RADEL & RADEL
[2019] FCCA 3115
•9 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RADEL & RADEL | [2019] FCCA 3115 |
| Catchwords: FAMILY LAW – Property – default orders. FAMILY LAW – Costs. |
| Legislation: Family Law Act 1975, s.117 |
| Cases cited:: Stanford & Stanford [2012] HCA 52 |
| Applicant: | MS RADEL |
| Respondent: | MR RADEL |
| File Number: | BRC 1099 of 2010 |
| Judgment of: | Judge Spelleken |
| Hearing date: | 22 October 2019 |
| Date of Last Submission: | 22 October 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 9 December 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Biggs of Biggs Fitzgerald Pike |
| The Respondent appeared on his own behalf |
ORDERS
Real Property
That the wife retain for her sole use and benefit absolutely all her right, title to and interest in the real property situated at A Street, Suburb B.
That within thirty (30) days of the date of this Order the wife transfer to the husband all her right, title to and interest in the former matrimonial home situated at C Street, Suburb D in the State of Queensland, more particularly described as Lot … on RP …, Title Reference … (‘the former matrimonial home’).
That contemporaneously with and in consideration for the transfer referred to in Order 2 above:
(a)The husband pay to the wife (by way of payment to the Trust Account of Biggs Fitzgerald Pike Solicitors) the sum of $685,000.00; and
(b)The husband pay by way of refinance or otherwise the loan to the husband and wife from Commonwealth Bank secured by way of first registered Bill of Mortgage over the former matrimonial home, such that the wife is released from all liability she has to the Commonwealth Bank under the terms of the loan secured by such mortgage.
That within fourteen (14) days of the date of this Order the husband do all things and sign all documents necessary to transfer to the wife all his right, title to and interest in the real property situated at E Street, Suburb F, in the State of Queensland more particularly described as Lot … on SP …, Title Reference ….
That pending the Transfer referred to in Order 3 above, the husband be and is hereby restrained from selling, transferring or otherwise alienating from himself or encumbering his interest in the property at E Street, Suburb F in the State of Queensland.
The Company and Trust
That the husband retain for his sole use and benefit absolutely all his right, title to and interest in V Pty Ltd and all his right, title to and interest in the Radel Family Trust.
That the Husband indemnify the Wife and keep her indemnified against:
(a)Any manner of actions, suits, causes of action, arbitrations, debts, dues, costs, interest and demands whatsoever both at law and in equity which the husband and/or V Pty Ltd and/or Radel Family Trust now has or may have at any time or times after the date of these Orders against the wife or which may arise in respect of any act or thing done or omitted to be done by the wife up to and including the date of the making of these Orders whether by reason of the wife having been an employee and/or director and/or officer and/or trustee of the entities referred to in this Order and/or by reason of her shareholding within the entities referred to in this Order and/or any loan account in her name and/or the receipt by her of any monies at any time from the entities referred to in this Order;
(b)Any liability arising under any guarantee given by the wife in respect of any monies advanced or any credit accommodation given to any entities referred to in this Order by any bank or other financial institution;
(c)Any liability for GST, CGT, group tax, PAYG tax, company tax, land tax, superannuation contributions payable for employees of the entities referred to in this Order, debts, claims, actions, demands and choses in action brought by any creditor thereof; and
(d)Any taxation liability of the wife assessed or assessable and remaining unpaid in respect of any payments or distributions made to her by any of the entities referred to in this Order, including but not limited to V Pty Ltd and Radel Family Trust.
Shares
That the wife retain for her sole use and benefit absolutely the shares which she currently owns in W Shares.
That the husband retain for his sole use and benefit absolutely the shares which he currently owns in the X Shares and J Shares.
That the wife transfer to the husband all her right, title to and interest in the jointly owned units in Y Property Group, contemporaneously with and in exchange for the payment to the wife referred to in Order 3(a) above.
That within fourteen (14) days of the date of this Order the husband do all things and sign all documents as may be necessary to transfer to the wife all his right, title to and interest in the jointly owned K Shares, including but not limited to:-
(a)Executing a share transfer form with respect to the shares; and/or
(b)Executing any authority directed to Link Market Services to provide the wife with the Security Holder Reference Number for such shareholding.
That pending the transfer referred to in Order 11 above, the husband be and is hereby restrained from selling, transferring or otherwise alienating from himself any interest he has in the jointly owned K Shares.
Bank Accounts
That the wife retain for her sole use and benefit absolutely the following bank accounts:-
(a)Commonwealth Bank Account No. …;
(b)Commonwealth Bank Account No. …;
(c)Commonwealth Bank Account No. …;
(d)ING Bank Term Deposit;
(e)Commonwealth Bank Term Deposit Account No. …;
That the husband retain for his sole use and benefit absolutely his interest in the following bank accounts:-
(a)Husband’s Suncorp Account No. …;
(b)Husband’s Suncorp Account No. ….
Motor Vehicles
That the wife retain for her sole use and benefit absolutely and the husband transfer to the wife all his right, title to and interest in the Motor Vehicle L currently in the wife’s possession.
That the husband retain for his sole use and benefit absolutely all his right, title to and interest in the Motor Vehicle M utility motor vehicle currently in his possession.
Superannuation
That pursuant to s90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the husband’s interest in Super Fund Z, the wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of $300,000.00 and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.
That Order 17 above has effect from the operative time and the operative time for the purposes of Order 17 above is four (4) business days after the date of service of a copy of these Orders upon the Trustee of Super Fund Z.
That until such time as the superannuation split to the wife pursuant to these Orders can be rolled over into a separate account for the wife:-
(a)The husband provide to the wife no less than twenty-eight (28) days’ notice before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part his entitlement in Super Fund Z.
(b)By this Order, the husband directs and authorises the Trustee of Super Fund Z to communicate with the wife and/or her legal representative:-
(i)To answer any reasonable enquiries as may be made by her or on her behalf from time to time in relation to her entitlement in Super Fund Z; and
(ii)To provide to the wife and/or her legal representative a copy of any notice of any Application or request by the husband which seeks release of entitlements in Super Fund Z insofar as that release may affect the wife’s entitlement in Super Fund Z pursuant to these Orders.
(c)The husband by himself, his servants and/or agents be and hereby are restrained from doing any act or thing which would prevent the wife, her heirs, executors, administrators or nominees from receiving the benefits in Super Fund Z to which she is entitled pursuant to these Orders.
General
That except as otherwise provided in this Order, the husband and the wife are entitled to be the sole legal and beneficial owners of all items of property including (but not limited to) money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively.
That the parties do all acts and things necessary and give all consents and execute all documents and writing to give effect to these Orders in the time periods prescribed.
That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, then a Registrar of this Honourable Court is hereby appointed pursuant to Section 106A of the Family Law Act1975 to execute such deed, document or instrument in the name of the defaulting party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.
That the parties agree that it shall be sufficient evidence of a default in signing a necessary document or instrument as referred to above if the party requiring it to be executed forwards it to the other party (or the Solicitors who act for the other party in the making of these Orders) and within seven (7) days thereof the document or instrument is not properly executed and returned to the party requiring its execution.
That the husband pay the wife’s costs fixed in the sum of $7,400.00 such payment to be made contemporaneously with the transfer referred to in Order 2 above.
That each party have liberty to apply upon the giving of seven (7) days written notice one to the other with respect to the implementation of and/or enforcement of these Orders.
That all outstanding applications be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Radel & Radel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 1099 of 2010
| MS RADEL |
Applicant
And
| MR RADEL |
Respondent
REASONS FOR JUDGMENT
Background
The wife, by an application filed 21 May 2018, seeks a division of property with the husband.
Despite repeated orders to do so, which are referred to later in these reasons, the husband did not file any documents including a response to the wife’s application.
The orders the wife seeks would see an almost equal division of what she claims to be a property pool of $3,782,837.
Her property settlement would be made up as follows:
a)A Street, Suburb B – value $382,500.
b)E Street, Suburb F – value $306,250;
c)A payment by the husband to her of $685,000;
d)Her shares with W Shares $8,776;
e)K shares $75,450;
f)Commonwealth Bank accounts totalling $59,276;
g)An ING Bank term deposit $12,001;
h)A Motor Vehicle L $12,000;
i)A share of the husband’s interest in Super Fund Z $300,000;
j)Her interest in Super Fund Z $24,714;
Total: $1,865,967
The husband would retain as his property, the following:
a)C Street, Suburb D $580,000;
b)His interest in V Pty Ltd $590,955;
c)His X Shares $274,760;
d)His J Shares $1,508;
e)Units in Y Property Group $849
f)His 2 Suncorp Bank accounts $428,472;
g)His Motor Vehicle M utility $15,000;
h)Radel Family Trust $710,090; and
i)Balance of Super Fund Z $236;
Total: $2,601,870
j)Less a payment to the wife $685,000
TOTAL: $1,916,870.
Application for Property Settlement
I must first consider whether to proceed to hear the wife’s application for property settlement on an undefended basis.
As mentioned earlier, the initiating application was filed on 21 May 2018. On the first return date of that application, on 17 July 2018, the application came before Judge Jarrett. Mr Biggs appeared for the wife, as he has throughout these proceedings, and there was no appearance by or on behalf of the husband.
An affidavit of service, however, was filed on the wife’s behalf on 4 June 2018 which indicated that a process server served the application for property settlement, the affidavit of the wife and the financial statement of the wife, all sworn on 1 May 2018, along with the brochure, “Marriage, Families and Separation”, on the husband personally at the Suburb D Hotel at C Street, Suburb D.
On 17 July 2018, Judge Jarrett directed that the wife, no later than 4.00pm on 31 July 2018, file and serve an amended application and he adjourned the application for directions to 25 September 2018. By that time, however, the wife had filed a notice of discontinuance on 26 July 2018.
A fresh initiating application was filed on behalf of the wife on 1 November 2018, along with her affidavit and financial statement. Those documents were served on the husband, again by a licensed process server, on 17 November 2018.
When the application came before me on 24 January 2019, despite the husband having been served some months earlier, there was no appearance by or on his behalf. I made note at that time that he had not sought leave to attend by telephone link, had not filed any documents and had not asked that the application be adjourned.
On that day, I made orders:
a)That the husband file and serve a response, supporting affidavit and a notice of risk by 4.00pm on 18 February 2019;
b)I adjourned the application for mention to 9.30 am on 25 February 2019;
c)I directed that the husband was required to attend Court personally, on 25 February 2019;
d)I directed that in the event the husband did not file his response material and/or attend at Court on 25 February 2019, the wife would be at liberty to seek orders on an undefended basis;
e)I directed the solicitors for the wife advise the husband in writing within seven days of the orders made by the Court that day and the consequences of not attending on 25 February 2019; and
f)I reserved the wife’s costs.
That order was amended the following day, on 25 January 2019, deleting reference to a notice of risk and directing that a financial statement along with a response and affidavit be filed by 18 February 2019.
On 22 February 2019, an affidavit was filed on behalf of the wife by Ms Ruffles. In that affidavit, Ms AA swears to providing notice of the order made by the Court on 24 January 2019 and amended on 25 January 2019, by forwarding those orders by email to the husband on 1 February 2019 to the husband. A copy of that email is annexed to that affidavit and marked 4.
Upon receipt of the amended order, referred to earlier, on 5 February 2019, Ms AA swears to forwarding a copy of that amended order by email to the husband and that email is annexed to the affidavit and marked 7.
When the application was next before the Court on 25 February 2019, the husband did appear and at that time, I made the following orders and directions:
a)The parties attend at a conciliation conference at 11.00am on 30 April 2019;
b)That 28 days prior to the conciliation conference both parties must comply with the provisions set out in part VIIB of the Family Law Act 1975 and the Family Law Superannuation Regulations 2001 by serving a superannuation information form on the other party, specifying any orders sought in relation to any superannuation interest and providing procedural fairness to any superannuation fund trustee by serving the relevant application or response;
c)Within seven days, a schedule was to be prepared of the property of the parties by the wife and served on the husband;
d)The husband, within 14 days, was to identify any additional property or superannuation in which he has an interest that was not included in the schedule, any item of property or superannuation that is agreed or disputed, any liability that is agreed or disputed and any value that is agreed or disputed;
e)Orders were made for the appointment of experts in the event there was no agreement reached with regard to valuation;
f)Directions were made for disclosure with reference to documents which were attached at annexure A to those orders, as well as other documents referred to in orders 17(b), (c), (d) and (e);
g)The wife’s costs of attendance on that day were reserved and the parties were directed that should they fail to resolve issues at the conciliation conference, the matter would be listed for further orders and/or directions at 9.30am on 20 May 2019.
The conciliation conference report dated 30 April 2019 indicates that the conference did not proceed. Notes made by the registrar indicate that the conciliation conference was vacated as the husband asserts poor health and as unable to attend. The matter remained listed however on 20 May 2019.
On 20 May 2019, the husband did not appear. Mr Biggs raised with me the husband had said that he was unwell and unable to participate in the proceedings. As a result I directed that the husband file and serve an affidavit of his psychologist and/or any other health professional he was attending to provide evidence of his inability to participate in these proceedings, by 4.00pm on 17 June 2019.
It was further directed that in the event the husband fails to file his material by 4.00pm on 17 June 2019, I might consider making orders by default. Again, the wife’s costs were reserved and the matter was adjourned for mention to 9.30am on 21 June 2019. It is noted that by that date, namely 20 May 2019, the husband had still not filed any response, affidavit or financial statement.
On 21 June 2019, again the husband did not appear and the matter was adjourned for an undefended hearing to 9.30am on 13 September 2019. The applications were further adjourned to 22 October 2019 and the husband was informed of the new date.
The husband did attend on 22 October 2019. On that day I made inquiries of him as to whether he had filed any documents or attempted to file any documents including a response, affidavit, financial statement and/or any affidavit or report from a medical practitioner. He indicated that he had not. I then asked whether he intended filing any material in these proceedings and I placed on the record that he indicated that he would not be filing any documents.
I was then referred by Mr Biggs to a further affidavit of Ms Ruffles filed 2 September 2019 to support wife’s application that the matter be heard on an undefended basis. That affidavit sets out the history of litigation referred to above and the husband’s failure to file documents as directed by the Court which is also referred to above.
The affidavit also provides other relevant evidence that goes to the wife’s argument that the application should be heard on an undefended basis, including as follows:
a)On 8 March 2019, Ms Ruffles forwarded an email to the husband indicating that her client intended to proceed with her application for property settlement, reminding him that he was required to file and serve his response material and that the three real properties owned by the parties would need to be valued. She provided, in that email, the names and quotes from three real property valuers and asked, in accordance with the directions made for the appointment of experts, for him to nominate one;
b)The husband’s response to that email is marked HER5 and it reads:
Well iam so sorry because it’s not going to happen until my wife sits with me and explains her self or i shall have her charged for misappropriation of funds from my company V PTY LTD.
c)On 26 March 2019, Ms Ruffles again sent an email to the husband notifying him that her client had nominated Mr N, Valuers, to value the real properties and enclosed a letter of instruction and requested that he sign the letter and return it to her by 3 April 2019;
d)The husband’s response was sent on 26 March 2019 and is marked HER7. That email says this:
Like i have told you before it’s not going to happen until such time as my wife sits down with me and explains to me why she’s doing this
and not only that my mental health is currently classed as acute and i am under care of the acute mental health team and also a psychologist
and therefore iam in no state of mind mentally to be going through these requirements or any of the requirements or supplying any of the required documents required by the courts and i will be petitioning the courts for a stay of proceedings on this matter until such time that my medical team feel my mental health and my panic disorder and general anxiety disorder is stable due to me being physically assaulted by the warrant server you people employed to try and serve me with papers in 2018 and i am able to correctly complete the necessary documents without incriminating myself.Please also advise my wife that i will be issuing a cross claim against my wife for the misappropriation of funds taken from the company V Pty Ltd.
I will also ask that my wife reads this and that you make her understand that there will be nothing left after all the parasites take their portion of the hard earned money that i worked for since i was 8 years old to give my whole family everything they ever wanted and needed and at the end of the day when there is nothing left nobody will get anything including the parasites or our two beautiful kids who i hoped would be OK in their future life but who will now get nothing.
Mr Radel
I pause there, to indicate as referred to above that I made directions for the husband to file medical evidence of his mental health issues that might render him unable to give instructions or understand the proceedings or require an adjournment of the matter to prepare material but he did not and indicated that he would not file such a document.
On 28 March 2019, the solicitors for the wife forwarded the wife’s disclosure documents to the husband. In response, the husband sent an email dated 28 March 2019, the contents of which included as set out in paragraph 19 of Ms Ruffles’ affidavit the following:
once again I will tell you that you can send as much shit as you like nothing is going to happen I notice that you scum have already taken close to ten thousand dollars from my wife you should be ashamed of yourself you should be try to help people fix things not make them worse so please advise my wife that until such time as she sits down with me to explain why she is doing this I will be doing nothing and I don't care what any court says they are not the boss of me there is only one person who controls my life and that is me so please use your brains and explain to my wife that she can keep going down this path and you scum will keep extracting dollars from her and as I have said before there will be nothing left at all for anybody.
At paragraph 20 of the affidavit, Ms Ruffles informs the Court that:
a)on 5 April 2019, she received an email from my chambers responding to a letter sent to the Court by the husband requesting a stay of the proceedings;
b)on 23 April 2019, Ms Ruffles received an email from the husband requesting an adjournment;
c)on 24 April 2019, an email was sent to the husband by the wife’s solicitors indicating the wife would not agree to an adjournment of the conciliation conference as there was no medical evidence provided in relation to his health; and
d)on 26 April 2019, the solicitors for the wife received an email from the husband attaching a medical certificate from a general practitioner dated 24 April 2019. The husband went on to advise in that email that he would not be available for the conciliation conference. That email and medical certificate is annexure HER13 to the affidavit.
As mentioned earlier, when the application came before me on 22 October 2019, the husband confirmed that he had not filed any documents, including any medical evidence and that he did not intend filing any response to the wife’s application, any affidavit or any financial statement.
Given the many orders referred to above which the husband has not complied with, in particular by not filing any material in these proceedings, including any evidence of any medical practitioner that he is unable to participate in the proceedings or prepare material, that he has failed on almost every occasion to attend at the Court, either at the conciliation conference or at directions hearings, other than on 22 October 2019 and on the basis that he has clearly indicated that he will not be filing material, it is my view that this matter will not be advanced by any further adjournment.
On that basis, I intend to decide what would be a just and equitable division of the parties’ property.
I have, in determining this application, been referred to and have read and considered:
a)the amended initiating application filed 2 September 2019;
b)the affidavit of the wife filed 2 September 2019; and
c)the affidavit of Ms Ruffles, to the extent that it is relevant to the division of the parties’ property.
I have also been provided with a document which sets out, as best as it is understood by the wife, the pool of assets of the parties and the effect of the proposed orders for the division of the parties’ property by the wife’s amended application filed 2 September 2019.
The relevant history of the parties’ relationship is set out in the wife’s affidavit and without any contest from the husband, I accept that it is as follows:
a)The parties commenced their cohabitation on or about … 1989 and on … 1989;
b)They separated on a final basis on 15 February 2018;
c)There are two adult children of the marriage:
i)Mr H, born … 1994; and
ii)Ms G, born … 1996.
d)The wife was born on … 1961 and is now 57;
e)The husband was born on … 1958 and is now 61.
The Law
The first task for the Court is to determine whether it is just and equitable for orders to be made altering the parties’ interests in property.
In Stanford & Stanford[1] the majority held:
[42] In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
[1] Stanford & Stanford [2012] HCA 52.
The Court has an “extraordinarily wide” discretion to make findings in relation to proceedings pursuant to s.79, but it must exercise this discretion in accordance with established legal principle (see De Winter (1979) FLC 90-605; Norbis (1986) FLC 91-712).
In this matter, given the length of the relationship, that the parties have purchased and sold property during that relationship, that there is currently property in both the sole and joint names of the parties including real property, shares and the like and that both parties have made a contribution to the acquisition, maintenance and improvement of the property, it is my view that it is just and equitable to divide their assets.
The next step in determining the proper division of property is to identify the property pool. In this regard, it is clear from the wife’s affidavit that she was very much in the dark, so to speak, with regard to the accumulation of assets and the value of those assets.
Given the husband’s lack of cooperation and failure to disclose any documents it may be that there are other assets about which the wife has no knowledge and/or the value of the assets disclosed may be inaccurate, the asset pool may in fact be greater than is contained in the document provided by the wife’s solicitors but it is the only evidence available to the wife and therefore to the Court. However, given that much of what is referred to in the document which is now Annexure A to these reasons came from subpoenaed documents including bank statements and/or from estimates of value of real property from qualified agents, or from inquiries of superannuation trustees, I accept that the asset pool is as follows:
ASSET
VALUE ($)
REAL PROPERTIES Former matrimonial home situated at C Street, Suburb D registered in the name of myself and Mr Radel
E580,000.00
A Street, Suburb B
382,500.00
Husband’s interest in Unit situated at E Street, Suburb F
E306,250.00
BUSINESS Husband’s interest in V Pty Ltd
- Suncorp Account No. … - $474,386.00
- 1,532 X Shares @ $76.09/share ($116,569.00)
590,955.00
Husband’s interest in Radel Family Trust
- Suncorp Account No. … ($710,090.00)
710,090.00
SHARES Jointly owned K Shares (2,135 shares @ $35.34/share)
75,450.00
Jointly owned units in Y Property Group (333 stapled units @ $2.55/unit)
849.00
Wife’s W Shares (314 shares @ $27.95/share)
8,776.00
Husband’s X Shares (3,611 @ $76.09/share)
274,760.00
Husband’s J Shares (400 shares @ $3.77/share)
1,508.00
BANK ACCOUNTS My Commonwealth Bank account No. …
710.00
My Commonwealth Bank account No. …
2,727.00
My Commonwealth Bank account No. …
319.00
My ING Bank Term Deposit
12,001.00
My Commonwealth Bank Term Deposit account No. …
55,520.00
Husband’s Suncorp Account No. …
197,791.00
Husband’s Suncorp Account No. …
230,681.00
MOTOR VEHICLES Wife’s motor vehicle –Motor Vehicle L
E12,000.00
Husband’s motor vehicle – Motor Vehicle M utility
E15,000.00
SUPERANNUATION Wife’s interest in Super Fund Z
24,714.00
Husband’s interest in Super Fund Z
300,236.00
NET TOTAL
$3,782,837.00
Of course, as mentioned earlier, given the complete failure of the husband to provide any sworn evidence to the Court in relation to what makes up the pool of assets of the parties and the value of that pool, and/or to provide any disclosure, the Court could not be confident that the pool as referred to above is an accurate reflection of the assets of the parties that is available for distribution between the parties, and in those circumstances appropriate for the Court to take a robust approach to determining the value of the pool.
Contributions
The wife acknowledges in her affidavit that at the commencement of the relationship while she brought to the relationship furniture and a motor vehicle and was in employment, the husband came to the relationship as the registered proprietor of a property at O Street, Suburb D, but with a loan encumbering it to the Commonwealth Bank.
The wife acknowledges that she did not and does not know the equity the husband had in the C Street, Suburb D’s property, but believes it may not have been significant. The husband referred to bringing that property to the relationship, but that came from the bar table; there is no sworn evidence from him with regard to the value of that property at the commencement of the relationship and what, if any, was owed to the Commonwealth Bank at that time for the Court to determine the value of that initial contribution.
The wife also acknowledges that the husband was the proprietor of a business known as “P Pty Ltd” conducted by V Pty Ltd. That business, the wife explains, conducted business from premises at Q Street, Suburb R, which were rented premises. Again, she is not aware of the value of that business, but acknowledges that the husband brought the business to the relationship. She believes that the business owed money to the Commonwealth Bank, but again cannot quantify same, particularly given the parties commenced cohabitation some 30 years ago and in circumstances where, of course, the husband also provides no evidence of its value at the commencement of the relationship.
While the husband told the Court, again from the bar table, that he brought other real property to the relationship, he does not identify or swear to that in any documents.
I must acknowledge, however, the husband’s initial contribution to the relationship, but again, it is difficult to understand the weight that should be given to that initial contribution, particularly in circumstances as indicated earlier that there is no evidence of the value of that contribution and that the relationship was of about 30 years duration.
At the commencement of the relationship, the wife was employed full‑time by Employer AA and continued to work full‑time in that capacity until a couple of months before Mr H’s birth in … 1994. After Mr H’s birth, she was a full‑time mother and carried out, she says, the vast majority of the home duties. The second child to the parties, Ms G, was born in … 1996 and the wife continued to be the primary carer for both Mr H and Ms G after Ms G’s birth.
The wife, who was a qualified tradesperson before cohabitation, after Ms G’s birth worked from home and did some part‑time work at a shop at Suburb S and later worked as a customer service officer at a shop at Suburb D. She resigned from her employment in 2008, but continued her role as homemaker and parent to the children.
She explains that the husband continued to operate the business until it was sold in … 2006. She is not aware of the sale price or net sale proceeds from the sale of the business or what use was made of those sale proceeds, however there is a reference in the pool of assets to the husband’s interest in V Pty Ltd being a Suncorp Account with a balance of $474,386 and $15,032 X shares valued at $116,569 making the total value of $590,955.
The wife explained that the husband took some time off after the sale of the business, but returned to employment in various positions including as a professional at Employer T until about 2016, then at Employer BB at Suburb CC.
Although she has limited knowledge of same, she does refer to the purchase and sale of various real property during the relationship.
She acknowledges that the husband received, she believes, approximately $200,000 on the death of his mother in about February 2017 when her house was sold. Again, it is not clear where those moneys were deposited, however it may be that they are accounted for in the husband’s bank accounts which are identified in the pool.
Whilst I acknowledge the initial contribution of the husband as explained, at least by the wife as indicated earlier, I cannot without the benefit of the husband providing any evidence of same, determine the value of that initial contribution. Most likely given the real estate identified in the pool that was accumulated during the relationship it would not be inappropriate to suggest that the husband’s property was used as some springboard for the purchase of other property. The business, of course, until its sale would have generated income for the family. Again, there is no evidence to inform the Court as to the value of the contribution of the business to the household however I note as mentioned earlier that the wife was in some limited employment after the birth of the children and I can therefore presume that most of the income to the household came from the husband’s employment or income from the business.
Whilst the husband, again from the bar table, was very critical of the wife’s contribution during the relationship, indicating that it was his hard work which generated the parties’ wealth, it is not in dispute, that the wife was in some paid employment during the relationship, but that otherwise she was the children’s primary carer. There is also no evidence before the Court of the income the business generated during the relationship so as to compare that financial contribution to the wife’s non‑financial contribution.
I note that the wife deposes to the husband being extremely frugal during the relationship and that she was given very little funds by the wife who did not allow her access to bank accounts to meet the expenses of the family which she was expected to meet from a fairly small weekly amount paid to her by the husband.
Other than the greater initial financial contribution made by the husband and the contribution of his mother’s estate later in the relationship, I consider the contributions made by the husband and wife as equal. As referred to earlier I am unable to place a value on either the husband’s initial contribution or the monies received from his mother’s estate and of course I have to consider the length of the parties’ relationship, spanning 30 years. Those additional contributions made by the husband in my view are worthy of some minimal uplift in his favour.
Turning then to the future needs of the parties, as mentioned earlier, the wife is 57, the husband is 61. It is not clear whether the husband is currently in employment and if he is in employment, the income he receives.
He has referred at times to having mental health issues which cause some difficulties for him, but again despite directions to do so, he has filed no evidence from any medical practitioner in relation to any health issues that might impact on his income earning capacity although, of course, I must take into account that he is 61.
The wife has referred to various health issues that create difficulties for her to obtain employment, including that she suffers from fibromyalgia, chronic fatigue and that she is a long time migraine sufferer. She also sees a specialist, Dr U, for clinical depression. She also suffers from social anxiety which often brings on the migraines.
In relation to her earning capacity, I also note that other than being 57, she has been out of the workforce now for a significant period and that her employment as a customer service officer with Employer AA ceased many years ago. She has earned an income in the past from trades work, however, there is no indication that she could earn sufficient income from trades work even if she was able, given her physical difficulties, to earn an income from trades work what that income might be.
Given the employment history of the parties and despite their age that the husband in my view has a greater earning capacity than the wife even after taking into account the significant assets that will be available to the wife by the property division she seeks, it is my view that a slight uplift in the wife’s favour when considering the parties’ future needs is appropriate.
Overall taking into account the parties’ contribution which slightly favour the husband and the parties’ future needs which slightly favour the wife, it is my view that an equal division of the parties’ assets as proposed by the wife is appropriate.
Justice and Equity
It is also my view that an equal division of the parties’ assets would be a just and equitable result in this matter. The effect of an order that divides the parties’ property equally or almost equally, namely 49.4 percent to the wife and 50.6 percent to the husband, would be as follows:
Wife’s Proposed Settlement
ASSET
VALUE($)
A Street, Suburb B
382,500.00
E Street, Suburb F
306,250.00
Wife’s W shares
8,776.00
Joint K Shares
75,450.00
Wife’s bank accounts
71,277.00
Motor Vehicle L motor vehicle
12,000.00
Wife’s interest in Super Fund Z
24,714.00
Superannuation split – Husband’s interest in Super Fund Z
300,000.00
Cash payment from husband
685,000.00
NET TOTAL
1,865,967.00
Husband’s Proposed Settlement
ASSET
VALUE($)
Former matrimonial home –C Street, Suburb D
580,000.00
V Pty Ltd
590,955.00
Radel Family Trust
710,090.00
Y Property Group Units
849.00
Husband’s X shares
274,760.00
Husband’s J Shares
1,508.00
Husband’s Suncorp Bank accounts
428,472.00
Motor Vehicle M
15,000.00
Balance interest in Super Fund Z (after payment split)
236.00
LESS provision for payment of cash settlement to wife
(685,000.00)
NET TOTAL
1,916,870.00
A division in those terms will provide a home for each of the parties to reside in, significant funds from which they can earn some income, but allow them to support themselves for some time. In those circumstances it is my view that there needs to be no further adjustment to either the wife or the husband to effect a just and equitable division of their property.
In those circumstances, I make the orders proposed by the wife.
I note that those orders do provide some protection for the wife. In that regard, I note order 12 which restrains the husband from selling or dealing in any way with his shares. Order 19 would prevent the husband from dealing with his superannuation. In circumstances where the husband has failed to participate in these proceedings, it is the Court’s view that it is important to protect assets currently in the control of the husband to prevent the property that he controls, which is most of the property, being dealt with in a way which would prevent the wife from receiving her proper entitlement to a property settlement.
I note that the husband referred, in correspondence to the wife’s solicitors and mentioned again from the bar table when the matter was before me today, that the wife took assets from their relationship. The wife acknowledges removing funds from the account to purchase a property in her name, however, those funds are accounted for in the pool.
Costs
The wife seeks a costs order in the sum of $7,400. Section 117 of the Family Law Act 1975 (“the Act”) provides that each party should bear their own costs, but section 117(2) of the Act sets out circumstances that the Court can consider in making an order that one party pay all of the other party’s costs.
In this matter, I have taken into account as follows:
a)Given the husband’s failure to comply with orders to produce a financial statement or to provide disclosure, the wife’s solicitors were put to a significant cost in issuing subpoenas, considering that subpoenaed material and putting together a pool of assets;
b)The wife has been wholly successful in obtaining orders from the Court for a property settlement, as least as proposed in her amended application and not significantly different to that proposed in her initiating application. I note that that initiating application also was filed at a time when she had really very little idea of what was in the pool of the parties’ assets and/or its value;
c)The conduct of the husband in failing to comply with orders and directions made by the Court, in my view is also an important factor to take into account;
d)Even with an equal division of the parties’ property, the husband will still retain property with a value of at least $1,916,870.00 which is obviously sufficient to meet a costs order;
e)Costs in the amount of $7,400, given that these proceedings were commenced on 1 November 2018, and there have been five Court events and an abandoned conciliation conference is a reasonable amount.
In those circumstances, I am satisfied the amount sought by the wife is appropriate. It is also the Court’s view that it would only cause further delay in finalising the proceedings and further cost to the wife if the Court was to make an order that her costs be agreed or taxed. I have no confidence that the husband would even reply to any request to consider a schedule of taxed costs. In those circumstances, the wife would be put to the cost of having her costs taxed and then the process of coming to the Court and asking the Court to determine what might be an appropriate amount of costs to the paid by the husband.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Spelleken
Date: 9 December 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Procedural Fairness
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