SINTON & SINTON

[2013] FCCA 2270

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINTON & SINTON [2013] FCCA 2270

Catchwords:
FAMILY LAW – Property – Section 79A application to vary previous property orders – where previous orders made by consent –undefended – insufficient material to establish grounds – application dismissed – slip rule amendment – order – section 106A order.

Legislation:  
Family Law Act 1975 (Cth), ss.79, 79A, 90K(1)(d) & (e), 106A

Fickling & Fickling (1996) FLC 92-664
Gitane & Velacruz [2008] FamCAFC 86
Simpson & Hamlin (1984) FLC 91 576
Taylor v Taylor (1979) FLC 90-674

Applicant: MR SINTON

Respondent: MS SINTON

File Number: SYC 584 of 2010

Judgment of: Judge Kemp

Hearing date: 24 October 2013

Date of Last Submission: 28 October 2013

Delivered at: Sydney

Delivered on: 24 December 2013

REPRESENTATION

Applicant: In person, with the assistance of a (country omitted) interpreter

Respondent: No appearance

THE COURT ORDERS:

(1)That pursuant to the slip rule, the word and numeral “order 10” in orders 12 and 13 of the orders of the Family Court of Australia made on 25 June 2010 (“the final property orders”) be deleted and substituted with the word and numeral “order 11”.

(2)That it being satisfied that the wife has failed to comply with order 3.3.1.4 of the final property orders, the Registrar of the Court be and is hereby authorised to sign on behalf of the wife, pursuant to section 106A of the Family Law Act 1975, any share transfer form prepared by the husband to effect compliance with order 3.3.1.4 of the final property orders.

(3)That order 4 made on 11 February 2013 be discharged.

(4)That the husband be permitted to provide a copy of these orders and reasons to the Australian Taxation Office.

(5)That save for orders 1 to 4 above, the husband’s further amended Initiating Application filed 30 January 2013 be otherwise dismissed.

(6)The matter is otherwise removed from the active pending cases list.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 584 of 2010

MR SINTON

Applicant

And

MS SINTON

Respondent

REASONS FOR JUDGMENT

1.These proceedings relate to an application by the husband to set aside/vary orders and notations made by the Family Court of Australia on 25 June 2010 (“the final property orders”) pursuant to section 79A of the Family Law Act 1975 (Cth) (“the Act”), arising out of a terms of settlement document signed by the parties.

2.At the time of the final property orders, both the husband and the wife were represented by counsel, namely Mr Givney for the wife and Mr Maurice for the husband.

3.The husband now finds himself self-represented in the current application which has been made somewhat difficult given that at various times he has required the assistance of an interpreter in the (country omitted) language ((country omitted) dialect).

4.The wife did not appear at the hearing.

5.The final property orders are as set out in annexure “A” to the husband’s affidavit of 7 February 2013 and are reproduced below to the following effect:-

1.      The husband shall:-

1.1.Pay to the wife the sum of $185,000.00 payable as follows:-

1.1.1.As to the sum of $18,500.00 on or before 4.00 p.m. 23 June 2010.

1.1.2.As to the balance on or before 4.00 p.m. 16 September 2010.

1.2.Forthwith transfer to the wife his right title and interest in the property situate at and known as Property V (called the Property V property) and to give effect to this Order shall execute a Memorandum of Transfer at the time of execution of these Orders to be handed to the wife’s solicitor upon the Court making these Orders.

1.3.On or before 4.00 p.m. 15 September 2010 cause the discharge of the Portfolio loans, Loan Numbers (omitted) and (omitted) (collectively called the portfolio loans) by paying up to the sum of $240,000. 

1.4.Indemnify and keep indemnified the wife in respect of all liability of the Portfolio loans.

1.5.Cause the discharge of any personal guarantee given by the wife in respect of personal guarantees given by her relating to (omitted) Pty Ltd and (omitted) Pty Ltd and indemnify the wife in respect of any such guarantee.

1.6.Except as otherwise provided in these Orders cause the discharge of the wife’s liability in respect of any mortgages, loans or loan facilities acquired for the purposes of financing the purchase of properties or for any business purposes associated with corporations named and referred to in these Orders as the “entities”.

1.7.Indemnify the wife in respect of the mortgage to (omitted) secured upon the property at Property W (called the Property W property).

1.8.(omitted) Pty Ltd to transfer the Suzuki motor vehicle to the wife, registration number (omitted).

1.9.Forthwith withdraw the caveat registered upon the title of the property at Property P, Sydney.

2.      In the event the husband fails or neglects to comply with any of Orders 1.1, 1.2, 1.3 and 1.5 the husband shall forthwith do all acts and things necessary to sell the property situated at Property C, (called the Property C property) and in respect of such sale the following shall apply:-

2.1Place the property in the hands of a licensed auctioneer to sell the property within six weeks of the date of the default of any of the subject Orders.

2.2Upon the sale of the property pay the following:-

2.2.1Agent’s commission and legal fees occasioned by the sale.

2.2.2In discharge of the mortgage to (omitted) Bank.

2.2.3In payment of any sum for which the husband is liable to pay pursuant to the orders contained in paragraph 1 of these Orders.

2.2.4Pay the balance if any to the husband.

3.      The wife shall:-

3.1Upon the receipt of the transfer forthwith do all acts and things necessary to sell the Property V property and upon sale pay the proceeds as follows:-

3.1.1In payment of agents commission and legal fees occasioned by the sale.

3.1.2In discharge of the mortgage to the (omitted) Bank loan number (omitted).

3.1.3In payment of the then balance to herself. 

3.2Upon the husband’s compliance with Orders 1.1.1 and 1.1.2 forthwith transfer to the husband her right title and interest in the property situate at and known as Property W (called the Property W property), subject to the mortgage to (omitted) being land contained in (omitted).

3.3Transfer to the husband any shares  held by her in the following entities (and collectively called the entities):-

3.3.1.1(omitted) Pty Ltd.

3.3.1.2(omitted) Pty Ltd.

3.3.1.3(omitted) Pty Ltd.

3.3.1.4(omitted). (trading in (country omitted))

3.3.1.5The Sinton Unit Trust

3.4Resign from any office bearing position in any of the entities.

3.5Return to the husband all the books, physical and computer records and company seals of the entities.

3.6Subject to Order 15 sign all Forms of Withdrawals of Caveat over any property over which she has lodged a Caveat.

3.7Upon the completion of the sale of the property at Property P, Sydney the wife shall pay the sale proceeds as follows:-

3.7.1.1In payment of legal fees occasioned by the sale.

3.7.1.2In payment to the husband of his commission in the sum of $15,000 plus GST.

3.7.1.3In discharge of the mortgage to (omitted).

3.7.1.4GST on the sale to the Australian Taxation Office.

3.7.1.5In payment of the then balance to herself.

4.      In the event the husband fails to comply with Order 1.1.1 then the whole of the sum of $185,000.00 will become due and payable and otherwise Order 2 shall apply.

5.      In the event the husband fails to pay the sum of $185,000.00 and/or pay instalments as they fall due in respect of the (omitted) Mortgage secured on the Property W property then the parties shall forthwith do all acts and things necessary to sell the property and in respect of such sale the following shall apply:-

5.1The property shall be sold by way of public auction within six weeks of any date of default by the husband.

5.2Upon sale the proceeds shall be paid as follows:-

5.2.1In payment of agents commission and legal fees.

5.2.2In discharge of the mortgage to (omitted).

5.2.3In payment of the sum of $185,000.00 or such part as remain outstanding and interest to the wife.

5.2.4The balance if any to the husband.

6.      In the event that the Property W property upon sale does not enable the payment of such sum to the wife to discharge the husband’s liability in respect of Orders 1.1.1 and 1.1.2 then the husband shall do all acts and things necessary to sell the Property C property and in respect of such sale the same Order shall apply as Order 2 hereof subject to the husband paying the balance of the sum of the amount outstanding and interest if any to comply with Orders 1.1.1 and 1.1.2.

7.      The wife is declared sole and beneficial owner of the following properties and assets:-

7.1(country omitted) Property, (country omitted) Property,  [called the (country omitted) property].

7.2(country omitted) Property.

7.3Property P, Sydney.

7.4Mazda motor vehicle;

7.5Proceeds of sale of Property W

7.6Any item of personalty including bank accounts in her possession and/or control. 

7.7The proceeds of sale of the property at Property P, Sydney [called the Property P property].

8.      The husband surrenders all claim to the assets referred to in Orders 7.1, 7.2 and 7.3.

9.      The husband be declared sole and beneficial owner of the following properties and assets:-

9.1Property C [called the Property C property].

9.2(country omitted property), (country omitted).

9.3His shareholding in and the goodwill of and assets of the entities.

9.4Monies received by him from the sale of (country omitted) Property.

9.5(country omitted) Property, (country omitted) Property

10.    The wife surrenders all claims to the assets referred to in Orders 9.1, 9.2, 9.3 and 9.5.

11.    The husband shall pay the monthly mortgage instalments as they fall due in respect of the mortgage secured upon the (country omitted) property until 4.00 p.m. 30 June 2012, and shall indemnify the wife in respect of that liability for that period.

12.    Subject to the husband’s compliance with Order 10 the wife shall permit the husband’s parents to continue to occupy the (country omitted) property or either of them until 30 June 2012.

13.    In the event the husband fails to comply with Order 10 the wife then is at liberty to:-

13.1Cause the husband’s parents to be removed from occupation of the property.

13.2Enforce such sum as failed to be paid by the husband in either the Federal Magistrates Court or the Family Court of Australia and interest shall run on such amount from the first default of any of the husband’s obligations.

14.    The husband shall indemnify the wife in respect of all liability of the wife in relation to any personal guarantees provided by her during the course of the marriage.

15.    Until the husband complies with Orders 1.1, 1.3, 1.5 and 1.8 he is restrained from further encumbering the Property C property and the wife is at liberty to caveat such property and shall remove such caveat upon the husband’s compliance with the said Orders.

16.    The wife shall indemnify and keep indemnified the husband in respect of:-

16.1Subject to Orders 10, 11 and 12 the mortgage secured upon the (country omitted) property.

16.2Mortgage to (omitted) secured upon the Property P property & GST from the sale.

17. That pursuant to sec 90MT (1) (a) of the Family Law Act 1975 on or before 30th June 2010:

17.1The wife shall obtain a new corporate entity to be the trustee of a self managed superannuation fund to hold assets for her sole benefit. (“the new superannuation trustee”).

17.2The husband and wife in their capacity as directors of the (omitted) Pty Ltd, the trustee of the (omitted) Superannuation Fund (“the fund”), shall cause the trustee to transfer to the new superannuation trustee all of the assets (including the property situate at Property B1 of the fund and the parties will do all acts and things to transfer the whole of the husband’s superannuation entitlements in the fund to the wife to be held on her behalf by the new superannuation trustee.

17.3That the operative date for the purpose of this order is the date the order is made.

18.    The Court notes that the husband has continued to conduct business undertakings previously conducted by the parties during the course of the marriage.

19.    The parties acknowledge that they:

19.1Have been represented throughout the negotiations leading up to the making of these orders and have received advice about their rights under the Act; and

19.2Have resolved their dispute on the basis of the understanding that the liabilities of the parties is as follows:-

LIABILITIES
Property M(omitted) Pty Ltd(omitted) Pty Ltd(omitted) Pty Ltd(country omitted) Property(omitted)MR SINTONMR SINTONMR SINTONMR SINTONProperty BProperty B(omitted) Super Fund(country omitted) PropertyProperty WProperty LProperty VProperty C	Wife	Husband
21	MRS & MR SINTON	Property V	$1,500,000	$1,500,000
22	MR SINTON	Property C	$645,000	$690,000
23	MRS & MR SINTON	Property W	$165,000	$165,000
24	(omitted)	(country omitted) Property	E$62,456 AUD [RMB¥356K]	E$62,456 AUD [RMB¥356K]
25	MR SINTON and other third parties	(country omitted) Property,	E$87,719 AUD [RMB¥500K]	E$87,719 AUD [RMB¥500K]
26	(omitted) Pty Ltd	Property L	$822,778	$822,778
27	(omitted) Pty Ltd	Property B1	$736,292	$736,292
28	(omitted) Super Fund	Property B2	$71,432.27	$71,432.27
29	(omitted) Pty Ltd/L	Property M	$1,000,000	$1,000,000
Total		$5,090,678	5,135,677.27

20.    Noted except as provided otherwise, the parties agree that each of them shall remain the sole legal and beneficial owner, to the exclusion of the other, of all other assets registered in his or her name or in his or her current possession or control. No party shall have a claim against the other party’s assets acquired whether legal or beneficial after the date of this agreement.

21.    Noted neither party shall claim any entitlement to any future assets the other party acquires from the date of this agreement. Mr Sinton will remain the sole proprietor of proprietor of any assets he acquires form the date of this agreement.

22.    Noted pursuant to these Orders the wife is responsible for the mortgage to the (omitted) Bank Loan Number (omitted).  The monthly payments on the loan are $7,500.00 and the mortgage is in arrears of approximately three months.  The wife is unable to pay that mortgage.  As such it is imperative that the Property V property is sold as a matter of urgency.  The husband acknowledges his obligations under these Orders to discharge the Portfolio loans and personal guarantees of the wife which will enable the (omitted) Bank after payment of the mortgage to the bank to release the Certificate of Title to the wife.  The husband recognises that if he does not fulfil his obligations then the wife will suffer loss and damages which she shall seek to recover from him. 

Background

6.The terms of settlement document which formed the basis of the final property orders and notations came before Judicial Registrar Johnston (as he then was) on 31 May 2010 when Mr Givney of counsel appeared for the wife and Mr Low of counsel appeared for the husband.  The learned Judicial Registrar took the view that he did not have jurisdiction to make the orders sought and referred the matter to a Judge on 11 June 2010.

7.On 31 May 2010, the learned Judicial Registrar however, made interim parenting orders by consent to the effect that the children of the parties’ marriage, being X born (omitted) 1999 and Z born (omitted) 2001 (“the children”), live with the wife and spend defined time with the husband, being from 5.00 pm Friday to 8.30 pm Sunday each second weekend, with the first weekend commencing 11 June 2010 and at such other times as may be agreed between the parties. These orders were subsequently reflected in a terms of settlement document dated 22 June 2010, which became the subject of final parenting orders made by Justice Cohen on 25 June 2010 (“the final parenting orders”).

8.On 25 June 2010, Justice Cohen made property orders and notations by consent in Chambers in accordance with the terms of property settlement document dated 21 June 2010 signed by the parties and their legal representatives, being the final property orders. 

9.On 6 December 2010, the husband filed a contravention application in relation to the final parenting orders.

10.On 14 January 2011, the wife filed a contravention application in relation to the final property orders.

11.The husband’s contravention application first came before this Court on 15 February 2011 when it was stood over to 9 May 2011, being the first return date of the wife’s said contravention application.  The wife was directed to file and serve a Notice of Address for Service within 7 days.  On that occasion Mr Leamey, solicitor, appeared for the husband and the wife appeared in person.

12.On 25 March 2011, the husband filed an Initiating Application with a first return date of 1 April 2011 seeking that orders (2) to (5) of the final parenting orders be discharged and that the children live with him and spend defined time with the wife. 

13.On 31 March 2011, by Chambers order given that the wife was then in (country omitted), the first return date of the husband’s Initiating Application of 1 April 2011 was vacated and the said application was stood over to 9 May 2011, being the date that both parties’ contravention applications were then listed before the Court. The wife, however, had also filed a Notice of Discontinuance on 1 March 2011 seeking to discontinue her contravention application in relation to the final property orders.

14.On 9 May 2011, Mr Leamey appeared for the husband and Ms Webber appeared for the wife on a duty basis.  By consent, further interim parenting orders were made providing for the children to live with the husband and for the wife to have reasonable and flexible time with the children as arranged by the parties. The contravention application filed by the wife was formally discontinued and dismissed. The balance of the outstanding matters were then stood over to 11 August 2011.

15.On 29 July 2011, the husband filed an Application in a Case which sought orders that that wife sign certain withdrawals of caveat, that she deliver up certain items of property referred to in order 3.5 of the final property orders and that she vacate and sell the Property V property, the subject of order 3 of the final property orders.

16.The wife filed a response on 2 August 2011 to the husband’s Initiating Application (parenting), referred to in paragraph 29 above, to the effect that she substantially agreed with the orders sought by him. 

17.On 11 August 2011, fresh parenting orders were made discharging orders (2) to (5) of the final parenting orders and providing for orders that the children live with the husband and spend time with the wife as agreed by the parties including telephone contact, time each alternate weekend and on mother’s day weekend from after school Friday (or 3.00 pm) until Sunday at 8.30 pm, such period to commence on the first Friday after the making of the orders, the wife to pick up the children from their school and return the children to the husband’s residence.  Orders were also made that the husband not relocate the residence of the children outside the greater Sydney metropolitan area and that if the wife was unavailable to spend time with the children she was to notify the husband at least seven days in advance and the husband would care for the children during those times (“the fresh final parenting orders”). The Court also made directions with respect to the husband filing any affidavits referable to his Application in a Case referred to in paragraph 32 above and directed the wife to file and serve any response by 28 October 2011. The proceedings were then listed on 9 November 2011. The Court noted that the only other then outstanding application before the Court was the husband’s contravention application referred to in paragraph 26 above which related to the final parenting orders but which had then been superseded by the fresh final parenting orders.

18.On 31 October 2011, the husband filed a further Application in a Case which sought orders that the Court appoint a person to execute a transfer in the name of the wife as transferor, of all her interest in the property known as the Property W property to the husband so as to comply with order 3.2 of the final property orders together with costs.

19.On 7 November 2011, the wife filed a response to the husband’s Application in a Case referred to in paragraph 35 above.

20.On 9 November 2011, the husband’s contravention application was withdrawn and dismissed.  Similarly, the Applications in a Case filed by him on 29 July 2011 and 31 October 2011 were also withdrawn and dismissed. The husband was directed to file and serve any Reply to the wife’s Response to an Application in a Case filed 7 November 2011 and directions were made for the filing of affidavits.

21.On 16 February 2012, the Court made further procedural orders by consent but which relevantly included an order to the following effect:

Within 7 days of the date of these orders, the husband shall send an email to the wife outlining the tasks required of the wife to arrange for the transfer of the shares held by the wife in the entities outlined in order 3.3 of the orders made by the Family Court of Australia on 25 June 2010.

Further orders were also made seeking to have the parties attend mediation with the assistance of interpreters in the (country omitted) language ((country omitted) dialect).

22.On 16 February 2012, the husband appeared in person.  Ms Van Reader appeared on a duty basis for the wife and the Court noted that Mr Leamey appeared to be then no longer acting for the husband.  The proceedings were then adjourned to 14 May 2012. 

23.On 14 May 2012, Mr Dai appeared for the husband and there was no appearance for the wife.  On that occasion on the application of the husband, the Court dismissed all then current applications and the matter was removed from the acting pending cases list.  The Court, however, noted that the husband had previously sought enforcement of some of the final property orders and that the only outstanding issue before the Court at that time was effectively a transfer of shares in various corporate entities.  The husband had been directed to outline to the wife what needed to be done to effect the said transfer of shares.  Mr Dai said that that had been done and that the wife was to file a Response and affidavit within 28 days and that she appeared not to have done so.  Further, the parties had agreed for the outstanding issues to be dealt with before a suitably qualified mediator.  The implementation of the Court’s orders had it would appear, not progressed as the wife had left Australia at the end of February 2012 and had not returned.

24.The Court further noted that the husband sought to set aside or vary the final property orders on the basis of an asserted change in circumstances including he said, a $400,000 judgment entered against him in the District Court of NSW in 2012 and a change in the parenting arrangements between the parties.  It was noted that the husband intended to file a fresh Initiating Application. 

25.The husband did in fact file an Initiating Application on 22 May 2012. That Initiating Application was given a first return date of 13 August 2012 and sought relief under section 90K(1)(d) and (e) of the Act in relation to an asserted financial agreement. It became apparent that the husband, who was then represented by Mr Dai, was seeking to vary or set aside the final property orders. On 13 August 2012, upon Mr Dai’s application, the Court granted leave to the husband to file an amended Initiating Application so as to seek to achieve that outcome. On that occasion, there was no appearance by the wife. The proceedings were then adjourned to 30 August 2012 for mention.

26.On 24 August 2012, the husband filed his amended Initiating Application.

27.On 30 August 2012, Mr Dai appeared for the husband. There was no appearance for the wife. The proceedings were then adjourned to 6 September 2012, with directions for the husband to effect personal service on the wife.

28.The Initiating Application and various affidavits of the husband filed in support were then served on the wife on 4 September 2012 at Property A (“the Property A address”).

29.On 6 September 2012, when the matter came before the Court, Mr Dai appeared for the husband and the wife appeared in person.  Orders were made for the wife to file and serve any Response and an affidavit and the matter was then adjourned to 1 November 2012.

30.Relevantly, the wife filed a Notice of Address for service on 12 September 2012, disclosing the Property A address as her address for service. 

31.On 12 October 2012, the wife filed her Response to the husband’s Initiating Application together with an affidavit in support sworn on 2 October 2012.  That response sought orders dismissing the husband’s application with costs.

32.On 1 November 2012, the Court made directions for the husband to file and serve any further amended Initiating Application within 7 days and for the parties to be referred to conciliation.  The Court noted that Mr A was no longer representing the husband.  The husband attended in person as did the wife.  The Court noted that the wife was going to be absent from Australia between March and August 2012 and both parties required an interpreter in the (country omitted) language ((omitted) dialect) to be present.  The proceedings were then adjourned to 11 February 2013 for mention and the parties were directed to attend a conciliation conference with a Registrar on 7 January 2013 at 2.15pm. As it turned out, this was the last time that the wife engaged in these proceedings.

33.On 7 January 2013, the husband attended at the conciliation conference in person but there was no attendance by the wife. 

34.On 30 January 2013, the husband filed a further amended Initiating Application.

35.On 11 February 2013, when the matter came before the Court, the husband appeared in person with a (country omitted) language interpreter and again there was no appearance by the wife.  The Court ordered the wife to pay the husband the sum of $300 in relation to lost wages for his attendance at the conciliation conference given that she had not so attended and had provided no excuse for her failure to do so.  Further, the Court ordered that the wife forthwith deliver the husband’s two books of stamp collections to the Registrar of the Court to be held by the Court pending further order. The Court also made further directions that the wife file and serve any Response and affidavit to the husband’s further amending Initiating Application within 21 days and that within 30 days the wife cause to be prepared and lodged with the Australian Taxation Office (“ATO”) the taxation returns for the SAS superannuation fund for the financial years ending 30 June 2009, 2010, 2011 and 2012.  The parties were then referred to a further conciliation conference on 2 April 2013 with a Registrar and the proceedings were then adjourned for further mention on 12 April 2013.  The Court noted that if the wife failed to attend the conciliation conference or the adjourned date, the matter would then be listed for an undefended hearing.  The Court noted that the husband would also have available information on the adjourned date, if necessary, as to the costs of an accountant in preparing the tax returns for the (omitted) Superannuation fund.

36.On 2 April 2013, the matter came before the Registrar at a conciliation conference.  Neither the husband nor the wife attended, albeit the Registrar spoke to the husband by phone when he stated that the wife was then in (country omitted) and that he did not expect her to attend the conference.  Accordingly, the matter was simply put back before the Court on 12 April 2013.

37.On 12 April 2013, the Court made orders for the husband to serve on the wife his further amended Initiating Application together with sealed copies of the Court’s orders made that day and on 11 February 2013 and together with all the husband’s affidavits in support. Personal service was dispensed with and service was ordered to be effected by leaving the said documents at the Property A address together with a letter requesting that the documents be brought to the attention of the wife. The Court notes that this was the address for service as contained in the wife’s Notice of Address for Service as filed on 12 September 2012, referred to in paragraph 47 above. The husband also explained to the Court that the wife’s adult daughter, Y, (and it became apparent, his daughter) lived at this address as well and that she would be able to bring the documents to the attention of the wife with whom she was in regular contact. The husband was directed to file an affidavit deposing to compliance with the orders for substituted service to be filed prior to the adjourned date being 24 October 2013 at 10.00 am for undefended hearing or mention. The Court noted that if the wife failed to appear on the adjourned date or failed to comply with any orders previously made, the matter may proceed on an undefended basis and orders may be made in accordance with the husband’s further amended Initiating Application. The husband was to provide a short case outline document three working days prior to the adjourned date.  The husband did not provide such a case outline document but the Court notes that the husband was self represented and did not speak English as his first language. 

The Undefended Hearing

38.On 24 October 2013, the matter came before the Court (“the hearing”). The husband attended in person and there was no appearance by the wife. A (country omitted) language interpreter ((country omitted) dialect) also attended and assisted the husband as and when needed, noting that by and large, the husband was able to understand what fell from the Court and the interpreter was only required on a limited number of occasions.

39.The husband relied on a number of affidavits, being:

a)his affidavit of 7 February 2013;

b)his affidavit of 23 March 2011;

c)his affidavit of 16 December 2011;

d)his financial statement filed 22 May 2012; and

e)the affidavit of Mr David Leamey filed 31 October 2011.

40.The Court has also considered the following documents filed by the wife:

a)her Response filed on 12 October 2012;

b)her affidavit in support filed 12 October 2012; and

c)her Notice of Address for Service filed 12 September 2012.

41.The Court has before it the affidavit of service of Ms M re-sworn on 13 April 2013 which deposed to handing various documents, including the Court’s Orders of 11 February 2013 and the husband’s further amended Initiating Application to the tenant “J” (being the housemate of the parties’ daughter, Y) at the Property A address.  At that time, the tenant informed the process server that the wife was in (country omitted) but that the documents could be left at that address for her.

42.The Court also has before it the Affidavit of Service of Mr T who deposes to service on 31 August 2013 of the husband’s further amended Initiating Application, affidavits and the Court’s order of 11 February 2013 by handing the same to the parties’ daughter, Y at the Property A address in accordance with the orders of 12 April 2013 (see paragraph 54 above).

43.The Court raised with the husband the issue of service on the parties’ daughter, who he says was 23 years of age and had who he understood had been in contact with the wife at least as late as some 3 weeks prior to the hearing.

44.The Court attempted to contact the husband’s daughter by telephone on two occasions during the hearing, but on each of those occasions the telephone call went to the daughter’s mobile voicemail message service. The husband also stated to the Court on the hearing that the wife had recently been in Australia, but he had not seen or spoken to her at that time. The husband asserted that he had been informed of this by his daughter, Y, upon whom the documents had been served in accordance with paragraph 59 above.

45.The Court was obviously concerned to ensure that the husband’s latest application had been brought to the attention of the wife.

46.The Court accepts that the wife was well aware of the directions to file her Response and affidavit which she attended to as a result of her appearance on 6 September 2012.  She was also in attendance on 1 November 2012 when the matter was referred to the conciliation conference in January 2013 and was given the adjourned date of 11 February 2013.  She did not attend Court on 7 January 2013, nor at any subsequent date.

47.In those circumstances and to seek to bring finality to the proceedings, the Court proceeded to hear the husband’s application in the absence of the wife but satisfied that she was well aware of the proceedings and had elected for her own purposes not to attend.

48.The husband also provided by way of tender, Exhibit “A”, which confirmed that, at least as of July 2013, (omitted) Bank were forwarding bank statements of an account in the wife’s name to her at the Property A address and the Court is accordingly, satisfied that service at that address in terms of the Court’s orders was likely to bring the proceedings to the notice and attention of the wife. The wife had not done anything to change her address for service from the Property A address and the Court accepts that it was clearly her obligation to do so if she did not want service of documents to be effected on her at that address.

49.The proceedings have had, therefore, a relatively complex history. The recitation of that history has been made more complex by virtue of the fact that the husband is now self-represented. When the wife did appear she was also on occasion self-represented and both parties have to some degree, required the assistance of interpreters from time to time.

50.The wife has at times sought enforcement of the final property orders and the husband has opposed that on various bases.  The husband now seeks that those orders be now varied in terms of the orders set out in his further amended Initiating Application filed on 30 January 2013 to the following effect:- 

1.Pursuant to s 79A(1)(a)b, c and/or d and s 80 of the Act, vary the orders as set out in the terms of settlement dated 21 June 2010 as follows:-

ii)An additional order that the wife pay to the husband the sum of $800,000.00 or such other amount as the court considers appropriate.  Section 79A(1)(a) and 79(1)(d).

iii)That existing order 17 have appended to it a new order, “17.4,” that within 30 days the wife cause to be prepared and lodged with the Australian Taxation Office, the funds tax return for the financial years ended 30 June 2009 and each year thereafter until the fund was closed (section 79A(1)(b) and (c)).

iv)Append to order 12 if the wife defaults in her performance of order 12 then she shall forthwith pay to the husband the sum of A$100,000.00 or such other amount as the court considers appropriate.  Section 79A(1)(c).

v)A declaration that the wife did default in her performance under the original order 12 and order that the wife pay to the husband the sum of a A$100,000.00 or such other amount as the court considers appropriate.  Section 79A(1)(c).

vi)Append a new order 23 that within seven days the wife deliver to the husband his stamp collection which was left behind at the matrimonial home by him and the husband be declared the sole legal and beneficial owner of the said stamp collection.  Section 79(1)(a).

vii)Order 3.3.1.4 be discharged and in lieu append a new order, order 3.3A “instead of transferring (omitted) (trading in (country omitted)) to the husband the wife pay to the husband the sum of A$50,000.00 (section 79A(1)(a) and (c)).

51.The husband now asserts that he does not seek to set aside any of the final property orders but rather to vary them by the addition of the orders as set out above. 

The Husband’s section 79A application

52.Under section 79A of the Act, the Court has to be satisfied as to the circumstances set out therein to ground any application to vary or set aside orders and then the Court may [emphasis added], in its discretion, vary the order or set aside an order and if it considers appropriate, make another order under section 79 in substitution for the order so set aside.

53.Section 79A of the Act provides as follows:

(1) Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:

(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or

(b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or

(c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or

(d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or

(e) a proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage;
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.

(1A) A court may, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.

(1AA) For the purposes of paragraph (1)(d), a person has caring responsibility for a child if:

(a) the person is a parent of the child with whom the child lives; or

(b) a parenting order provides that:

(i) the child is to live with the person; or
(ii) the person has parental responsibility for the child.

(1B) An order varied or made under subsection (1) or (1A) may, after the death of a party to the marriage in which the order was so varied or made, be enforced on behalf of, or against, as the case may be, the estate of the deceased party.

(1C) Where, before proceedings under this section in relation to an order made under section 79 are completed, a party to the marriage dies:

(a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;

(b) if the court is of the opinion:

(i) that it would have exercised its powers under subsection (1) or (1A) in relation to the order if the deceased party had not died; and

(ii) that it is still appropriate to exercise its powers under subsection (1) or (1A) in relation to the order;
the court may vary the order, set the order aside, or set the order aside and make another order under section 79 in substitution for the order so set aside; and

(c) an order varied or made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.

(2) In the exercise of its powers under subsection (1), (1A) or (1C), a court shall have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested.

(3) In this section, a reference to an order made by a court under section 79 includes a reference to an order made by a court under section 86 of the repealed Act.

(4) For the purposes of this section, a creditor of a party to the proceedings in which the order under section 79 was made is taken to be a person whose interests are affected by the order if the creditor may not be able to recover his or her debt because the order has been made.

(5) For the purposes of this section, if:

(a) an order is made by a court under section 79 in proceedings with respect to the property of the parties to a marriage or either of them; and

(b) either of the following subparagraphs apply to a party to the marriage:

(i) when the order was made, the party was a bankrupt;
(ii) after the order was made, the party became a bankrupt;
the bankruptcy trustee is taken to be a person whose interests are affected by the order.

(6) For the purposes of this section, if:

(a) a party to a marriage is a bankrupt; and

(b) an order is made by a court under section 79 in proceedings with respect to the vested bankruptcy property in relation to the bankrupt party;
the bankruptcy trustee is taken to be a person whose interests are affected by the order.

(7) For the purposes of this section, if:

(a) an order is made by a court under section 79 in proceedings with respect to the property of the parties to a marriage or either of them; and

(b) either of the following subparagraphs apply to a party to the marriage:

(i) when the order was made, the party was a debtor subject to a personal insolvency agreement;

(ii) after the order was made, the party became a debtor subject to a personal insolvency agreement;
the trustee of the agreement is taken to be a person whose interests are affected by the order.

54.The Court notes that if a section 79 order is set aside, any fresh order is to be determined at the date of the hearing and not at the date that the original order was made, see Fickling & Fickling (1996) FLC 92-664.

55.The thrust of the husband’s case is that there should be, inter alia, an additional order that the wife pay him the sum of $800,000.00 or such other amount as the Court considers appropriate based on section 79A(1)(a) and/or (1)(d) of the Act.

56.In relation to the matters under section 79A(1)(a) of the Act, the Court asked the husband to identify the matters of fraud, duress, suppression of evidence or the giving of false evidence or any other circumstance which gave rise to a miscarriage of justice. The husband could not identify any matter which he said gave rise to a fraud. When asked about duress he raised the issue of an apprehended violence order taken out in May 2012 against the wife. That, however, post-dates the final property orders by nearly some two years and accordingly, could not give rise to any assertion of duress existing as at the time of the making of the final property orders by consent.

57.The husband also asserted that he was under pressure at the time of the settlement of the property dispute given, he said, that he wanted to provide the wife with a property in (country omitted) but she had insisted on obtaining the (country omitted) property and that she had also wanted a sum of money to pay towards the mortgage on the Property V property. None of those matters, however, could go towards any finding of duress, particularly given that at the time of the making of the final property orders both parties were represented by counsel and that this sort of bargaining clearly reflected the parties’ engagement in settlement discussions. There appeared no matters of duress and the Court notes specifically that paragraph 19 of the final property orders provided for an acknowledgement that the parties had been represented throughout their negotiations leading up to the making of the said orders and had received advice about their rights under the Act and had resolved their dispute on the basis of their understanding that their liabilities were as recorded in the underlying terms of settlement document.

58.In reference to the other grounds under section 79A of the Act, the husband also says that the wife suppressed evidence. This appeared to relate to funds held in a superannuation account the subject of order 17 of the final property orders.

59.It became apparent that both the husband and the wife were the directors of a company called (omitted) Pty Ltd which acted as the trustee of the (omitted) Superannuation Fund.  The husband says that the wife held the only password to obtain details of the said superannuation fund’s trading history with (omitted) and without that password, he was unable to obtain documents to enable him to lodge tax returns with the ATO. This was the basis of his assertion that the wife had supressed evidence. However, it was also clear that he was well aware of that history and of the existence of the password with (omitted) at or about the time of his consenting to the final property orders. This could not amount to a suppression of evidence. There is no evidence which would link the wife’s failure to provide such a trading history with the husband’s obligation to effect a transfer of his superannuation entitlements in the (omitted) Superannuation Fund. The evidence is to the effect that the husband has in fact effected that transfer. The Court however understands from the husband that he has been unable to provide to the ATO information sought by them at a time prior to the said transfer but that subsequently he has had no further enquiries made of him by the ATO.

60.Further, in relation to the issue of the suppression of evidence, the husband asserted that the wife had placed funds into their daughter’s account to hide such moneys from him.  However, he was able to show that those funds (albeit as the wife claimed in the sum of $80,000.00 and as he then claimed in the sum of $130,000.00) had, in fact, been disclosed to him at item 32 described as “the daughter’s trading account” under “financial resources” in a document known to him at the time of the making of the final property orders and referred to as the balance sheet used in the Court “immediately prior to entering into the terms of settlement”, as deposed to in his affidavit sworn 7 February 2013 (at paragraph 62) with the said document being annexure “D” to that affidavit

61.In those circumstances, the Court is not satisfied that the husband has made out any ground under s.79A(1)(a) of the Act for the Court to vary, set aside or make any other order referable to his application.

62.With respect to 79A(1)(b) of the Act, the husband seeks an order that the wife prepare and lodge with the ATO the relevant superannuation fund’s tax return for the financial years ended 30 June 2009 and each year thereafter until the fund was closed. He says that he had received contact from the ATO about this issue.

63.The relevant order, being order 17 of the final property orders, required the wife to establish a new superannuation trustee.  The husband says that he understood that the wife had subsequently effected this and that the new trustee was known as the (omitted) Super Fund and that he had become aware of this in about April 2012.  The husband says, and he attaches to his affidavit sworn 7 February 2013, his response to the ATO (annexure “H”) and deposes that since he informed the ATO that he now no longer has any involvement with that superannuation fund, he has not heard anything further from them.

64.In those circumstances, the Court is not satisfied of the facts and matters that it would need to be satisfied of under section 79A(1) of the Act that there should be any further order in terms of that being sought by the husband in relation to order 17 of the final property orders.

65.Insofar as a further order with respect to order 12 of the final property orders is concerned, the husband asserts that order 12 provided that, subject to his compliance with order 10, the wife shall permit the husband’s parents to continue to occupy the (country omitted) property or either of them until 30 June 2012.

66.The reference to order 10, where it appears in orders 12 and 13 the final property orders, must be read as a reference to order 11 as it is order 11 which imposes an obligation on him to pay the monthly mortgage instalments as they fell due in respect of the mortgage secured over the (country omitted) property.  Order 10 relates to the wife surrendering all claims to various assets identified in orders 9.1, 9.2, 9.3 and 9.5.  In those terms, the Court is of the view that the reference to order 10 in orders 12 and 13 should in fact be a reference to order 11 and the Court will effect that amendment pursuant to the provisions of the slip rule.

67.The husband says that it was his parents who paid the mortgage instalments pursuant to his obligation under order 11 of the final property orders and that those payments were therefore, made on his behalf. The husband said that the wife maintains however, that the payments by his parents were by way of lease payments and that he had a separate obligation to pay the monthly mortgage payments himself.  The husband says that this is disputed but in any event, the wife had his parents vacate the (country omitted) property and as such, they were required to be accommodated in a hotel for some eight months and that thereafter he had been forced to find them alternative accommodation in (country omitted).

68.The husband seeks to add to order 12 of the final property orders a further order which provides that if the wife defaults in her performance of order 12, then she shall forthwith pay to the husband the sum of $100,000.00 or such other amount as the Court considers appropriate.  This is in effect seeking to have an order made which predetermines or quantifies a damages claim arising out of an asserted breach.  Further, the husband seeks a declaration that the wife has in fact defaulted in her obligation under order 12 and that therefore, she should be ordered to pay him the said sum of $100,000.00.

69.What in effect the husband is seeking to do, is to claim some form of predetermined lump sum compensation for the wife’s asserted failure to comply with order 12 by way of a change to the terms of the order itself. That is a matter which could and should be dealt with by way of an enforcement application rather than by way of a section 79A application as the husband is, in fact, seeking to obtain damages as a result of the wife’s asserted breach of that order.

70.Further, the husband seeks to add a new order 23 to the final property orders which requires the wife to deliver to him his stamp collection which he says was left behind at the matrimonial home by him and that he be further declared the sole legal and beneficial owner of the said stamp collection.  The Court notes that it made an interim order on 11 February 2013, being order 4 requiring the wife to deliver the husband’s the stamp collection to the Court to be held by the Court pending further order which has, it would appear, not been complied with by the wife.

71.Paragraph 20 of the final property orders is in fact a notation by the Court that, except as otherwise provided, the parties agree that each of them shall remain the sole legal and beneficial owner to the exclusion of the other, of all other assets registered in his or her name or in his or her current possession or control. No party shall have a claim against the other parties’ assets acquired whether legal or beneficial after the date of the agreement. The husband would have been well aware of the existence of his stamp collection at the time the terms of settlement document was brought into existence and the final property orders were made and any reference to the stamp collection should have been inserted in the agreement at that time. It is not now a matter which would give relief under section 79A(1) of the Act. The Court discharges order 4 made on 11 February 2013.

72.Further, the husband seeks the discharge or setting aside of order 3.3.1.4 of the final property orders which requires the wife to transfer to the husband any shares held by her in a corporate entity known as (omitted) (trading in (country omitted)).  The husband says that that entity was originally owned as to 40 per cent by his mother, 30 per cent by him and 30 per cent by the wife.  He says that the said entity was initially set up by a relative of the wife and that it is now somewhat problematic in getting the shares from the wife transferred into his name in relation to it. 

73.The Court has already made an order in terms of that referred to in paragraph 38 above, to place the wife on notice of her obligations to comply with the final property orders.  The husband says that in lieu of that order there should be an obligation on the wife to pay him the sum of $50,000.00.  He does not in any way show how the sum of $50,000.00 is quantified or, indeed, is determined other than by referring in his oral submissions to some certificate of incorporation which he said in turn referred to US$20,000.00 capital.

74.The Court is satisfied that the wife has failed to transfer to the husband the shares the subject of the order made as referred to in paragraph 38 above so as to implement her obligation pursuant to order 3.3.1.4 of the final property orders. In those circumstances, the Court will order pursuant to section 106A of the Act, that the Registrar of the Court be empowered to sign and sign on behalf of the wife any share transfer prepared by the husband so as to effect compliance with order 3.3.1.4 of the final property orders.

75.Returning to the central plank of the husband’s case for an additional order that the wife pay him $800,000.00, the husband was unable to inform the Court in his oral submissions as to how that sum was determined and quantifies, therefore, the Court gave him seven days in which to provide that information. 

76.The Court received from the husband a document which sets out the following as the basis of his quantification for the sum of $800,000. The husband conceded that the $800,000 is not calculated in any specific manner. He states:

The amount has no specific calculation. It is an extra amount to reflect the change in circumstances & hardship in me in raising the 2 children. The wife represented that she would be raising the children & she would need more assets to raise them. Then abandoned them almost immediately. The asset pool asserted by each party is as set out in my affidavit of 7 February 2013.

At paragraph 68, I state that I considered it to be a 60:40 split in favour of the wife. The net assets were just under or just over $5million depending upon which party. The payment to me of $800,000 was rounded down to represent an equitable adjustment of the allocation of the pool. I would then receive more than 40%.

Pool size on my figures	$4,779,638
Amount husband received	$1,691,105
Extra sought now	$800,000
Total to husband	$2,417,105	52.12%

Pool size on wife’s figures	$4,549,638	Before add backs
Amount husband received	$1,866,105
Extra sought now	$800,000
Total to husband	$2,666,105	58.60%

Pool size on wife’s figures	$5,368,446	After add backs which are disputed
Amount husband received	$2,684,913
Extra sought now	$800,000
Total to husband	$3,484,913	64.91%

·   The add back $818,808 is my parents money. Ex wife put my parents money to our asset pool.

77.The $800,000.00 figure appears, therefore, to be based on some adjustment to now bring about a close to 60:40 per cent split in the husband’s favour given that he now has the care of the children. This appears to be based on the premise that as the wife received a 60:40 per cent split in her favour when it was agreed that the children were to live with her, that that should be now reversed in the husband’s favour given that the children now live with him. His affidavit says that as a result of the wife not having any interest in the children, they came to live with him and that he had to devote a substantial amount of his time to looking after them which he says distracted him from running his business and caused him financial loss. 

78.The husband says that as a result, in late 2010 his business was not doing well. He had been working on a property development at Property M which had stalled due to a joint venture dispute and that he was then struggling financially. He also asserted that he had been engaged in commercial litigation with a previous business partner in the District Court of NSW and on 4 May 2012, Judge Murrell SC of that Court had given judgment against him and ordered him to pay $400,000.00 plus interest and court costs. The husband says that he does not know whether he can afford to pay this sum but seeks to obtain it from the wife. His main concern was that he is now struggling financially while he believed the wife was living “a luxurious lifestyle in (country omitted).” Unfortunately, the Court is not satisfied that the husband’s financial misfortunes and his belief that the wife has in some way contributed to them meets the threshold under section 79A of the Act.

79.The Court referred the husband to the Full Court of the Family Court of Australia’s decision in Simpson & Hamlin (1984) FLC 91 576. In that case, the Full Court agreed that a simple change to the “custodial arrangements” for a child after the making of a property order would not constitute exceptional circumstances under section 79A(1)(d) of the Act. The Court, however, noted that there could be such a change if the change in arrangements was so exceptional so as to take it out of the normal vicissitudes of life. The Court is not satisfied on the evidence that this is the case here.

80.The test would appear to be whether the change in care arrangements was within the reasonable contemplation of the parties at the time the final property orders were made.  In those circumstances, it is clear that at the time of the final property orders there were already interim orders that the children live with the wife.  That position was reflected in the final parenting orders which were made final at the same time as the final property orders. Although the children’s living arrangements were effectively reversed, the husband’s complaint that this in some way distracted him from his business and involved him in litigation with his business partner causing him loss, appears entirely remote and does not persuade the Court.

81.Further, it would also appear that it was the husband himself who commenced the fresh parenting proceedings on 25 March 2011 (see paragraph 29 above), seeking that the children live with him and the discharge of certain of the final parenting orders.  It was the wife who consented to the husband’s application in terms of her response filed 2 August 2011 and this consent position was subsequently confirmed in the fresh final parenting orders made by this Court on 11 August 2011.  In those circumstances, the Court is of the view that as it is a well-established principle that a person who orchestrates a change in circumstances should not then be in a position to benefit from that, the husband’s application on this basis should also be refused.

82.The husband refers to competing views as to the matters which were the subject of resolution by way of the final property orders.  His assertion was that the wife ended up with 60 to 65 per cent of the property pool based on her having the children live with her.  The wife asserts that she ended up with 50 per cent of the property pool.  The husband is seeking in those circumstances, an adjustment based on him having the care of the children is also met with the difficulty concerning the parties’ disputation over the size of the property pool and therefore, the differing percentage splits relied upon in forming the basis for the final property orders made. 

83.As referred to in Simpson & Hamlin, the Court cannot make a finding today that the husband would suffer hardship if the final property orders were not changed, based on some assumption that his original consent to those orders reflected the wife’s responsibility for the care of the children in the future.  On the current facts, there appears no basis for that assumption.  There having been a consent order, there were no recitals or other indications as to what had motivated the parties in their final agreement. 

84.Even if the Court was satisfied that the change to the parenting arrangements for the parties’ children, namely that the children now live with the husband, could be described as of an exceptional nature and if the Court accepted that this change did result in some hardship to the husband, this Court must consider in the exercise of any discretion whether that hardship is of such a serious nature that it results in such inequity which could only be rectified by the extreme step of setting aside or varying an existing order, given that litigation must come to an end, see Taylor v Taylor (1979) FLC 90-674 at page 78 595 per Mason J. In the circumstances of this matter, the Court is not so satisfied.

85.Further, in Gitane & Velacruz [2008] FamCAFC 86, the Full Court of the Family Court of Australia stated in reference to section 79A applications, that:

… we do not think it would be correct to say that there is even a prima facie entitlement to have the consent orders set aside once a miscarriage of justice has been established, because to do so would be to limit the discretion of a court and to place an onus on the respondent to show circumstances why the order should not be made. The better view, in our opinion, is that an applicant for an order under s 79A(1) bears the onus of satisfying the court that the original orders should be set aside or varied, and that includes the onus of satisfying a court not just that there has been a “miscarriage of justice” but also that the appropriate exercise of the discretion is to so order.

86.The Court is not satisfied that the husband has in those terms, satisfied the onus that there should be an exercise of discretion in his favour.

87.The husband further raised an issue as to whether certain monies should have been added back or not. The issue of the add backs was well known to the parties and although it appears that there may have been some outstanding dispute about their quantum, the parties (advised by their legal representatives) made what the Court can only assume was a commercial decision to settle the proceedings on the terms that they did. It is important to note that the matter did not proceed to a final hearing and therefore, any issue and evidence regarding add backs was not tested. The matter settled prior to a final hearing, as many matters do. To allow the husband to now, in effect, re-engineer a settlement that is more advantageous to him would not be in accordance with the principles of section 79A of the Act.

88.Notwithstanding the husband’s assertions regarding the $800,000.00, there is simply no evidence before the Court as to how the wife would meet that payment if she was ordered to pay. The husband concedes that there are no assets of value of the wife remaining within the jurisdiction of the Court.

89.Further, on the husband’s own concession, the Court cannot be satisfied that there are any assets in this jurisdiction to satisfy the orders sought by him if they were in fact, made and in those terms the Court must be satisfied that any orders it makes would be capable of enforcement. The Court is not so satisfied here.  Exhibit “A” shows a number of closed accounts with the only remaining accounts to which the wife may have access to holding balances of $1.94 and $134.13 as at 31 August 2013.

90.The husband also confirmed that it was unlikely that even if orders were made in this jurisdiction in his favour they would be enforceable in (country omitted), particularly given his previous difficulties with the wife with respect to other provisions pursuant to the final property orders.

91.The Court inquired as to whether the wife had maintained her child support obligations given that the children were living with the husband.  The husband provided no evidence before the Court saying that he had left such material at home.  However, it would appear that there was a current child support assessment in place at the time of the hearing and that there may be arrears owed by the wife.  In those circumstances, the husband potentially has recourse to recovery mechanisms through the Child Support Agency

92.No doubt the child support assessment being in the husband’s favour to some extent potentially deals with some of the issues of financial hardship now claimed by him.  Nevertheless, the other matters of hardship which related to his then inability to put his full efforts towards his business, appeared to have little connection with any rational basis for setting aside or varying the final property orders.

93.The husband has been somewhat hampered by the wife’s decision not to engage in these proceedings. However, regardless of this, the wife’s refusal to engage is not in itself, sufficient to compel the Court to make the orders as sought by the husband. The usual section 79A considerations must still apply.

94.In all of the above circumstances, the Court is of the view that the husband’s application should be dismissed.  The Court will, however, make an order to implement order 3.3.1.4 of the final property orders in terms of paragraph 91 above.

95.Otherwise, the husband’s further amended Initiating Application as filed is hereby dismissed.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Kemp

Date:  24 December 2013