affect either party’s earning capacity. 

16. Assessment. I have regard to the fact that the net asset pool has a modest value.  On an assessment of each party’s contributions to non-superannuation assets during the period of cohabitation and since separation, both financial and non-financial, I have determined that the Wife is entitled to 58% and the Husband to 42% of the non-superannuation assets as far as they have been identified.

17. Superannuation. There is no evidence before me as to whether the Husband owned any superannuation at the date of commencement of cohabitation or as to the quantum of superannuation the Husband accumulated during cohabitation or after separation. However, as the Husband has been employed during the period of the parties’ cohabitation, and employer paid superannuation has been compulsory during the relevant period, I find it likely that the Husband has accumulated superannuation entitlements.  I accept the Wife’s evidence that she has superannuation assets with a value of $27,694, as at May 2013.  Given the Husband has earned more than the Wife and the Wife spent two years of the cohabitation period at university, I find it likely that the Husband has a greater superannuation entitlement than the Wife.  In the circumstances I have determined that each party will retain the superannuation interests in their respective names.   

What matters referred to in sub-section 75(2) of the Act are relevant?

1. I have considered each of the relevant factors listed in section 75(2) of the Act.

2. The Wife is 30 years and the Husband is 34 years of age.The Wife is in good health.  There is no evidence before the Court as to the status of the Husband’s health.

3. The Wife earns a modest income, with earnings after tax of approximately $42,000 per annum. 

4. The Husband earned $41,683 from one employment source in the 2013 year and I can make no finding as to what other income the Husband has been or is currently earning.  As at the date of separation, the Husband was earning an estimated $100,000 per annum. 

5. The Husband has not participated in these proceedings and therefore has not made any disclosure of his financial circumstances. The Husband may have assets which have not been disclosed.  

6. Neither party has responsibility for a child. 

7. The Wife has not re-partnered and adduces no evidence of the Husband’s partnership status. 

8. The Husband’s failure to engage in these proceedings has had negative consequences for the Wife. The parties have two loan accounts and their debt is increasing. The Bank will shortly foreclose on the property if it is not sold by the parties.  The parties have other outstanding debts relating to the Property P property which must be repaid.  I find that the Wife will be left to manage the problem without assistance from the Husband. I find that these proceedings have been necessitated by the Husband’s refusal to provide financial information and his refusal to participate at all in settlement negotiations.  I find that the Wife has incurred legal costs which might otherwise have been avoided.  

9. As already noted, the Husband has been living in the property and has allowed the loan accounts to fall into substantial arrears, without giving the Wife any opportunity to minimise the increase in that liability. The Husband has not paid the strata levies, and has not engaged with the Wife in an effort to minimise this increasing liability. The property is in poor condition as a result of the Husband’s neglect. I find the Husband’s conduct is likely to have caused both himself and the Wife financial loss. 

10. I have determined that the Wife will receive a further adjustment of 7% on the basis of these factors.  

11. There have been no other orders made affecting either party.

Overall assessment

1. The Wife will therefore receive 65% of the non-superannuation assets of the parties as far as those assets are known.  

2. As already noted, in the absence of any evidence from the Husband, I find no basis for any adjustment in his favour in relation to superannuation assets. The Wife will receive 100% of the superannuation assets held in her name.

Is the result just and equitable?

1. Section 79(2) provides that:

   The Court shall not make an Order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.

2. The Court must be satisfied, on the evidence available, that the actual orders provide for a just and equitable distribution of the property of the parties. 

3. Excluding the Property P property and the debts which will be repaid on sale of that property, the value of the non-superannuation asset pool is $3,747.00, made up of the Wife’s bank account, furniture, personal items and Mastercard liability. To receive his entitlement of 35% of the known net non-superannuation pool, the Husband must receive 35% of $3,747 which is $1,311.45.  He must also receive 35% of the net proceeds of the sale of the unit after payment of the debts relating to the Property P property and reimbursement of the costs of the improvements to the Wife. 

4. When the Property P property has been sold, after payment of the loan accounts and joint debts relating to the property, reimbursement to the Wife of funds applied to repair the property, payment to the Husband of $1,311.45, the net proceeds of sale will be divided such that the Wife will receive 65% and the Husband 35% of the balance remaining. In addition, the Wife will receive her superannuation entitlements. The Husband will retain any assets he has which have not been identified, including any superannuation entitlement he may hold.

5. The Wife will be responsible for instructing solicitors and for arranging the sale. 

6. I have decided to stay the orders for a period of 30 days to give the Husband a final opportunity to file any application to vary or set aside these orders within 28 days of service of a sealed copy of the Orders.

7. I am satisfied that the Orders set out at the beginning of these reasons are just and equitable.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Sexton

Date:  21 August 2013