Shah and Shah
[2018] FCCA 1103
•8 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHAH & SHAH | [2018] FCCA 1103 |
| Catchwords: FAMILY LAW – Property – undefended final hearing – husband incarcerated until 2037 – contributions – Kennon argument – section 75(2) and related factors. |
| Legislation: Family Law Act 1975, ss.78, 79, 80, 81 |
| Cases cited: AJO & GRO [2005] FamCA 195 |
| Applicant: | MS SHAH |
| Respondent: | MR SHAH |
| File Number: | SYC 2579 of 2015 |
| Judgment of: | Judge Monahan |
| Hearing date: | 30 April 2018 |
| Date of Last Submission: | 30 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Ong of Marsdens Law Group |
| No appearance for the Respondent |
ORDERS
THE COURT ORDERS THAT:
Controlled Monies
Within 7 days from the date of these Orders, the Applicant do all things and acts necessary to cause Marsdens Law Group to forthwith pay to her the balance of the monies held in trust for the Applicant and Respondent arising from the sale of the property located and situated at Property A, NSW and for the purposes of this Order the consent of the Respondent be dispensed with.
(overseas) properties
The Respondent be declared to have the sole right, title and interest in:
(a)The property situate at and known as (overseas) Property A; and
(b)The property situate at and known as (overseas) Property B.
Super Fund 1 Superannuation
That:
(a)in accordance with Section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable to the Respondent from his interest in the Super Fund 1 (Account Name: Mr Shah, Member Number:) (‘Super Fund 1’), the Applicant is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount equivalent to 100 per centum of the Respondent’s interest in Super Fund 1 and there is a corresponding reduction in the entitlement the Respondent would have had but for these Orders; and
(b)having been accorded procedural fairness in relation to the making of these Orders, these Orders bind the Trustee of the Super Fund 1.
These Orders have effect from the operative time and the operative time is 7 business days after the Trustee has been served with a certified copy of these Orders.
Super Fund 2 Superannuation
That:
(a)in accordance with Section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable to the Respondent from his interest in Super Fund 2 (Account Name: Mr Shah, Date of Birth: 1967) (‘Super Fund 2’), the Applicant is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount equivalent to 100 per centum of the Respondent’s interest in Super Fund 2 and there is a corresponding reduction in the entitlement the Respondent would have had but for these Orders; and
(b)having been accorded procedural fairness in relation to the making of these Orders, these Orders bind the Trustee of the Super Fund 2.
These Orders have effect from the operative time and the operative time is 7 business days after the Trustee has been served with a certified copy of these Orders.
Other Orders
Subject to these Orders, the Applicant and the Respondent each retain all interest in and entitlement to:
(a)All personal property now in his/her respective possession or control.
(b)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively.
(c)All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.
Both the Applicant and the Respondent hereby release the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.
The parties do all acts and things necessary and give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed.
In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the relevant 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.
AND THE COURT DIRECTS THAT:
The Applicant cause a sealed copy of today’s orders and the Reasons for Judgment to be served on the Respondent by way of substituted service on Suburb A Corrective Services.
AND THE COURT FURTHER ORDERS THAT:
All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
A.These Orders were made by the Court following a final hearing heard on an undefended basis on 30 April 2018.
B.The Applicant tendered two letters from the relevant superannuation trustees confirming that they have been afforded procedural fairness (see Exhibit “3”).
IT IS NOTED that publication of this judgment under the pseudonym Shah & Shah is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2579 of 2015
| MS SHAH |
Applicant
And
| MR SHAH |
Respondent
REASONS FOR JUDGMENT
Introduction
These family law property proceedings were commenced by MS SHAH (“the wife”) against MR SHAH (“the husband”).
The proceedings came before me for final hearing on 30 April 2018 (“the final hearing”).
At the final hearing, the wife was present and was represented by her solicitor Mr Ong. The husband did not attend nor cause any legal representation to attend.
Given the husband’s non-appearance at the final hearing, the Court granted the wife leave to proceed on an undefended basis for the reasons given that day. Further explanation is provided in these reasons to follow.
Unless otherwise stated, any statutory references in these reasons will be to the Family Law Act 1975 (“the Act”) or the Federal Circuit Court Rules 2001 (“the FCC Rules”).
Background
Relationship history
The wife was born on 1963 and is currently 54 years of age. The husband was born on 1967 and is currently 51 years of age.
The parties married on 1998. Their son, [X], was born on 2001 and is currently 17 years of age. Their daughter, [Y], was born on 2003 and is now 14.
[X] has been diagnosed with Autism Spectrum Disorder and ostiopsychoma, a form of bone cancer, for which he is currently in remission. [X] requires ongoing care in hospital and future surgery regarding a 4 inch left leg discrepancy. [Y] appears to have been deeply affected by the domestic violence perpetrated by the husband. [Y] has engaged in self-harming since 2016 and takes anti-depression medication daily and requires ongoing therapy.
The husband also has a child from a previous relationship, Ms A, born 1991 and currently aged 26, whom the wife has adopted.
In or about 2005 or 2006, the husband purchased a property in (country omitted), (“Crown Lease”) with his credit card. On 2011, the parties purchased the former matrimonial home; a property located and situated at Property A, NSW (“the Property A property”).
The parties separated on a final basis on 1 February 2015.
On 2015, the husband was arrested and refused bail on 24 counts allegedly relating to sexual assault and grievous bodily harm perpetrated against the wife.
On 2017, the husband pleaded not guilty to all 24 counts. On 2017, he was found guilty on 23 counts and on 2017, was sentenced to minimum term of 15 years and 4 months and an additional term of 6 years and 8 months. The husband remains incarcerated and he is not eligible for parole until 2037.
Procedural history
The wife filed her Initiating Application on 24 April 2015.
The matter first came before me in my duty list on 21 May 2015 following which the matter was adjourned to 4 June 2015. The husband was legally represented at that hearing.
On 4 June 2015, orders were made for the sale of the former matrimonial home, being the Property A property, and for the net proceeds of sale to be held in trust for the parties until further order. The husband did not cause a legal representative to appear on this date.
The matter then returned to Court on 27 November 2015, and the matter was set down for an undefended hearing to occur on 18 April 2016. Orders were also made for the sum of $20,000 to be released from the net proceeds of sale to the wife to assist with legal costs. The husband did not cause a legal representative to appear on this date.
The husband filed his Response on 11 April 2016.
The husband caused legal representation to appear on 18 April 2016 and therefore the undefended final hearing did not proceed. The matter was adjourned to 14 September 2016 and orders were made referring the parties to a Conciliation Conference. The wife, her legal representative and a legal representative for the husband duly attended that Conference on 8 August 2016, however the Conference was unable to proceed.
The husband filed an Application in a Case on 21 April 2016, which had a first return date before the Court on 14 September 2016. The husband was legally represented in Court on that date. The proceedings were adjourned to 23 March 2017, on which occasion, as there was no appearance for the husband, the matter was further adjourned and the Application in a Case filed by the husband dismissed for want of prosecution.
On 2 November 2017, there was no appearance on behalf of the husband and the matter was set down for an undefended final hearing on 26 February 2018. However the hearing was again adjourned and the following Notations, inter alia, were made in the orders of that date:
C. The Applicant advised the Court that following service of their trial material upon the Respondent, the Applicant received on 21 February 2018 a letter from the Respondent bearing the date of 8 February 2018, in which the Respondent made several representations which the Applicant has brought to the Court’s attention, including an adjournment request.
D. Having considered the issues today the Court reluctantly granted the Respondent’s adjournment request on the basis that a costs order should be made, and on the basis that the Court has capacity to relist this matter within a reasonable timeframe.
E. The Respondent has been held in custody since 2015 and on 8 December 2017 was sentenced to a term of imprisonment being a minimum term of 15 years and 4 months, and an additional term of 6 years and 8 months. Those sentences relate to a conviction on charges of sexual assault, assault, and grievous bodily harm perpetrated upon the Applicant.
F. It is unlikely that the Court will grant any further adjournment request sought on the basis of the Respondent being unrepresented or incarcerated.
G. The Respondent bears the onus of seeking to appear by telephone at the Final Hearing. In the event that the Respondent seeks to appear by telephone, he is required to file a Telephone Request in sufficient time for appropriate arrangements to be made with Corrective Services.
No telephone request was subsequently filed by the husband or otherwise received by my Chambers.
On 26 April 2018 an email was received by my Chambers purportedly by Ms J, the husband’s sister (and tendered by the wife as Exhibit “1”). It appears to be making a claim for reimbursement of funds in respect of the (overseas) properties. It was not an application to intervene in the proceedings and nor did Ms J appear in Court on the date of the final hearing.
As stated, the final hearing proceeded on an undefended basis on 30 April 2018 following which the Court reserved its decision.
Legislative requirements
Property proceedings between parties to a marriage are governed by the provisions of Part VIII of the Act, and more specifically, section 79.
Section 79
Section 79(1) of the Act states that the Court may make such orders as it considers appropriate altering the interests of the parties in the property.
Section 79(2) of the Act provides that:
The Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
If the Court is satisfied that it is just and equitable to make an order altering the interests of the parties in the property, section 79(4) of the Act sets out those matters which the Court must take into account when considering what orders should be made. Section 79(4) provides:
In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Section 79(4)(e) requires the Court to have regard to the following matters set out in section 75(2) of the Act:
The matters to be so taken into account are:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
These legislative requirements will be further considered in light of the available evidence in these reasons yet to follow.
Approach to exercise of discretion
The approach to the exercise of the Court’s discretion has been outlined in numerous judicial decisions. The High Court in the decision of Stanford v Stanford [2012] HCA 52 (“Stanford”) held that before making any orders adjusting the parties’ interests in the property pursuant to section 79 of the Act, the Court must, as required by section 79(2) of the Act, determine that is “just and equitable” for the Court to do so. At paragraph 42 the High Court stated that in most cases:
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).
Prior to the decision in Stanford, the preferred approach in determining property matters was that set out by the Full Court of the Family Court of Australia (“Full Court”) in the matter of Hickey v Hickey [2003] FamCA 395; (2003) 30 Fam LR 355; (2003) FLC 93-143 (“Hickey”). At paragraph 39 Nicholson CJ, Ellis and O’Ryan JJ stated:
The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s 79. That approach involves four inter-related steps. Firstly, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the court should identify and assess the contributions of the parties within the meaning of ss 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the court should identify and assess the relevant matters referred to in s 79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case…
This approach was reconsidered by the Full Court in Bevan v Bevan [2013] FamCAFC 116; (2013) FLC 93-545 (“Bevan”) in light of the High Court’s comments in Stanford. At paragraph 71, Bryant CJ and Thackray J stated:
Stanford will also serve as a reminder that the four step process “merely illuminates the path to the ultimate result”. Any future restatement of that process should incorporate acceptance of the fact that the power to make any order adjusting property interests is conditioned upon the court finding that it is just and equitable to make an order.
In Bevan & Bevan (No.2) [2014] FamCAFC 19; (2014) FLC 93-572 (“Bevan No.2”) the Full Court, having upheld the appeal against the decision at first instance, proceeded to re-determine the property application before the Court. At paragraphs 18 to 19, Bryant CJ and Thackray J stated:
18. Senior counsel for the husband structured his submissions by reference to the “four-step” approach to property settlement applications discussed in our earlier reasons. By way of explanation for doing so, senior counsel said:
16. The adoption of the above [four-step] approach is not intended to presuppose a positive answer to the question posed [by] section 79(2), nor to suggest that it is an approach appropriate in all proceedings. Rather, and provided that the fundamental propositions outlined by the High Court in Stanford (2012) … are not obscured, such approach is intended to and does no more than provide a principled, disciplined and structured means by which all of the matters arising for consideration pursuant to section 79 can be conveniently and properly identified and assessed.
17. Further, and whilst not said critically nor in a matter which seeks to cavil with the decision in this appeal, no other approach to the determination emerges readily from either Stanford nor the decision in this appeal. It is respectfully submitted that provided that the ‘fundamental propositions’ articulated in Stanford are not obscured, and whilst not universally so as has always been recognised, the approach set out above continues to provide a proper, transparent, certain and structured approach to the presentation and determination of applications pursuant to section 79.
19. We have no issue with what senior counsel has said about the utility of the four-step process, which we accept provides a convenient way to structure both submissions and judgments, provided the caveat mentioned is not overlooked.
The “caveat” referred to by the Full Court is the requirement that the Court must first be satisfied that it is just and equitable to make an order adjusting property between the parties.
In the subsequent decision in Rockman & Rockman [2014] FCCA 1966 (“Rockman”), Judge Bender noted at paragraph 83 that the “High Court in Stanford neither disapproved or approved the four steps process”. I agree with her Honour’s observation. That said, the High Court did lay down what they described as three “fundamental propositions” which would provide useful guidance to trial judges when undertaking the task under section 79 of the Act. I note that in Bevan, Bryant CJ and Thackray J summarised those fundamental principles at paragraph 73 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 of s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.
I also agree with the view expressed in Rockman that subsequent Full Court and single judge considerations of Stanford suggest that the path that may best “illuminate the path to the ultimate result” could now best be described as the following “five step process”:
(a) firstly, what is the parties’ legal and equitable interests in property;
(b) secondly, is it just and equitable to make an order adjusting the parties legal and equitable interests in that property;
If the answer to (b) is in the affirmative:
(c) thirdly, identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) of the Act and determine the contribution-based entitlements of each party as a percentage of the net value of the property of the parties;
(d) fourthly, identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g) and s.75(2) of the Act and determine the adjustment, if any, that should be made to the contribution-based entitlements of each party as a percentage of the property of the parties; and
(e) fifthly, given s.79(1) empowers the court to make such orders affecting the parties’ interest in the property as are appropriate, determine what order, if any, altering the parties’ interests are “appropriate” to enable the parties’ entitlements as determined pursuant to steps (c) and (d) to be achieved.[1]
[1] Rockman & Rockman [2014] FCCA 1966 at [84].
The Court will adopt this process for this decision.
Section 80
In addition to the specific powers provided by section 79(1) to adjust property interests, section 80(1) provides the Court with the following general powers:
The court, in exercising its powers under this Part, may do any or all of the following:
(a) order payment of a lump sum, whether in one amount or by instalments;
(b) order payment of a weekly, monthly, yearly or other periodic sum;
(ba) order that a specified transfer or settlement of property be made by way of maintenance for a party to a marriage;
(c) order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs;
(d) order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;
(e) appoint or remove trustees;
(f) order that payments be made direct to a party to the marriage, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the marriage;
(h) make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;
(i) impose terms and conditions;
(j) make an order by consent;
(k) make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice; and
(l) subject to this Act and the applicable Rules of Court, make an order under this Part at any time before or after the making of a decree under another Part.
Section 81
For completeness, I note that the Court must also consider section 81 of the Act which states:
In proceedings under [Pt VIII], other than proceedings under section 78 or proceedings with respect to maintenance payable during the subsistence of a marriage the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.
While section 81 of the Act is clearly relevant to the making of a property order, it is neither a ‘head of power’ nor an absolute requirement. This was the view of the Full Court in In the Marriage of Crapp and Crapp (No.2) (1979) 5 Fam LR 47; (1979) FLC 90-615:
Firstly s 81 is in the nature of an exhortation by the legislature to the courts and is not a separate source of power and secondly the section itself states that the policy of making orders which finally determine the financial relationship between the parties and avoid further proceedings is only to be taken ‘as far as (is) practicable’. Nevertheless it is true to say that it is unsatisfactory in the general context of the philosophy of the Family Law Act for a really significant issue between parties who are divorced and have gone their separate ways to remain in suspended animation for a number of years.[2]
[2] (1979) 5 Fam LR 47 at 61 (per Fogarty J; Pawley and Dovey JJ agreeing).
The practical effect of section 81 of the Act is that the Court must endeavour to make an order that finalises the financial relationship between the relevant spouses, but it does not require the Court to make an order that achieves finality. That said, for the comments previously made, and as far as it can be achieved, I see clear benefit in orders being made that will finalise the financial relationship between the parties to this case.
The Court will now consider the proposals for property settlement in light of the statutory considerations and available evidence.
Proposals
Wife
In summary the wife seeks to retain the net proceeds of the sale of the Property A property, for the husband to retain his interests in the (overseas) properties, and for the wife to receive the husband’s superannuation entitlements.
The precise orders sought by the wife were as follows:
1. These Orders are made by way of alteration of property interests pursuant to Section 79 of the Family Law Act 1975.
2. That within 28 days from the date of these Orders, the parties do all things and acts necessary to cause Marsdens Law Group, to forthwith pay to the Applicant the balance of the monies held in trust for the Applicant and Respondent arising from the sale of the property located and situated at Property A, NSW.
3. That pursuant to Section 78 of the Family Law Act 1975, the Applicant be declared to have the sole right, title and interest in all other real and personal property now in her possession, custody or control.
4. That pursuant to Section 78 of the Family Law Act 1975, the Respondent be declared to have the sole right, title and interest in:
4.1 The property situate at and known as (overseas) Property B;
4.2 The property situate at and known as (overseas) Property C; and,
4.3 All other real and personal property now in his possession, custody or control.
5. That as between the Applicant and Respondent, and subject to the above Orders, the Husband and Wife shall each respectively retain all interest in and entitlement to:
5.1 All personal property now in his/her respective possession or control.
5.2 All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively.
5.3 All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.
Super Fund 1 Superannuation
That:
6.1 in accordance with Section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable to Respondent from his interest in the Super Fund 1 (Account Name: Mr Shah, Member Number:) (‘Super Fund 1’), the Applicant is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using base amount equivalent to 100 per centum of the Respondent’s interest in Super Fund 1 and there is a corresponding reduction in the entitlement Applicant Husband would have had but for these Orders.
6.2 having been accorded procedural fairness in relation to the making of these Orders, these Orders bind the Trustee of the Super Fund 1.
7. these Orders have effect from the operative time and the operative time is 7 business days after the Trustee has been served with a certified copy of these Orders.
Super Fund 2 Superannuation
8. That:
8.1 in accordance with Section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable to Respondent from his interest in Super Fund 2 (Account Name: Mr Shah, Date of Birth: 1967) (‘Super Fund 2’), the Applicant is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using base amount equivalent to 100 per centum of the Respondent’s interest in Super Fund 2 and there is a corresponding reduction in the entitlement Applicant Husband would have had but for these Orders.
8.2 having been accorded procedural fairness in relation to the making of these Orders, these Orders bind the Trustee of the Super Fund 2.
9. these Orders have effect from the operative time and the operative time is 7 business days after the Trustee has been served with a certified copy of these Orders.
10. Both the Applicant and the Respondent hereby release the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.
11. That the parties shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed.
12. That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said 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.
Husband
In his Response filed 11 April 2016 the husband sought orders to the effect that each party receive or retain 50% of the net property pool.
The precise orders sought by the husband in his Response were as follows:
1. That pursuant to section 79 of the FamilyLawAct1975(Cth) the Applicant and Respondent each receive 50% of the net asset pool.
2. That:
a. In accordance with Section 90MT of the FamilyLawAct1975, whenever a splittable payment becomes payable to Mr Shah from his interest in his superannuation fund, Ms Shah is entitled to be paid an amount in accordance with Part 6 of the FamilyLaw(Superannuation)Regulations2001, using base amount of 25% of the fund and there is a corresponding reduction in the entitlement Mr Shah would have had but for these orders.
b. Having been accorded procedural fairness in relation to the making of these Orders, these Orders bind the Trustee of the Respondent's superannuation· fund.
c. These Orders have effect from the operative time and the operative time is 4 business days after the Trustee has been served with a copy of these Orders.
3. The Applicant be declared to be the owner of absolutely and to the exclusion of the Respondent:
a. All bank accounts in the Applicant's sole name and any investments however held.
b. All household contents (to the exclusion of the Respondent's personal belongings) currently in the Applicant's possession.
4. The Respondent be declared to be the owner of absolutely and to the exclusion of the Applicant:
a. The two properties located in (overseas) being the properties located at:
i. (overseas) Property A; and
ii. (overseas) Property B.
b. All bank accounts in the Respondent's sole name and any investments however held.
c. The Respondent's personal belongings.
5. That other than as provided in these Orders, as between the parties, the parties shall each be declared to be the legal and beneficial owner of all other property and all other financial entitlements (not hereinbefore provided for) in their respective names, possession or under their control or to which each party is presently, legally or beneficially entitled including moto vehicles, furniture and furnishings, monies in bank accounts, real estate, shares, superannuation entitlements, insurance policies, choses in action and credits or any entitlement to receipt of monies from third parties.
6. The parties indemnify each other in respect of any future property, financial ·or any other claims from the date of these Orders.
Issues
The following issues are relevant to the determination of this property dispute:
·whether the husband has provided full and frank financial disclosure;
·determining the value of the property ‘pool’;
·whether it is just and equitable to make property orders in this case;
·the parties’ contributions made prior to and during the relationship and following separation;
·whether the wife’s contributions were made more arduous because of serious domestic violence at the hands of the husband; and
·the parties’ respective future needs and obligations.
Evidence
Wife
The wife relies on the following documentation filed on her behalf:
·Amended Initiating Application filed 7 April 2016;
·Financial Statement filed 1 February 2018;
·Affidavit of Ms Shah sworn 30 January 2018 and filed 1 February 2018; and
·Her affidavit sworn and filed 23 April 2018.
The wife also provided the Court with a case outline document.
The wife also tendered to the Court the following documents:
·Bundle of documents including photographs of valuation report and receipts purportedly sent by the husband’s sister Ms J (Exhibit “1”);
·Bank 1 Statements (Exhibit “2”);
·Letter dated 8 February 2018 from Super Fund 2 and a letter dated 21 February 2018 from Super Fund 1 (Exhibit “3”); and
·Copy of correspondence received by the wife’s legal representatives from the husband and email correspondence dated 22 February 2018 (Exhibit “4”).
The wife also gave some brief oral evidence in chief. The wife was softly spoken and presented well. Given the husband’s non-participation, the wife was not cross examined.
Husband
As stated, the husband filed certain documents during the course of the proceedings and presumably he relies on the following documentation filed on his behalf:
·Response filed 11 April 2016;
·Financial Statement filed 11 April 2016; and
·His affidavit sworn 6 April 2016 and filed 11 April 2016.
Given the husband’s non-participation, the wife was unable to cross-examine him.
Discussion
The Court will now consider the parties’ respective proposals and submissions in light of the legislative requirements and the available evidence.
Identifying and valuing the parties’ interests
As stated, the Court must first identify and value the parties’ property, liabilities and financial resources. Generally speaking, the identification and valuation is at the date of the final hearing.[3] This will enable the Court to ascertain the net property pool.
[3] Warne & Warne (1982) 8 Fam LR 388 at 389 (per Simpson J; Strauss and Hase JJ agreeing); also see Omacini & Omacini (2005) 33 Fam LR 134 at 142 (per Holden, Warnick and Le Poer Trench JJ).
Prior to considering this step further, the Court will consider the preliminary issue of whether the husband provided full and frank financial disclosure of his financial circumstances.
Issues of disclosure
There is a clear obligation on a party to proceedings in family law matters to make a full and frank disclosure of all relevant financial circumstances. The mere compliance with rules of the Court or practice directions does not alter the basic principle of the need for full and frank disclosure.[4]
[4] As discussed in the cases of In the Marriage of Briese (1985) 10 Fam LR 642; [1986] FLC 91-713 and Oriolo v Oriolo (1985) 10 Fam LR 665; [1985] FLC 91-653.
The Rules of this Court provide for all parties to make full and frank disclosure of all relevant financial circumstances in family law matters.[5]
[5] See regulation 24.03 of the Federal Circuit Court Rules 2001.
Apart from requiring each party in financial proceedings to file a Financial Statement, the Rules also require the production and supply of relevant documentation. If one party fails to fulfil that obligation, it would theoretically be “open to that party to rely on the absence of satisfactory evidence to prevent the making of an order against him or her which otherwise justice and equity would require”.[6]
[6] Guinti and Giunti (1986) 11 Fam LR 160 at 165; [1986] FLC 91-759 at 75,555.
Notwithstanding the husband’s non-participation at the final hearing, it appears that financial disclosure was made during the period when the husband was represented. Generally speaking, the property pool, discussed below, appears certain.
Asserted assets and liabilities
The following table represents the assets asserted by the wife at the time of the final hearing:[7]
[7] In the table, ‘H’ refers to property registered in the Husband’s name or otherwise legally owned by him or in his possession; ‘W’ refers to property registered in the Wife’s name or otherwise legally owned by her or in her possession; and ‘J’ denotes property registered in the joint names of the Husband and the Wife.
| ASSETS | ||||
| Ownership | Description | Wife/de facto partner’s value | ||
| 1 | J | Net proceeds from Property A | 181,769 | |
| 2 | W | Funds withdrawn from Property A | 20,000 | |
| 3 | H | The (overseas) Property A | 50,590 | |
| 4 | H | 50% ownership of Property B | 63,237 | |
| 5 | W | Savings on Trust for [W] | 10,000 | |
| 6 | W | Motor vehicle C | 3,000 | |
| 7 | W | Bank 2 account | 400 | |
| 8 | W | Bank 1 account | 300 | |
| Total | $329,296 | |||
| ADDBACKS | ||||
| 9 | Savings drawn down from mortgage | 65,000 | ||
| Total | $65,000 | |||
| SUPERANNUATION | ||||
| Member | Name of Fund | Type of Interest | Wife/de facto partner’s value | |
| 10 | W | Super Fund 3 | Accumulation | 500 |
| 11 | H | Super Fund 2 | Accumulation | 94,302 |
| 12 | H | Super Fund 1 | Accumulation | 29,051 |
| Total | $123,853 | |||
| Net total assets (including Superannuation) | $518,149 | |||
‘Add-back’ argument
The wife argues that there should be an ‘add-back’ to the property pool by the husband in the amount of $65,000.00 being monies drawn down by the husband in 2014 from the parties’ then mortgage account.
The wife tendered a bank statement from the Bank 1 loan account which reflects that an amount of $65,000 was redrawn on 22 December 2014 (Exhibit “2”). The wife also gave oral evidence that this occurred during the relationship, and she was informed by the husband about the intended withdrawal and signed the relevant paperwork on the understanding that this was done in order to buy a property. The wife gave evidence that the money was then withdrawn by the husband and she did not see or use that money and nor did she know what the husband did with those funds. As part of Exhibit “2” was a copy of a Bank 1 statement in the husband’s name stating that the sum of $60,000 was deposited into the husband’s account on 29 December 2014. The statement also sets out that on 20 February 2015, there were separate cash withdrawals of $10,000 on 20 February 2015 and of $50,000 on 24 February 2015.
When determining how to approach the question of how to deal with the problem posed by what was once termed “add backs”, I agree with the view expressed by Judge Bender in Rockman (discussed earlier in these reasons) that the correct approach is to apply the law as it stood before Stanford and Bevan.[8]
[8] Rockman & Rockman [2014] FCCA 1966 at [127].
In AJO & GRO [2005] FamCA 195, the Full Court (Holden, Warnick and Le Poer Trench JJ) made the following comments about the approach to “add backs” at [30]:
To date, three clear categories of cases have emerged where the Court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a)Where the parties have expended money on legal fees...
(b)Where there has been a premature distribution of matrimonial assets…
(c)In the circumstances outlined by Baker J in Kowaliw and Kowaliw (1981) FLC 91-092 at FLC 76,644… (being those circumstances in which the Court will take into account financial losses incurred by the parties or one of them in the course of the marriage).
The Courts have long held that parties to a marriage are entitled to reasonably conduct their affairs post-separation in a manner that is consistent with properly getting on with their lives. Consequently, there is no appropriate basis for notionally adding back monies that existed at separation which have subsequently been spent on meeting reasonably incurred necessary living expenses.[9]
[9] Ibid, at [132]. Also see C & C [1998] FamCA 143; M & M [1998] FamCA 42; NHC & RCH [2004] FLC 93-204.
Given that is no evidence to suggest that these funds still exist, the monies taken cannot be treated as property in which the parties have a legal or equitable interest. Consequently, I am not satisfied that there should be an “add-back” in the balance sheet as sought by the wife. However, pursuant to s.75(2)(o) of the Act, the Court can take into account the dissipation of those funds by the husband.
As stated, the Court does not know the husband’s current financial position in relation to assets, liabilities and financial resources. Given the wife’s valuation and related evidence is unchallenged, and in the absence of evidence to the contrary, the Court will accept the evidence and sums she asserts above.
Finding
Based on the above table, the Court finds that the net asset pool is valued at $453,149.00 comprising $329,296.00 (in non-superannuation assets) and $123,853 (in superannuation assets).
Is it just and equitable to make any order?
The wife is before the Court seeking orders altering the property interests between herself and the husband. The parties were married for 17 years prior to separating in early 2015. As stated, the husband is incarcerated and not eligible for parole until 2037.
In this case the wife argues that it is clearly appropriate for the Court to make an adjustment pursuant to s.79 in this matter due to the following:
a)The parties were in a long marriage of approximately 17 years;
b)The parties have two children and the wife has adopted the husband’s child from a previous relationship; and
c)The parties have purchased property during the course of the relationship.
The Court agrees that there are compelling arguments in this case that it is just and equitable for the Court to make property orders pursuant to the Act.
Contributions
As stated, the Court is required to consider the parties’ contributions made on and from the commencement of their relationship,[10] during their relationship and following separation.[11]
[10] In the Marriage of Olliver (1978) 4 Fam LR 360; (1978) FLC 90-499.
[11] In the Marriage of Ferraro (1992)16 Fam LR 1; (1993) FLC 92-335.
Financial and non-financial contributions
In respect of financial and non-financial contributions, the following is clear from the evidence.
The wife did not have significant assets or liabilities upon the commencement of the marriage. The husband’s only significant asset at this time was a property in (overseas) and he had no significant liabilities.
During the relationship, the wife was employed on a fulltime basis at a (employer omitted) from 1998 to 2000. When the husband settled permanently in Australia in 2000, the wife ceased paid employment and attended to homemaking and parenting duties.
From the time of his permanent settlement in Australia in 2000 to 2003, the husband worked at a (employer omitted). In 2003 he commenced working as a (occupation omitted) with (employer omitted) until 2015 when he was placed into custody. As stated, the husband purchased a further property in (overseas) in 2005 or 2006 with his credit card. The wife provided $2,800.00 of her savings to pay down the husband’s credit card debt.
On 5 November 2011 the parties purchased Property A. The property was sold on 27 March 2015 for $482,000.00, the net proceeds being $196,283.69.
The husband has made no significant post-separation contributions.
Overall, I find that both parties made the financial and non-financial contributions to the property of the marriage.
Family contributions (as homemaker and parent)
In respect of family contributions, the following is clear from the evidence.
As stated, the wife’s role in the relationship was to be the sole carer of the children and attend to all domestic and homemaking duties. These duties would include feeding and bathing the children, helping with homework, cleaning the home and preparing meals. The wife also gives evidence that she would also do all the required driving, including driving the children to and from school and extra-curricular activities as well as driving the husband to and from the (employer omitted) for his work as the husband did not have an Australian driver’s licence.
The wife gives evidence that both during the relationship and following separation she was the sole carer of the children.
In this case the wife also argues that her contributions under section 79(4)(c) were made more arduous because of domestic violence at the hands of the husband.[12]
[12] Transcript, 24 July 2009, page 29 (lines 46-47). Also see in particular the wife’s first affidavit, paragraphs 31-32, 34 and 37.
In Kennon v Kennon (1997) 22 Fam LR 1, Fogarty and Lindenmayer JJ stated in their judgment:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79. We prefer this approach to the concept of “negative contributions” which is sometimes referred to in this discussion.
In the above formulation, we have referred only to domestic violence…but its application is not limited to that.[13]
[13] (1997) 22 Fam LR 1 at 24.
Later their Honours went on to make this comment:
It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect…[14]
[14] Ibid.
In this case the wife makes the following submissions based upon the available evidence:
1. The Applicant relies on the following authorities:
a. Kennon v Kennon (1997) FLC 92-757.
b. Kozovski & Kozovski [2009] FMCAfam 1014
2. The Applicant’s contributions are more arduous given the significant domestic violence she suffered at the hands of the Respondent.
3. The domestic violence the Applicant suffered was for the entirety of the marriage and was highly violent. It is appropriate to conclude that the domestic violence in this matter, is an exceptional case of the type described in Kennon v Kennon.
4. In the case of Kozovski & Kozovski, the Wife suffered a high level of domestic violence throughout the relationship, similar to that suffered by the Applicant in this matter. In Kozovski, the Kennon argument was applied by the Court and it was held the domestic violence made the Wife’s contribution significantly more arduous. The Court ordered the 10% adjustment sought by the Wife, although stated if it was asked to make a greater adjustment, it would have.
In this case the Court agrees with the wife’s submissions and finds that the husband’s proven behaviour had a significant impact in terms of making the wife’s family contributions more arduous than they ought need to have been.
Consequently, I find that the wife has made a significant contribution to the family pursuant to section 79(4)(c).
Global or asset-by-asset assessment of contributions
Given the circumstances of this case, I am, satisfied that the ‘global’ approach to the assessment of contributions is the most appropriate.
Contributions analysis
Given the available evidence, the Court is satisfied that the wife’s contributions exceed those made by the husband.
In percentage terms, I find that the final assessment of contribution is 60% in favour of the wife and 40% in favour of the husband.
Section 75(2) (and related) factors
As stated, the Court must have regard to the relevant factors under section 79(4)(d) to (g) of the Act in light of the evidence.
The wife seeks an adjustment in her favour due to a number of factors including that:
·The wife continues to have the sole care of the children aged 17 and 14.
·[X] has been diagnosed with Autism Spectrum Disorder and ostiopsychoma, a form of bone cancer, for which he is currently in remission.
·[X] requires ongoing care in hospital and future surgery regarding a 4 inch left leg discrepancy.
·[Y] has been deeply affected by the domestic violence perpetrated by the husband. [Y] has engaged in self-harming since 2016 and takes anti-depression medication daily. [Y] requires ongoing therapy.
·The wife has been diagnosed with anxiety and depression as a result of the domestic violence.
·The wife is unemployed and supported by a government pension.
·The wife has been unable to obtain and maintain employment due to the symptoms from her depression and anxiety. The wife experiences trouble sleeping and experiences flashbacks to the violence she suffered. The wife is also scared to drive, scared to leave her home and is unsettled when meeting new people.
·The wife is also physically disabled from the injury she sustained when the husband forced her to jump from the second storey balcony of their home. The wife walks with a limp and requires a walking stick and will have the limp for the rest of her life. As a result of the disability, the wife is in daily pain, cannot walk a long distance, cannot run and needs frequent breaks to conduct housework.
·The children’s health issues mean they are likely to be dependent on the wife for the foreseeable future.
·The husband is in custody and will not be eligible for parole until 2037.
·The husband is apparently in good health.
·The husband does not pay any child support or otherwise assist with any of the children’s expenses.[15]
[15] Wife’s case outline dated 31 January 2018.
In addition, the wife argues that the husband has benefitted from a premature distribution of matrimonial property by him having drawn down savings from the relevant mortgage in the sum of $65,000.
Section 79(4)(d): effect of any proposed order upon the earning capacity of either party to the marriage
As stated, the wife is unable to work due to medical reasons and is solely reliant on Centrelink benefits.
The husband is incarcerated and is ineligible for parole until 2037. He is likely to be deported to (country omitted) upon his release from prison as he is not an Australian citizen.
Given the available evidence, I find that the effect of any proposed order would not impact upon the earning capacity of either party.
Section 79(4)(e): matters referred to in sub-section 75(2) so far as they are relevant
(a) The age and state of health of each of the parties
The parties are aged 54 years and 51 years respectively. I otherwise refer to previous comments.
There is no available evidence as to the husband’s current health.
(b) The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
I refer to previous comments.
(c) Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
I refer to previous comments.
(d) Commitments of each of the parties that are necessary to enable the parties to support:
(i) himself or herself;
(ii) a child or another person that the party has a duty to maintain
I refer to previous comments.
(e) The responsibilities of either party to support any other person
I refer to previous comments.
(f) The eligibility of either party for a pension, allowance or benefits…
The wife is in receiving benefits from Centrelink otherwise I refer to previous comments.
The husband’s financial circumstances are unknown, but, as stated, he is incarcerated and ineligible for parole until 2037.
(g) Where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable
The parties have limited resources. I refer to previous comments.
(h) Extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income
This consideration is not relevant.
(ha) The effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant
I am satisfied that on the evidence presented, there are sufficient assets to satisfy the claims of all known creditors. I note that the husband’s sister purported to allege a claim in relation to the (overseas) properties.
(j) Extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party
This consideration is not relevant.
(k) Duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
The parties were married in 1998 and separated in 2015. The husband has been incarcerated since shortly after separation.
(l) Need to protect a party who wishes to continue that party's role as a parent
I refer to previous comments.
(m) If either party is cohabiting with another person – the financial circumstances relating to the cohabitation
Neither party is cohabiting with another person.
(n)Terms of any order made or proposed to be made under section 79
As the wife is not seeking spousal maintenance this consideration is not relevant.
(naa) Terms of any order or declaration made, or proposed to be made, under Part VIIIAB
This consideration is not relevant to the present dispute.
(na) Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
The wife receives no child support from the husband. As stated, the husband is incarcerated and ineligible for parole until 2037.
(o) Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
Subject to the issue of the alleged ‘add-back’ discussed below, there are no other factors which the justice of the case requires to be taken into account that have not been discussed previously in this decision.
‘Add-back’ argument
There is an absence of evidence surrounding what the husband did with the $65,000.00 he withdrew from the parties’ mortgage account in 2014. While the Court acknowledges the possibility that some of these may have been used to fund household and related expenses, I am unable to make that finding. Consequently, the Court is satisfied and finds that these monies represent a premature distribution of what would otherwise have been matrimonial property.
(p) The terms of any financial agreement that is binding on the parties to the marriage
This consideration is not relevant to the present dispute.
(q) The terms of any Part VIIIAB financial agreement that is binding on a party to the marriage
This consideration is not relevant to the present dispute.
Further adjustment analysis
In light of the above-mentioned circumstances, the Court finds that there should be a further adjustment in the wife’s favour pursuant to section 75(2) and related factors. Although the Court acknowledges that the husband’s circumstances are unknown, I am still satisfied that an adjustment in the wife’s favour of 15% is appropriate given all the circumstances.
Consequently, this would entitle the wife to 75% of the net asset pool.
Conclusion
In this case the Court has determined that a just and equitable division of the matrimonial property pool, in percentage terms, should be 75% to the wife and 25% to the husband. Nevertheless, I note that the wife proposes that the husband retain his interests in the (overseas) properties. This is a sensible concession in circumstances where he is likely to be deported back to (country omitted) following his lengthy incarceration. The husband will also be responsible for any liabilities relating to those (overseas) properties (and that would include any alleged liabilities owing to his sister). The two (overseas) properties in addition to the $65,000 addback would make up approximately 35% of the net asset pool. It is therefore appropriate that the wife gain and/or retain the entirety of the rest of the property pool located in Australia. This would include the husband’s superannuation benefits.
As to specific final Orders, the Court will adopt the substance of the Orders sought by the wife, with some minor modifications.
In summary, there will be orders for the wife to retain the net proceeds of the sale of the former matrimonial home (currently held in her solicitor’s trust account), for the husband to retain the two (overseas) properties currently held in his name, and for the wife to receive 100% of the husband’s superannuation interests.
There will be a further order enabling both parties to retain all other property, including real and personal property in their respective names, possession and/or control. The Court notes that this outcome will mean that the wife will have or retain approximately 65% of the property pool and the husband will retain approximately 35%.
To the extent that it may be necessary, there will be an order pursuant to section 106A of the Act as sought by the wife.
The Court is satisfied that the above outcome is just and equitable.
In relation to the issues of costs, I note that previous orders have been made. On 26 February 2018 orders were made in the following terms:
3. On account of the costs of today thrown away and on account of previous costs, the Applicant’s costs be reserved and fixed in the sum of $4,440.00.
Additionally, I note that the wife’s costs of the Court appearance on 23 March 2017 and of the Conciliation on 8 August 2016 were reserved, and the question of the wife’s costs were also reserved by the Court on 18 April 2016, 27 November 2015 and 4 June 2015 respectively.
Notwithstanding the previous orders in respect of costs, I note that the wife ultimately made a pragmatic decision not to seek her costs in this matter and consequently no costs order will be made. That said, in the event that these orders are set aside, the wife will presumably reconsider her position with respect to the issue of costs.
Lastly, there will also be an Order for the wife to cause a copy of the orders made and a copy of this judgment to be served on the Respondent by way of substituted service upon the relevant prison authorities.
There will be Orders and Notations of the Court set out at the commencement of these reasons to reflect this decision.
I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Judge Monahan
Date: 8 May 2018
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Consent
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Procedural Fairness
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Remedies
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Statutory Construction
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