RANKIN & RANKIN

[2016] FamCA 250

FAMILY COURT OF AUSTRALIA

RANKIN & RANKIN [2016] FamCA 250

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – equal contributions – consideration of s 75(2) factors – where the husband has failed to meet his child support obligations – where the husband has a greater income earning capacity – where the wife has the primary care of the children of the marriage – where the parties non-superannuation interests have modest value – adjustment of 20 per cent made in favour of the wife

FAMILY LAW – PROPERTY SETTLEMENT – Legal fees – where the husband has paid his legal fees from income post-separation – where the wife seeks that her solicitors be paid an amount equal to that paid by the husband to his solicitors – where the wife made contributions  to the development of the husband’s career – where the husband failed to service the mortgage liabilities on the parties’ properties pursuant to court orders at the time he made payments of his legal fees –orders made that an amount be paid to the wife’s solicitors

FAMILY LAW – SPOUSAL MAINTENANCE – where the wife seeks a lump sum payment of spousal maintenance – where the husband has previously failed to meet his obligations pursuant to court order to meet the mortgage liabilities – where the husband has a substantially greater income than the wife – where the husband has failed to meet his obligations to make full and frank disclosure in relation to his income – final orders made for lump sum spousal maintenance

FAMILY LAW – CHILD SUPPORT – Application by the wife for a departure order, arrears of child support based upon such departure order and non-periodic child support – where the husband concedes the wife’s application for non-periodic child support and disputes a departure order – where the husband has lodged an estimate of his annual income that grossly understates his actual income – just and equitable to make a departure order – final orders made varying the husband’s child support income and providing for non-periodic child support for the children

Child Support (Assessment) Act 1989 (Cth)
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Bevan & Bevan [2013] FamCAFC 116
Brodie & Brodie [2009] FamCAFC 6; 41 Fam LR 18
Chorn & Hopkins [2004] FamCA 633; (2004) FLC 93-204
Clauson & Clauson (1995) FLC 92-595
Gyselman & Gyselman (1992) FLC 92-279
Harrington & Harrington [2007] FamCA 451; (2007) FLC 93-317
Stanford v Stanford (2012) 247 CLR 108
Watson & Ling [2013] FamCA 57

APPLICANT: Ms Rankin

RESPONDENT: Mr Rankin

INDEPENDENT CHILDREN’S LAWYER: Danielle Webb Lawyer

INTERVENER:  Belleli King & Associates

FILE NUMBER: DGC 2859 of 2013

DATE DELIVERED: 29 February 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 14 - 15 & 18 May 2015; 22 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Ingleby

SOLICITOR FOR THE APPLICANT: DMWR Partners

COUNSEL FOR THE RESPONDENT: Mr McInnis

SOLICITOR FOR THE RESPONDENT: LY Tonge & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Danielle Webb Lawyer

COUNSEL FOR THE INTERVENER: Ms Colla

SOLICITOR FOR THE INTERVENER: Belleli King & Associates

Orders

1. That the husband and the wife forthwith do all acts and things and sign all necessary documents to authorise the release of the proceeds of sale of the real properties at B Street, Suburb C in the State of Victoria; L Street, G Town in the State of Western Australia; and K Street, H Town in the State of Western Australia held on trust by the wife’s solicitors to be applied as follows:-

   (a)Firstly, the sum of $170,000 to the wife’s solicitors in payment of her legal costs and disbursements;

   (b)       Secondly, the balance then remaining be divided as follows:-

   (i)To the wife 70 per cent;

   (ii)To the husband 30 per cent less:-

   A.The sum of $36,872.96 in unpaid school fees to be paid to M Inc. and N Inc.;

   B.The sum of $9,771.96 to the wife in respect of arrears of child support.

   C.The sum of $65,000 by way of lump sum spousal maintenance to the wife.

2. That the wife retain:-

   (a)       The motor vehicle1 with registration number …;

   (b)       The motor vehicle 2 with registration number …;

   (c)       Her bank accounts; and

   (d)       The contents of the former matrimonial home.

3. That the husband retain:-

   (a)       The motor vehicle 3 with registration number …; and

   (b)       Rankin Pty Ltd.

4. That the husband do all acts and things as may be required to indemnify the wife and keep her indemnified with respect to any taxation liability arising from her involvement in the Rankin Family Trust or any other entity controlled by the husband.

5. That paragraphs 6 to 9 (inclusive) of these Orders are binding on the Trustee of MLC Wrap Super (“the Fund”).

6. That the base amount of $250,000 be allocated to the wife out of the interest of the husband’s interest in the Fund.

7. That pursuant to s 90MT(1)(a) of the Family Law Act 1975 (Cth) a splittable payment becomes payable in respect of the husband’s interest in the Fund, the wife shall be entitled to be paid an amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount 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.

8. That paragraphs 6 and 7 have effect from the operative time.

9. The operative time for the purposes of paragraphs 6 and 7 of these Orders is four (4) business days after the date of service of these Orders upon the Trustee of the Fund.

10. That until such time as the Superannuation split to the wife pursuant to   these Orders can be rolled over onto a separate account to 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 the Fund.

    (b)The husband direct and authorise the Trustee of the Fund to communicate with the wife and/or any person authorised by her in writing:-

    (i)To answer any reasonable inquiries as may be made by her or on her behalf from time to time in relation to her entitlement in the Fund, and

    (ii)To provide to the wife and/or her authorised representative with a copy of any notice of any application or request by the husband which seeks release of entitlements in the Fund in so far as that release may affect the wife’s entitlement in the Fund 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 the Fund to which she is entitled pursuant to these Orders.

11. That in the event that the Superannuation split to the wife pursuant to these Orders can be rolled over into a separate account to the wife each of the parties do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.

12. That unless otherwise specified in these orders and save for the purposes of enforcing any monies due pursuant to these orders:-

    (a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;

    (b)Insurance policies remain the sole property of the beneficiary named therein;

    (c)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

13. That the husband do all acts reasonable required of him by the wife and/or religious court to give the wife a divorce document as soon as is reasonably practicable, and such acts to include without being limited to:-

    (a)Completion of any necessary document; and

    (b)Attendance at any hearing convened by the religious court in or any religious officer authorised by the religious court.

14. That pursuant to s 117 of the Child Support (Assessment) Act 1989 (Cth) there be a departure from the administrative assessment of child support payable by the husband to the wife for the children D born … 2003, E born … 2004 and F born … 2009 and for the purposes of calculating the child support obligation of the husband the annual child support income for him shall be fixed as follows:

    (a)For the period commencing 1 January 2016 to 31 December 2016 the sum of  $243,000; 

    (b)For the period 1 January 2017 to 31 December 2017 the sum of $243,000 plus CPI.

15. That pursuant to s 124 of the Child Support (Assessment) Act1989 (Cth), the husband pay all tuition fees, extracurricular expenses, uniforms and equipment consequential to attendance by the children to the schools attended by them as at the date of hearing.

16. That all extant applications be otherwise dismissed.

IT IS DIRECTED

That all documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rankin & Rankin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 2859  of 2013

Ms Rankin

Applicant

And

Mr Rankin

Respondent

And

Independent Children’s Lawyer

And

Belleli King & Associates
Intervener

REASONS FOR JUDGMENT

Introduction

1. Mr Rankin (“the husband”) and Ms Rankin (“the wife”) seek a determination of their competing applications pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). In addition, the wife seeks orders with respect to spousal maintenance and child support pursuant to ss 117 and 124 of the Child Support (Assessment) Act 1989 (Cth) (“the Child Support Assessment Act”).

2. The parties shared a relationship of between ten years (as alleged by the wife) or 13 years (as alleged by the husband).  There are three children of the marriage: D, aged 12, E, aged 11, and F, aged six.  The children live with the wife and spend supervised time with the husband.

3. The parties have a modest pool of assets, comprising of the proceeds of sale of three properties totalling approximately $803,000, some chattels and superannuation valued at $1 million.  The husband is employed as a health care professional and the wife is unemployed.

4. The wife seeks an 80/20 adjustment of property in her favour and further adjustments to take into account arrears of child support, arrears under mortgages which the husband was obliged to pay pursuant to Court order, as well as orders for spousal maintenance and child support. 

5. At the commencement of the hearing the husband sought an equal division of property.  During the hearing his position altered and he sought a 65/35 division of property in favour of the wife.

6. These are my reasons for judgment with respect to those applications.

The Parties

1. The wife was born in Country O in 1969 and is aged 46 years. She is currently unemployed.

2. The wife studied in Country O and graduated in 1994.  She completed her traineeship in 1997.  In 1996 the wife migrated to Country P and in 1997 commenced a training program.  She did not complete that program due to her migration to Australia in 1999.  The wife’s qualifications are not recognised in Australia.

3. Since migrating to Australia, the wife has not worked, save for some short periods, as a cleaner and bookkeeper in the early years of the parties’ relationship and in recent times, mending clothing and cleaning wigs for her friends for modest sums.

4. The wife is in good health.

5. The wife has an adult son from a previous marriage, Mr Q, who is aged 21.  Mr Q is engaged in tertiary studies and lives with the wife.

6. The husband was born in Country O in 1968 and is aged 48 years.  He migrated to Australia in 1991.

7. The husband is employed as a health care professional.  The husband deposes that he suffers from anxiety, depression, high blood pressure, hypoandrogenism, high cholesterol, diabetes and osteoarthritis and that as a result he feels unwell and lethargic.  The husband alleges that these ailments impact on his capacity to work.   

8. The husband has a child from a previous marriage, Ms R, who is aged 22 years and lives independently.

Background

1. The parties commenced cohabitation when the wife moved to Australia with Mr Q in November 1999.  The parties married in 2000.

2. On the wife’s account, the parties finally separated in July 2010, following what she alleges were years of physical, verbal and emotional abuse. The husband alleges that the parties finally separated in July 2013 following an altercation involving the husband, the wife and Mr Q.  At that time, the parties were living with the children in the former matrimonial home in Suburb C, although the wife maintains that they were living separately under the one roof at that time.

3. The parties met in Country O when both were studying.  The husband initiated telephone contact with the wife in about mid-1996 following his divorce from his first wife.  At that time the wife was living and working in Country P.  The husband visited the wife in Country P and in July 1999 the wife travelled to Australia to visit the husband at his home in Perth.  The wife returned to Country P and following her return discovered she was pregnant.  In her trial affidavit, the wife deposes that when informed of the pregnancy the husband told her that the baby was not his child and that she could “do whatever [she] wants with it”.  The wife clarified that evidence during cross-examination, stating that as she was not of the same religious faith, the husband did not acknowledge the child as his.  The wife deposes that she terminated that pregnancy. 

4. The parties maintained their relationship notwithstanding that event, and in November 1999 the wife and the child Mr Q migrated from Country P to Australia.

5. At the commencement of the parties’ cohabitation the husband had the following interests:-

   ·Property at R Street, Suburb T, Western Australia;

   ·motor vehicle 2; and

   ·Furniture.

6. At the time of her arrival in Australia, the wife deposes that she had savings of approximately $5,000 but otherwise had no assets of significance.  In his trial affidavit filed 1 May 2015 the husband takes issue with that evidence alleging that in fact the wife held only $3,000 at the time of the commencement of their relationship. 

7. That approach was consistent with the manner in which the husband presented much of his case.  Little turns on whether the amount then held by the wife was $3,000 or $5,000, but from the husband’s perspective, it was a matter of such significance that he sought to challenge the wife’s evidence.  In a similar vein, the husband challenged the wife’s evidence as to her pregnancy in 1999, his response to that evidence being that “she has never showed me any evidence or record of this pregnancy”.  Counsel for the husband was instructed to cross-examine the wife in relation to that issue.  Again, this was a matter not relevant to the issues to be determined by me; that he instructed his Counsel to challenge the wife’s evidence with respect to that issue was indicative of the husband’s petty and hostile attitude and approach to the wife and to the proceedings generally.  That approach did not reflect well upon the husband.

8. Upon the wife’s arrival in Australia, she and Mr Q commenced studies to convert the husband religion.  Their conversion was completed by the end of 2000 and the parties had a religious wedding ceremony in January 2001, they having previously married in 2000 in a civil marriage ceremony.

9. During that period the husband’s daughter, Ms R, lived with the parties for significant periods.  Due to the husband’s work commitments, the primary care of Ms R was left to the wife during those periods.

10. It is common ground that throughout the marriage the wife was primarily responsible for the day-to-day care of the children and the other homemaker responsibilities. 

11. In 2003 the parties sold the property at S Street and purchased the property at U Street, Suburb T, Western Australia (“U Street”).  The proceeds of sale of S Street were applied to the purchase of U Street.  The parties renovated U Street between 2003 and 2005. 

12. In 2004 the husband completed professional training (which he had commenced in 2001) and commenced operating a business.  The wife assisted the husband with the management of the business, attending to administrative tasks, advertising, and cleaning.  The wife also undertook research for the husband from time to time. 

13. In 2005 the parties purchased the property at K Street, H Town, Western Australia (“H Town”) and in 2006 the parties purchased another investment property at L Street, G Town, Western Australia (“L Street”).  Substantial amounts were borrowed by the parties to finance the acquisition of those properties.

14. The parties separated for a period of some months in 2007.  On 28 August 2007 the wife obtained an interim Violence Restraining Order against the husband in the Magistrates’ Court at Perth due to the husband’s alleged violent behaviour. On 27 October 2007 the husband provided the wife with a statutory declaration which stated that he would:-

    … commit to further counselling and anger management and not to … humiliate any members of the family.[1]

    [1] Annexure NR 14 of the wife’s trial affidavit filed 16 March 2015 (“the wife’s trial affidavit”).

15. The parties reconciled and in early 2008 the family relocated to Melbourne.  They commenced living in the property at B Street, Suburb C, which they had purchased in 2007.  The parties sold U Street following their move to Melbourne in 2008.

16. The parties separated again in July 2010.  On 13 July 2010 the wife obtained an interim intervention order against the husband in the Magistrates’ Court of Victoria at Suburb V.  At that time, the wife was living in a refuge with the children.  The husband cancelled the wife’s credit cards and disconnected her mobile telephone and internet services following the separation.  On 26 July 2010 the husband entered into an agreement that he would reinstate the credit, internet and phone facilities and that he would continue to receive anger management counselling.[2]

    [2] Annexure NR20 to the wife’s trial affidavit.

17. Between September and November 2010 the wife and children lived at a women’s refuge and at the home of friends.  In December 2010 they returned to Suburb C to live as the husband had vacated the home.

18. In December 2011 the husband returned to live at the home.  Whether the parties had reconciled or were living separately under the one roof at that time is a contentious issue between them.  However, I am satisfied that little turns on this issue in determining the parties’ respective applications. 

19. The wife again vacated the former matrimonial home in March 2012 and lived in a rental property with the children.  She returned to the home with the children in April 2013. 

20. In July 2013 the wife obtained a further intervention order against the husband due to an alleged assault.  The husband was also charged with recklessly causing injury, intentionally causing injury, possessing prohibited weapons without exemption and contravening a family violence order.

21. In February 2015 the husband was found guilty of recklessly causing injury to the wife, intentionally causing injury to the wife, and of contravening a family violence intervention order.  The husband pleaded guilty to a charge of possessing prohibited weapons without exemption.  As a result of those convictions, the husband was sentenced to a term of four months’ imprisonment for each assault to be served concurrent with each other and wholly suspended for a period of 12 months.  In addition the husband was fined $500 without conviction for contravening the family violence interim intervention order.  At the time of the hearing before me, the husband had an appeal pending with respect to those convictions.

1. Proceedings were commenced in the Federal Circuit Court at Dandenong by Initiating Application filed on behalf of the husband in October 2013.  That application sought both parenting and property orders.  In her response filed in October 2013 the wife too sought orders with respect to parenting and property matters. 

2. In February 2014 those proceedings were transferred from the Federal Circuit Court to the Family Court of Australia. 

3. On 31 October 2014 orders were made in a Judicial Duty List that provided for the parties to do all acts and things required to sell the two investment properties held by them in Western Australia.  Pending the sale of those properties, the husband was ordered to pay the monthly mortgage repayments and outgoings with respect to the Western Australian properties and with respect to the former matrimonial home at Suburb C. 

4. In November 2014, I made orders for the preparation of the matter for final hearing.  The matter was listed for hearing to commence before me on 27 April 2015. 

5. The matter was listed for mention before me on 20 March 2015.  At the time of that mention hearing, the husband had failed to comply with my trial directions.  Pursuant to those directions, the husband was to have filed his trial affidavit material by 6 February 2015.  There was no appearance by the husband or his lawyer at the mention hearing on 20 March 2015.  The wife had filed material in compliance with my directions.  As a consequence, I made orders that day that the hearing proceed on the basis that the wife be treated as the applicant.

6. The matter was listed for further mention before me on 20 April 2015 at the request of the husband.  At that time, the husband had still not filed his trial affidavit material.  That day an application was made on behalf of the husband for an adjournment of the final hearing.  That application was opposed by the wife and the Independent Children's Lawyer (“the ICL”).  

7. Upon hearing submissions I made orders vacating the originally listed trial date and listed the matter for final hearing to commence on 14 May 2015.  I also extended time for the husband’s compliance with orders for filing his trial affidavit material to 1 May 2015.

8. The hearing commenced before me on 14 May 2015. 

Material Relied Upon

1. The wife relied upon the following documents:-

   ·Amended Response to Initiating Application of the wife filed 29 October 2014;

   ·Outline of Case Document of the wife filed 16 April 2015;

   ·Affidavit of the wife filed 16 March 2015;

   ·Affidavit of Mr Q filed 12 January 2015;

   ·Affidavit of Ms W filed 12 January 2015;

   ·Affidavit of Mr X filed 11 May 2015; and

   ·Amended Financial Statement of the wife filed 16 March 2015.

2. The husband relied upon the following documents:-

   ·Initiating Application of the husband filed 19 October 2014;

   ·Summary of Argument of the Husband filed 14 May 2015;

   ·Affidavit of the husband filed 1 May 2015;

   ·Supplementary affidavit of the husband filed 5 May 2015;

   ·Further Supplementary affidavit of the husband filed 14 May 2015;

   ·Affidavit of Dr Z filed 5 May 2015;

   ·Affidavit of Dr AA filed 5 May 2015;

   ·Affidavit of Mr BB filed 5 May 2015;

   ·Affidavit of Ms CC filed 5 May 2015;

   ·Affidavit of Ms DD filed 5 May 2015;

   ·Affidavit of Ms EE filed 23 June 2014;

   ·Affidavit of Mr FF filed 25 June 2014; and

   ·Financial Statement of the husband filed 5 May 2015.

The Wife’s Position

1. The orders sought by the wife are outlined in Exhibit A8, which was tendered by counsel for the wife on the second day of hearing. The orders sought in Exhibit A8, insofar as they relate to the issues to be determined, are as follows:-

   1.   That the Wife have sole conduct of the sale of the 3 properties (being the 2 investment properties in Western Australian and the former matrimonial home).

   2.   That the proceeds of sale from the Western Australia properties (which after deduction of the costs and commissions of the sale are estimated to be in the region of $80,000) be disbursed:-

   a.   To pay monies due to [Mr Y] in the sum of $6,000; and

   b.   Balance to the Wife’s solicitor on account of the Wife’s costs in these proceedings.

   That the proceeds of sale from [B Street], the former matrimonial home, be disbursed as follows:

   a.   First to pay the costs and commission of the sale;

   b.   Second to discharge the mortgages to Bendigo and Adelaide Bank;

   c.   Third to be disbursed to the Wife’s solicitors in such amount as is required to meet the lower of the 2 following figures;

   i.Monies paid to the Husband’s solicitors since the date of separation;

   ii.Monies owed to the Wife’s solicitors as at the last day of hearing (such sum to vouched at court on Monday 18 May 2015);

   d.   Fourth to disburse to the Wife such sum as is required to ensure a payment to her of all child support payable by the husband if his child support income amount were $245,000 from 8 July 2013 to 30 June 2015;

   e.   Fifth to be  divided between the parties in the proportions of 80% to the Wife and 20% to the Husband and from the Husband’s 20% be applied:

   i.The sum required to pay outstanding school fees in the sum of $36,782.95;

   ii.To the Wife 80% of the mortgage payments not made in breach of Court orders;

   iii.The balance to make a lump sum payment spousal maintenance payment of up to $78,000; and

   iv.The balance if any to the Husband;

   3.   That the Wife retain the following:

   a.   Motor vehicle 1 registration number …; and

   b.   Motor vehicle 2 registration number ...

   c.   That the Wife retain the contents of the former matrimonial home;

   4.   That the parties otherwise retain the assets and resources in their respective possessions as at the date of these orders, and indemnify the other in relation to any liability attaching to the same, the husband to indemnify the wife in relation to all taxation matters arising from her involvement in the Rankin Family Trust or any other entity controlled by him;

   5.   That paragraphs 7 to 11 (inclusive) of these Orders are binding on the Trustee of MLC Wrap Super (“the Fund”).

   6.   That the base amount of E$250,000 be allocated to the Wife out of the interest of the Husband’s interest in the Fund.

   7. That pursuant to s 90MT(1)(a) of the Family Law Act 1975 (“the Act”) whenever a splittable payment becomes payable in respect of the Husband’s interest in the Fund, the Wife shall be entitled to be paid an amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount 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.

   8.   That Order 8 has effect from the operative time.

   9.   The operative time for the purposes of Order 8 of these Orders is four (4) business days after the date of service of these Orders upon the Trustee of the Fund.

   10. That until such time as the Superannuation split to the wife pursuant to   these Orders can be rolled over onto a separate account to 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 the Fund.

   b.   The Husband direct and authorise the Trustee of the Fund to communicate with the Wife and/or any person authorised by her in writing:-

   i.To answer any reasonable inquiries as may be made by her or on her behalf from time to time in relation to her entitlement in the Fund, and

   ii.To provide to the wife and/or her authorised representative with a copy of any notice of any application or request by the Husband which seeks release of entitlements in the Fund in so far as that release may effect [sic] the Wife’s entitlement in the Fund 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 the Fund to which she is entitled pursuant to these Orders.

   11. In the event that the Superannuation split to the Wife pursuant to these Orders can be rolled over into a separate account to the Wife each of the parties do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.

   12. That the husband pay the wife $500 per week by way of spousal maintenance after the expiry of the period covered by payment in para 3(e)(c) above, for a period of 3 years from the date of these orders. 

   13. That in the special circumstances within section 116(1)(b) of the Child Support (Assessment) Act this Court her and determine the Wife’s application for a departure order below.

   14. That in the special circumstances of the case pursuant to section 117 of the Child Support (Assessment) Act the Husband pay to the Wife the sum of $333 per week per child.

   15. That pursuant to section 124 of the Child Support (Assessment) Act, the Husband pay all tuition fees, extracurricular expenses, uniforms and equipment consequential to the schools currently attended by the 3 children.

2. On the third day of hearing, counsel for the wife tendered a further document (Exhibit A10) in which the following orders are sought:-

   That the husband do all acts reasonably required of him by the wife and/or the [religious court] to give the wife a [divorce document] as soon as is reasonably practicable, such acts to include without being limited to:

   (a)Completion of any necessary document;

   (b)Attendance at any hearing convened by the [religious court] at any rabbinical office authorised by the [religious court].

The Husband’s Position

1. The husband in his Summary of Argument sought orders in relation to property in the following terms:-

   8.   That the net proceeds of the sales of the three properties (being the former matrimonial home, the [H Town] property, and the [G Town] property) be divided equally between the parties.

   9.   That the base amount of $225,000 be allocated to the Wife out of the interest of the Husband’s interest in the MLC Superannuation Fund (“the Super Fund”).

   10.   That the Wife retain the Motor vehicle 2 (…) and the Motor vehicle 1 (…).

   11.   That any other assets be divided equally between the parties.

2. By the second day of the hearing the husband’s position had shifted such that it was indicated through his counsel that the husband sought a division of the parties’ interests on the basis that the wife receive 65 per cent and the husband receive 35 per cent of the matrimonial assets and that the parties’ superannuation interests be split equally between them.

The Hearing

1. The matter was heard over three days.  Each of the parties was represented by counsel.  The only witnesses required for cross-examination were the husband and the wife.

2. Pursuant to paragraph 2 of the orders made by me on 20 March 2015, the final hearing proceeded on the basis that the wife be treated as the applicant.  That decision, as previously referred to, was made due to the failure of the husband to file documents in accordance with my trial directions or to appear at that mention hearing.

3. On the first day of hearing, the husband’s former solicitors sought to intervene and be joined to the proceedings as a creditor of the husband in order to recover unpaid legal fees from the husband.  At the request of the parties, the matter was stood down for some three hours to enable discussion in relation to those issues; ultimately, the dispute between the husband and the intervener was resolved on the basis of a Minute of Consent Order signed by the parties.  I made orders in the terms of that Minute on 14 May 2015.  The intervener was excused from further attendance and the proceedings continued as between the husband, the wife and the ICL.

4. In relation to the parenting proceedings, it was the wife’s case that she be permitted to relocate to Country P with the three children of the marriage.  The husband opposed the relocation, as did the ICL.

5. On the third day of the trial, counsel for the wife informed the Court that the wife sought to withdraw her application to relocate. Shortly thereafter, I made orders by consent which provide that:-

   ·the children live with the wife;

   ·the wife have sole parental responsibility for the children save for any issues relating to a change of name of the children which is equally shared between the parents;

   ·the husband spend time with the children supervised at GG Contact Centre or such other location and/or service as may be agreed between the parties on days and times as nominated by the centre or agreed supervisor subject to the wishes of the child D so far as it relates to her time with the husband; 

   ·the father be permitted to send gifts, cards and letters to the children;

   ·the mother ensure that the children attend upon a counsellor referred to by the Supporting Children after Separation Program; and

   ·the ICL be discharged.

6. During closing submissions on 18 May 2015, counsel for the wife sought that I make orders that day that the wife have the sole conduct of the sales of the parties’ two investment properties held in Western Australia and the former matrimonial home in Suburb C and that she retain the net proceeds of the sales.

7. Upon hearing submissions and having regard to the evidence given during the course of the hearing, I made the following orders at the conclusion of the third day of the hearing:-

   (1)That the wife have sole conduct of the sales of the properties at:

   (a)[B Street, Suburb C], Victoria;

   (b)[L Street, G Town], Western Australia;

   (c)[K Street, H Town], Western Australia;

   and be at liberty to make her own decisions relating to reserve and mode of sale, providing the husband with information as to each stage of the process and any offer made to purchase.

   (2)That the net proceeds of sale be held by the solicitor for the wife in an interest bearing trust account in the joint names of the parties to be disbursed only pursuant to written agreement or in accordance with an order of this Honourable Court, and the wife’s solicitor to provide the husband’s solicitor with accounts on a monthly basis.

8. It was common ground that the properties should be sold.  Indeed, orders had been made in October 2014 for the sale of the Western Australian properties.  The issue for determination was which of the parties should be responsible for the conduct of the sales. 

9. The husband was cross-examined during the trial as to the steps taken by him to implement the orders made in October 2014 regarding the sale of the Western Australian properties.  The husband’s evidence was that he did not appoint a selling agent until late February 2015.  Further, the husband had ceased making payments on the mortgage secured over the title of the property at Suburb C.  As a result, the mortgagee had commenced proceedings in the Supreme Court of Victoria seeking amongst other things, a sale of that property.  Having regard to the husband’s failure to comply with previous orders in relation to the sale of properties, I was satisfied that it was appropriate that the wife have control of the conduct of the sales and made orders in those terms.

10. On 18 December 2015 my Associate informed the parties’ lawyers of my intention to make final orders and publish my reasons for judgment on 22 December 2015.  In response to that notification, the lawyers for the parties sought an urgent mention hearing.  The matter was listed for mention on 22 December 2015. 

11. I was informed by counsel appearing for the parties at that mention hearing that the properties at Suburb C, L Street and K Street had been sold and that the net proceeds of sale from the three properties was $802,546.29.  I was also informed that that amount is held on behalf of the parties in the trust account of the wife’s lawyers.

12. That information was significant given that at trial, in opening it was put on behalf of the wife that the sale proceeds would be between $200,000 and $400,000.  At that time the husband held a more optimistic view as to the likely sale price of Suburb C, such that it was indicated by counsel for the husband the pool of assets could be up to $1 million.

13. Counsel appearing for the husband raised a further issue at that mention hearing.  I was informed that the husband sought to re-open the case to adduce further evidence in relation to a capital gains tax liability that has arisen as a result of the sale of Suburb C; that issue was not raised on behalf of the husband during the trial.  I indicated to the husband’s counsel that I would not entertain an oral application in relation to that issue.  I made procedural orders requiring the husband to file and serve any application and affidavit upon which he seeks to rely with respect to re-opening the case, such material to be filed and served by 4.00 pm on 18 January 2016.  The wife was to file any response to such application by 3 February 2016.

14. Notwithstanding the indications of counsel appearing for the husband at that mention hearing as to the proposed application to re-open the proceedings, no application has been filed on behalf of the husband pursuant to my orders of 22 December 2015.

15. In determining the matter I have read all documents upon which the parties have relied and the exhibits that were tendered during the hearing.  I have also had the benefit of observing the parties when giving their evidence in Court.

16. I have applied the standard of proof as provided in s 140(1) of the Evidence Act 1995 (Cth); that standard is the balance of probabilities.

Legal Principles

1. The parties’ competing property applications are to be determined in accordance with the provisions of Part VIII of the Act. The High Court considered the approach to be adopted in the determination of proceedings pursuant to s 79 of the Act in the decision of Stanford v Stanford (2012) 247 CLR 108. At page 120 the plurality of the High Court held :-

   …s 79(2) provides that “[t]he 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”. Section 79(4) prescribes the matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.

2. That decision has been considered in detail by the Full Court in Bevan & Bevan [2013] FamCAFC 116 (“Bevan”) and more recently in Chapman & Chapman [2014] FamCAFC 91.

3. In Bevan at [73] the Full Court referred to the three “fundamental propositions” laid down by the High Court which should guide trial judges in approaching the task under s 79. They were summarised as follows:-

   1.Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);

   2.The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;

   3.A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.

   (original emphasis)

1. Accordingly, in determining competing applications pursuant to s 79, the Court is required to:-

   ·Identify the parties’ respective legal and equitable interests in property;

   ·Determine whether, in accordance with s 79(2), it is just and equitable to make a property settlement order having regard to the parties’ existing interests;

   ·Determine all relevant contributions of each of the parties;

   ·Identify and weigh against each other the matters set out in s 79(4)(a) to (c) inclusive; and

   ·Consider the matters contained in s 79(4)(d) to (g) inclusive and make a determination as to what, if any, alteration should be made to the entitlements of the parties earlier assessed on account of their contributions, particularly having regard to the provisions of s 75(2).

2. The Act does not prescribe the order in which the matters in s 79(4) are to be considered. The circumstances of individual marriages as to their nature and form differ; how parties have organised and lived within the marriage are factors which may be relevant in the exercise of the discretion pursuant to s 79(2) of the Act. The Court’s approach may be less compartmentalised than was previously the case and a more “holistic” approach, as described by Murphy J in Watson & Ling [2013] FamCA 57, adopted.

3. It was conceded by the parties at the commencement of the case that orders were necessary and each asked the Court to make orders adjusting their interests in property; neither party challenged the proposition that it was just and equitable to make orders for property settlement.  In circumstances where the parties agree that they will no longer have the joint use and enjoyment of their interests, I am satisfied that it is just and equitable to make orders for the adjustment of those interests.  

The Evidence

1. In the husband’s summary of argument filed 14 May 2015 the husband identified parts of the wife’s evidence to which he objected.  Counsel for the wife also provided a list of objections to evidence in the Addendum to the wife’s case outline tendered on 14 May 2015 (Exhibit A2).  I have read the list of objections made on behalf of each of the parties and agree that there are parts of the affidavits relied upon by each to which objection should be upheld.  Sensibly however, the parties’ counsel did not seek to argue that those parts of the affidavit should be struck out and the trial proceeded on the basis that I would not give evidence properly objected to any weight.  I have adopted that positon when considering the parties’ evidence.

2. Upon the resolution of the parenting issues, the range of matters in dispute narrowed significantly.  As a result, the only witnesses required for cross-examination were the husband and the wife.

3. The wife gave evidence over the course of a day.  At the time she gave her evidence, parenting issues were live and much of the cross-examination of her focussed on those issues.  Throughout her evidence she was a calm and responsive witness.  The wife was prepared to make concessions where appropriate and ultimately determined not to pursue her application to relocate to Country P with the children having had the opportunity to consider her position over the weekend that intervened after the second day of hearing. 

4. In contrast, my impression of the husband was that he was an evasive and unreliable witness.  For example, orders were made for the sale of the investment properties in Western Australia on 31 October 2014.  Paragraph 1 of those orders provided as follows:-

   That forthwith the husband and the wife do all such acts and things as may be required to sell the properties situate at and known as [L Street] and [H Town]…

5. The husband was cross-examined as to his compliance with that order.  When asked when he first took action to implement the sales pursuant to the orders the husband’s evidence was that he could not recall when he first gave instructions to agents to sell the properties.  Further, the husband’s evidence was that he did not understand what it meant for the properties to be sold “forthwith”.  Later in his evidence it was conceded that in fact the exclusive listing authority for the sale of the property at L Street executed by him was not signed until 26 February 2015, almost four months after the order had been made.  The husband’s explanation for his failure to comply with that order was that he was pre-occupied with the then pending Magistrates' Court proceedings and that he felt “depressed and oppressed”.  The husband’s evidence regarding his compliance with the orders made in October 2014 was unconvincing. 

6. Prior to the commencement of the hearing the husband had not produced documents relating to the sale of the Western Australian properties.  Accordingly, counsel for the wife called for documents regarding the provision of instructions by the husband to the selling agent for the sale of those properties. 

7. In answer to that call, the husband produced the exclusive listing authority for L Street; it disclosed a payment by the husband to the selling agents on his Diners’ Club card.  In his Financial Statement filed 1 May 2015 the only credit card disclosed by the husband is a Commonwealth Bank Mastercard. 

8. During cross-examination by counsel for the wife the husband conceded that he had not disclosed his Amex card or his Diners’ Club card.  The husband’s evidence was that he had closed his Diners’ Club card one-and-a-half years ago and that it was not a card currently in use.  Given that he had used that card to pay monies into the selling agent’s trust account in February 2015, some three months earlier, I do not accept that evidence. 

9. These are but two examples of the husband’s preparedness to mislead the Court or withhold information in order to advance his own case.  Accordingly, where there is a conflict between the evidence of the husband and the wife, I prefer the evidence of the wife.

The Parties’ Legal and Equitable Interests

1. At the commencement of the hearing each of the parties provided a list of what they asserted were their assets and liabilities. 

2. The wife relied upon a balance sheet tendered on the second day of the hearing (Exhibit A8).  That document helpfully summarised the positions of each of the parties with respect to their assets and liabilities.  Exhibit A8 provides as follows:-

Asset	Husband’s Value	Wife’s Value
Former matrimonial home	$1,500,000	$1,800,000
Home mortgage	-$1,517,586	-$1,517,586
Breach of court orders rectification	-$    50,000
G Town property	$   500,000	$   505,000
Mortgage H Town property	-$  400,000	-$   400,000
H Town	$  470,000	$   590,000
G Town mortgage	-$  473,360	-$   473,360
Motor vehicle 1	$      5,000	E$      3,000
Motor vehicle 2	$    20,000	E$    15,000
Motor vehicle 3	$    32,000
Joint bank account
Adelaide offset account
CBA business account
Wife’s CBA savings account	$       1,065
Rankin Pty Ltd
Husband’s superannuation fund	$ 750,000	$ 750,000
Wife’s superannuation fund	$ 250,000	$ 250,000
Home equipment	$      500	NK
Furniture/chattels	$ 200,000	$   10,000
Liabilities
Construction debt	-$   77,000	$0
Children’s private school fees	-$   30,000	-$   36,872.96
Child support ‘debt’	E-$  37,000
Personal loans from friends	-$   15,570	$0
Credit card debt	-$     5,600	$0
Tax debt	-$   40,000	$0
Land tax	-$   20,000	$0
Child support debt for Ms R	-$     2,000	$0
Health insurance
Medical insurance
Car insurance
Belleli King	-$   53,000
L Y Tonge & Co	-$ 100,000
Wife’s legal fees	E-$150,000

Real Estate

1. Although the balance sheet notes differences between the parties as to the value of their three parcels of real estate, given that those properties have now been sold and the net proceeds of sale quantified, I need not consider the parties’ respective positons in relation to those interests.  The amount held upon trust for the parties in the trust account of the wife’s solicitor, being the net proceeds of sale of the three properties (Exhibit W1) as at December 2015 is $802,546.41.  I will include that amount in the parties’ balance sheet.

Wife’s Claim for Rectification Due to Husband’s Breach of Orders

1. The next issue to emerge from Exhibit A8 is the adjustment sought by the wife to take into account the husband’s non-compliance with orders requiring him to meet mortgage payments with respect to the Suburb C property. 

2. Pursuant to the orders made in the Federal Circuit Court on 4 November 2013 the husband was required to meet the current mortgage payments and outgoings with respect to the property at Suburb C as well as the two investment properties in Western Australia.  That obligation was confirmed pursuant to the orders made 31 October 2014.

3. The wife tendered a letter from Bank of Queensland dated 31 March 2015 to the husband (Exhibit A12) which states that the amount overdue on the home loan account as at that date was $56,463.64.  It was common ground between the parties that the husband did not make payments as required under the mortgage to the Bank of Queensland.    

4. As the Suburb C property has been sold, that debt has been discharged.  The issue that remains is how the additional liability repaid should be treated and whether there should be an adjustment in favour of the wife to take into account the failure of the husband to meet his obligations pursuant to orders of this Court, the effect of which is to reduce the value of the pool of assets otherwise available for division between the parties. 

5. In my view, the liability which has now been paid is not an amount to be included in the parties’ balance sheet. Rather, it was a debt incurred as a result of the failure of the husband to comply with Court orders. That debt has been discharged upon settlement of the sale of Suburb C. The responsibility for payment of that debt was the husband’s. Had he complied with the Court orders the pool of assets otherwise available for division would be greater; having regard to that circumstance I am satisfied that it is an amount to be taken into account in an assessment of the adjustment in favour of the wife pursuant to s 75(2)(o) of the Act.

Motor Vehicles

1. The wife’s balance sheet discloses differences between the parties as to the value of their motor vehicles.  However, neither party sought to adduce evidence as to value of the three motor vehicles the subject of dispute.  Further, each party sought orders to the effect that the wife retain the Motor vehicle 1 and Motor vehicle 2 registered in her name and that the husband retain the Motor vehicle 3.  Given the common position between the parties with respect to the motor vehicles, I need not make any findings as to their value.  I will make orders as sought by the parties dealing with those vehicles.

The Husband’s Savings Accounts

1. In his Financial Statement filed 1 May 2015 the husband discloses only one savings account, being a Commonwealth Bank account which he deposes has a nil balance.  The wife challenged that evidence and the husband was cross-examined as to the existence of other accounts held by him.  During the course of his evidence the husband conceded that he had failed to disclose in his Financial Statement his Diners’ Club account and his Amex account. 

2. When questioned as to the account from which he paid his legal fees to his former solicitors, which he confirmed totalled approximately $167,000, the husband could not recall the account from which those fees were paid.  Further, the husband could not recall whether in fact he had disclosed the existence of such accounts to the wife.  That evidence was implausible, particularly having regard to the husband’s level of education and professional qualifications.

3. The cross-examination of the husband confirmed that he had not disclosed accounts held with Adelaide Bank in the joint names of the parties and a Commonwealth bank account in the name of Rankin Pty Ltd, the service company controlled by him. 

4. The husband’s explanation for his failure to disclose statements with respect to the Adelaide Bank account was that he was not required to do so as the wife has full access to that account.  That evidence was suggestive of an attitude of the husband “thumbing his nose” at the Court and his obligation to make disclosure as required by the Rules of Court.

5. I am satisfied that the husband has not produced bank statements as required in order to fulfil his obligation to make full and frank disclosure.  The cross-examination of the husband revealed that he has not disclosed accounts held by him with Diners’ Club, Amex and Adelaide Bank as well as a Commonwealth Bank account in in the name of his service company.  There is no evidence before me as to the current balances of those accounts. 

6. Accordingly, these are matters which I will take into account when determining an appropriate adjustment of the parties’ interests pursuant to s 79(4) and s 75(2)(o) of the Act.

Chattels

1. The parties’ balance sheets disclose that there is a dispute as to the value of their chattels.  Again, there is no evidence before me as to the value of the parties’ chattels.  Whilst the husband asserts that the chattels in the wife’s possession are valued at $200,000, he has not sought to adduce any evidence as to the value of the chattels, nor has he sought the return of any chattels in the wife’s possession.  In the circumstances, I am not in a position to make any findings as to the value of the chattels.

Construction Debt

1. The next disputed item in the balance sheet is the husband’s assertion that there is a construction debt for works at the Suburb C property in the sum of $77,000.  The wife challenges that assertion on the basis that the husband has produced no evidence to support his contention. 

2. The wife concedes that the parties did undertake some renovation to the Suburb C property.  However, she challenges the assertions made by the husband as to the cost of those renovations (which are incomplete) and notes that the husband has failed to provide any documentation to corroborate the amounts alleged to have been expended on the renovations.  The husband did not respond to that evidence either in his trial affidavit or in his evidence-in-chief before me. 

3. During cross-examination, the husband stated that the costs of the renovation had been paid from his earnings and an off-set account with the Adelaide Bank.  Given that evidence, I am satisfied that there is no basis for including a liability in relation to the debts related to the renovation of Suburb C.

Unpaid School Fees

1. The next contentious issue disclosed in the parties’ respective balance sheets is the balance of the debt owing to the children’s school in respect of private school fees.  The husband asserts that debt to be $30,000, whilst the wife asserts that the debt is $36,872.96. 

2. During the course of the wife’s evidence-in-chief, a statement of the outstanding fees payable to M Inc. and N Inc. as at 14 April 2015 was tendered (Exhibit A7).  That statement discloses that the amounts payable with respect to school fees totals $36,872.96.  I am satisfied that that is the amount owing in respect of unpaid school fees.

3. During closing submissions counsel for the husband conceded on behalf of his client that the unpaid school fees were the husband’s responsibility and should be paid by him.  Given that concession, the orders I make will provide that that liability is paid by the husband.   

Unpaid Child Support

1. The wife alleges that there are arrears of child support payable to her in the sum of $37,000. In support of that allegation a Certificate under s 116(2) of the Child Support (Registration and Collection) Act 1988 (Cth) was tendered on her behalf (Exhibit A11). That document discloses that as at 6 May 2014 the sum of $9,771.96 is due and payable by the husband to the wife by way of child support.

2. The husband concedes in his Financial Statement that he has a liability for unpaid child support of approximately $10,000.  Accordingly, I am satisfied that there is unpaid child support of $9,771.96.  I will make orders that provide that that child support liability be paid by the husband from his share of the property.

Husband’s Loans

1. The husband alleges that he has personal loans from friends totalling $15,570.  The friends to whom the debts are alleged to be owed are unnamed and the husband adduces no evidence which would support those allegations.  Accordingly, there is no evidence before me which would satisfy me as to the existence of those debts.  Further, there is no evidence before me that would support a finding that even if such debts were found to exist that there is a requirement that they be re-paid.

Husband’s Credit Card Liabilities

1. The husband also asserts that he has a credit card liability totalling $5,600.  The wife does not accept the existence of that debt.  The husband has not produced a bank statement or other evidence which would establish the existence of that debt.  Accordingly, there is no evidence before me which would satisfy me as to the existence of the debt or that if such debt exists that it is a debt which should be taken into account in determining the parties’ competing property applications. 

Alleged Taxation, Land Tax and Child Support Liabilities

1. The husband asserts that he has a taxation liability of $40,000.  At paragraph 48 of his Financial Statement filed 1 May 2015 the husband deposes that that amount is payable for income tax assessed and unpaid for the financial year ending 30 June 2014.  The husband alleges that the payment of that liability is due on 5 June 2015.  Those liabilities are disputed by the wife.

2. The husband adduces no evidence in relation to the alleged taxation liability.  In circumstances where the husband’s failure to make full and frank disclosure is a central issue in the case, the failure by him to adduce any evidence as to his assessed taxation liability for the relevant period is significant.  Again, in circumstances where there is no evidence before me as to the existence of that liability I am not satisfied that it is a liability which should be taken into account in these property proceedings.  Given that the alleged liability relates to a period after the parties’ separation and in circumstances where the husband has had the benefit of the income earned for that period to the exclusion of the wife, I am satisfied that even if the liability were proven, it is one which ought not be taken into account in the circumstances of this case.

3. The wife seeks an order that the husband indemnify her in relation to any and all taxation liabilities of the husband, the Rankin Family Trust or any other entity controlled by him.  I am satisfied that such an order is appropriate given the husband’s control of those assets and the income earned therefrom.

4. The husband also asserts that he has a debt for land tax in the sum of $20,000 and a child support debt for his adult child, Ms R, in the sum of $2,000.  The wife does not accept those alleged debts.  The husband produced no evidence to support the claimed liabilities.  Accordingly, I am not satisfied as to the existence of those debts.

Balance Sheet

1. Having regard to my findings with respect to the parties’ balance sheets, I am satisfied that the parties’ legal and equitable interests for the purposes of these proceedings are as follows:

Item	Description	Value
Proceeds of sale of Suburb C, H Town and L Street	$802,546.41
Wife’s CBA savings account	$   1,065
Total	$803,611.41
Liabilities
School Fees	$36,872.96
Child Support	$  9,771.96
Total	$46,644.92
Superannuation
Husband	$750,000
Wife	$250,000
Total	$1,000,000

I certify that the preceding one hundred and ninety-four (194) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 29 February 2016.

Associate: 

Date:  29 February 2016