Smythe and Gorrie (No.2)

[2018] FCCA 307

FEDERAL CIRCUIT COURT OF AUSTRALIA

SMYTHE & GORRIE (No.2) [2018] FCCA 307

Catchwords:
FAMILY LAW – Application for alteration of property interests – establishment of the pool of assets and liabilities – findings as to contribution and future needs.

Legislation:

Family Law Act 1975, ss.75, 79

Cases cited:
Bevan & Bevan [2013] FamCAFC 116
Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395
Stanford & Stanford [2012] HCA 52
Vass & Vass [2015] FamCAFC 51

Applicant: MS SMYTHE

Respondent: MR GORRIE

File Number: WOC 1261 of 2015

Judgment of: Judge Altobelli

Hearing dates: 11-12 May; 9 June; 3 August; 23 August and 4 December 2017

Date of Last Submission: 4 December 2017

Delivered at: Wollongong

Delivered on: 16 February 2018

REPRESENTATION

Counsel for the Applicant: Mr S Schonell

Solicitors for the Applicant: Nikolovski Lawyers

Counsel for the Respondent: Ms Gillies SC

Solicitors for the Respondent: Hansons Lawyers

ORDERS

1. Within 7 days the Husband and the Wife instruct Accorn Lawyers to distribute money held on trust for them in the following manner:

   (a)$17,500 to Ms C;

   (b)$7,124.70 to (business omitted);

   (c)$1,280 to Dr M;

   (d)$56,717.38 to the Husband;

   (e)$58,435.50 to the Wife;

   (f)The remaining balance to the Husband and Wife in equal shares.

2. The Husband to indemnify the Wife, and keep the Wife indemnified as regards any amount owed by him to the Australian Taxation Office, whether arising from the business known as (omitted business) or otherwise, or any other liability arising from the said (omitted business), or any debt owed to his parents or either of them, or any other debt.

3. The Wife to indemnify the Husband, and the Husband indemnified, as regards any debt of the business known as (omitted business), Centrelink or any other debt she has incurred whether solely or jointly with the Husband.

4. The Wife be and is hereby declared to be the sole owner at law and in equity of all other property in her possession or control including the business known as (omitted business), her motor vehicle, bank accounts and superannuation.

5. The Husband be and is hereby declared to be the sole owner at law and in equity of all other property in his possession or control including the business known as (omitted business), his motor vehicles and superannuation.

6. Liberty to relist on 7 days’ notice as regards interpretation, implementation or enforcement of these orders.

IT IS NOTED that publication of this judgment under the pseudonym Smythe & Gorrie (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 1261 of 2015

MS SMYTHE

Applicant

And

MR GORRIE

Respondent

REASONS FOR JUDGMENT

Introduction and Background

1. On 19 January 2018 orders were made in the parenting proceedings between the parties, and reasons for judgment were published on the same day as [2018] FCCA 76. The present reasons for judgment deal with the financial aspect of the dispute between the parties. Matters of background, and observations about the hearing, the evidence and credit findings in the earlier judgment are incorporated into the present judgment to the extent relevant.

Competing Proposals

1. The property orders sought by the parties are reproduced in the first schedule to these reasons.  In summary the Wife sought a division of funds held on trust for them as to 70 per cent in her favour.  The Husband sought 55 percent in his favour.  Each raised issues as to the allocation of various debts.

The Applicable Law

1. This is an application under s.79 of the Family Law Act 1975 which relevantly provides:

   Alteration of property interests

   (1)  In property settlement proceedings, the court may make such order as it considers appropriate:

   (a)  in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or

   (b)  in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage--altering the interests of the bankruptcy trustee in the vested bankruptcy property;

   including:

   (c)  an order for a settlement of property in substitution for any interest in the property; and

   (d)  an order requiring:

   (i)  either or both of the parties to the marriage; or

   (ii)  the relevant bankruptcy trustee (if any);

   to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.

   (2)    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.

   (4)    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.

2. Section 79(4) incorporates the provisions contained in s.75(2) of the Act, which states:

   (2)  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.

3. In Bevan & Bevan [2013] FamCAFC 116, the Full Court of the Family Court of Australia considered the High Court’s decision in Stanford & Stanford [2012] HCA 52, which provided guidance on how s.79 was to be interpreted and implemented. Bevan endorsed the continuing application of the four-step approach articulated by the Full Court in Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395, but on the basis that it is a shorthand distillation of the words of s.79, as opposed to being a statutory edict. The four steps articulated in Hickey at paragraph 39 are:

   a)Identify and value the property, liabilities and financial resources of the parties; and

   b)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property; and

   c)Identify and assess the other facts relevant under s.79(4)(d)-(g) including s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and

   d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.

4. The decisions in Stanford and Bevan also emphasise the importance of making findings that any order is just and equitable for the purposes of s.79(2), independent of the s.79(4) process. In most cases, such as the present one, it makes no difference to the outcome of the alteration of property interests exercise. Even if the just and equitable consideration were treated as a threshold issue in this case the parties have, by their actions (separation, and re-ordering of their financial lives since then), and claims (divergent claims about their property under s.79 of the Act), indicated that they themselves consider it just and equitable that some order be made under s.79 adjusting their property interests as presently held. It is clearly just and equitable in this case to make an order.

5. Both decisions also emphasise the importance of identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.  This is not inconsistent with step one in Hickey. 

6. A problem that commonly arises, and indeed does arise in this case, relates to property that once existed but no longer does. This disposed of property may still be significant, however. As the Full Court said in Bevan, such disposals must be dealt with carefully. In practical terms this means carefully assessing the evidence about the disposal, attempting to quantify it if this is at all possible, and then assessing its weight whilst neither placing too much, or too little, weight on it. It would seem that notionally adding back such property may still be appropriate in some cases. In Vass & Vass [2015] FamCAFC 51, the Full Court said at [138]:

   There is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties.  We reject any suggestion that the decision of Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545 – or, more particularly, the decision of the High Court in Stanford & Stanford [2012] HCA 52; (2012) 247 CLR 108 – is authority for any necessary contrary solution.

Balance Sheet

1. The parties presented the following agreed balance sheet on 23 August 2017, which was day 5 of the hearing:

Ownership		Description	Wife / de facto partner’s value	Husband / de facto partner’s value
ASSETS
1.	J	Account at Acorn (see Note 1)	$     141,057.58	$     141,057.58
2.	W	(omitted business) stock	$            7,000	$            7,000
3.	W	(omitted) Mazda motor vehicle	$          11,000	$          11,000
4.	H	(omitted) motor vehicle (purchased post separation, July 2015)	$           13,950	$          13,950
5.	H	Mazda (omitted)	$            1,000	$            1,000
6.	H	(omitted business) (should be treated as joint, business sold October 2014)	$          30,625	$       nil
7.	H	Funds held in Hansons Lawyers Trust Account for Husband’s legal fees	$	$       41,289.76
8.
9.
10.
11.
12.
Total	$     204,632.58	$     215,297.34

ADDBACKS
13.	H	Money paid to husband directly by estate agent on sale of home	$              700	$              700
14.	W	Money removed from (omitted) bank account (omitted), Ms Smythe I/X in lump sum and not otherwise accounted for	$584.00	$           E11,200
15.	W	Money paid to Wife from sale proceeds	$            12,000	$           12,000
16.	H	Monies drawn by husband from the joint account (drawn from the sale proceeds)	$           17,500	$           17,500
17.	H	Monies in Husband’s account at separation	$            8,000	$

Total $          38,784 $          41,400

LIABILITIES
18.	H	(omitted) Finance (Husband’s car purchased post separation)	$       7,359.32	$       7,359.32
19.	H	ATO Personal Integrated Tax Account (2015/2016) (not conceded as joint)	$	$
20.	J	ATO debt arising from BAS returns and Husband’s personal tax to 30 March 2015 (prior to separation) plus interest and charges incurred to date for this liability (*see below)	$	$
21.	H	ATO debt Personal income tax (*see note below)	$	$
22.	H	ATO total tax outstanding for years 2014/2015 and 2015/2016 for personal tax and BAS (total tax outstanding as at April 2015 was $41,625.98, total personal tax outstanding $51,013.94 plus interest and fees)	$	$     100,772.34
23.	J	Outstanding Centrelink Overpayments	$                 0	$                 0
24.	J	Tax outstanding 2013/2014	$                 0	$
25.	J	Loan from Husband’s Parents	$                 0	$        17,500.00
26.	J	(omitted) Mastercard (post separation)	$                 0	$          7,221.84
27.	H	(omitted) Mastercard (post separation)	$                 0	$          5,673.00
28.	J	(business omitted)	$                 0	$          6,445.85
29.	H	Legal costs owing to date	$	$        68,400.00
30.	H	Loan from (omitted) for Husband’s legal fees	$	$        48,360.54
31.	W	Legal costs owing to date	$     90,000.00	$
32.	J	Costs for Dr M, expert, to be cross examined on 23 August 2017 to be paid from the funds at item 1	$          E1,280	$          E1,280

Total $     98,639.32 $     263,012.89

SUPERANNUATION
Member		Name of Fund	Type of Interest	Wife / de facto partner’s value	Husband / de facto partner’s value
33.	W	(omitted) Super	$     29,929.51	$         NK
34.	H	(omitted) Super	$     64,022.63	$     63,851.99

Total $        E94,000 $        E94,000

1. As is apparent from the balance sheet, the pool of assets is not substantial and one wonders whether a substantial part of it will be applied towards legal fees.  The major asset represents the sale proceeds of the former matrimonial home, bearing in mind that some amounts were paid directly to the parties.  These amounts represented the agreed add-backs at items 15 and 16.

2. Quite a few issues require determination in relation to the balance sheet. The first item of contention is item 6 - the value attributed to the (omitted business) business. The evidence indicates that the Husband sold the business taking vendor finance and security over the equipment. The purchaser fell into default. The Husband has done nothing to seek to recover the unpaid amount, nor to enforce the security he has. The Court finds it incomprehensible that he should fail to do so, particularly given the pending property proceedings.

3. His proposal was, in effect, that if he can recover the money, it will be shared with the Wife, consistent with any percentage split imposed by these orders. On behalf of the Wife, concern is raised about the potential costs of recovery being very high, the prospects being unknown and that if the Husband really wanted to recover he would have done so before now. The Court agrees.

4. The business was sold in October 2014, over three years ago.  It is incomprehensible that he did nothing to recover the money or even mitigate his loss.  The asset should appear on the balance sheet, at the value attributed, but it will be treated as the Husband’s notional asset.

5. There was agreement that item 4 - the Husband's (vehicle omitted) vehicle purchased after separation - should be taken off the balance sheet for adjustment purposes.  It would follow that item 18, the corresponding debt, should also be removed.

6. It was conceded that item 7 should not appear on the balance sheet and the corresponding liability at item 30 likewise should not appear. 

7. There is a dispute about items 13 to 16.  Item 13 should be added back. The money in question represented sale proceeds of the home. The mere fact that the Husband might have been meeting some of the Wife and children’s living expenses, as well as his own, does not change the situation. It was a premature distribution of matrimonial assets. It should be treated as the Husband’s notional property.

8. Item 14 should likewise be retained on the balance sheet. The impression created from the evidence is that the Wife treated the account in which she held moneys in trust for X, as if they were her own moneys. The contention that she could not properly account for these funds has been made out.

1. It was incumbent on the Wife to provide transparency to the Court about this account, what it was used for and who controlled it.  The Court is not satisfied that she has discharged the responsibility that was on her.  It should be treated, therefore, as notional property to the value of $11,200.  It is probably more, but the only evidence before the Court is of the withdrawal of $11,200 in mid-2016.

2. The add-backs at items 15 and 16 are agreed.  The proposed add-back at what was item 17 was not pressed.

3. Items 19 to 22 inclusive are tax owed by the Husband. The tax arose from the operation of the Husband’s (omitted) business. The liability apparently totals $100,000 but the Wife only concedes $41,000 of that should come onto the balance sheet and be a liability that she should share. The Wife then withdrew her proposal to share $41,000 of the liability. In any event, the Court finds that item 19 should be treated, for balance sheet purposes, as a liability of the Husband, in the sum of $41,000.

4. Even if the liability is greater (and it probably is), there is no evidence to satisfy the Court as to an explanation for why the debt has not been paid by now.  The most obvious hypothesis is that the Husband diverted his funds towards these proceedings.  Be that as it may, given the character of so much of the debt as being interest and penalties for non-payment, there is no reason why the Wife should bear the burden in this regard, beyond the $41,000.  Indeed, the $41,000 represents the outstanding tax, the remainder being interest and statutory charges.

5. The next contentious item is item 25, being a loan from the Husband’s mother.  The Wife agrees that it remains unpaid.  The evidence suggests that the Husband wanted the money repaid to his mother from the sale proceeds of the former matrimonial home.  At that time, the Husband prioritised other things.  As much as this may have annoyed the Wife, the fact is that it is a conceded debt that needs to be repaid and hence the liability will remain as stated.

6. Items 26 and 27, being post-separation debt, were not pressed.

7. The parties agreed that items 29 and 31 were not pressed.

8. The parties agreed that they owe (business omitted) $7124.70.  That item should remain.  The parties agree that Dr M was owed $1,280 as represented at item 20.

9. The values in relation to superannuation are conceded by both parties. 

10. Having regard to these rulings, the balance sheet will be as follows:

ASSETS
1.	Account at Acorn	$   141,057.58
2.	(omitted business) stock	$            7,000
3.	Mazda motor vehicle	$          11,000
4.	Mazda (omitted)	$            1,000
5.	Husband's (omitted business) (sold October 2014)	$          30,625
TOTAL:		$190,682.58

ADDBACKS
6.	Husband’s Money paid to husband directly by estate agent on sale of home	$               700
7.	Money removed by the Wife from (omitted) bank account (omitted) Ms Smythe I/X in lump sum and not otherwise accounted for	$          11,200
8.	Money paid to Wife from sale proceeds	$           12,000
9.	Monies drawn by husband from the joint account (drawn from the sale proceeds)	$           17,500
TOTAL:		$41,400.00

LIABILITIES
10.	ATO Personal Integrated Tax Account (2015/2016)	$
11.	ATO debt arising from BAS returns and Husband’s personal tax to 30 March 2015 (prior to separation) plus interest and charges incurred to date for this liability	$
12.	ATO debt Personal income tax	$
13.	ATO total tax outstanding for years 2014/2015 and 2015/2016 for personal tax and BAS (Husband)	$          41,000
14.	Outstanding Centrelink Overpayments	$                   0
15.	Tax outstanding 2013/2014	$                  0
16.	Loan from Husband’s Parents (joint)	$     17,500.00
17.	(business omitted)	$      7,124.70
18.	Costs for Dr M, expert, to be cross examined on 23 August 2017 to be paid from the funds at item 1	$            1,280
TOTAL:		$ -66,904.70
TOTAL NET NON-SUPERANNUATION ASSETS:		$165,177.88

SUPERANNUATION
19.	Wife's (omitted) Super	$     29,929.51
20.	Husband's (omitted) Super	$     64,022.63
TOTAL:		$93,952.14
TOTAL NET ASSETS INCLUDING SUPERANNUTION:		$259,130.02

Contribution and Future Needs

1. In closing submissions, the Wife pressed her claim to 70 per cent. She asserted that contributions should be assessed as to 55 per cent in her favour, due to greater initial contribution. The balance would be a 15 per cent s.75(2) adjustment in her favour, to reflect the disparity in their earning capacities, and her contention that the children would be in her care.

2. The Husband contended that an overall assessment under s.79 and 75(2) would be 50:50. He disputes that the Wife made a greater contribution at the date of cohabitation but says that even if she did, his post-separation financial contribution would more than adequately make up for that. In this regard, he points to him carrying the burden of the post-separation living expenses for the family for a considerable time, with the Wife having the benefit of occupation of the former matrimonial home.

3. The Court finds that the Wife probably did make a greater financial contribution at cohabitation.  She says it was $225,000, whereas, the Husband had $70,000.  He says that he had about $100,000, and that, in fact, the Wife would have had no more than about $150,000, given the debt that she owed to her brother.

4. The Court found the Husband to be an unreliable historian of financial matters. He conceded in cross-examination that he was not good with numbers. Nonetheless, his point about the debt the Wife owed to her brother was correct.

5. The Court finds that the Wife did make a greater financial contribution at cohabitation or thereabouts, but not on the figure she asserts.  Nonetheless the Court is comfortably satisfied that the evidence before it leads to a finding of 55:45 contribution in her favour at cohabitation.  Nothing occurred during cohabitation that would displace this finding, as they each contributed in different ways but equally.  The Court does not accept the Husband’s contention of post-separation contribution.  He merely did what he was supposed to do in supporting his family post-separation in circumstances where his financial circumstances were stronger, and the Wife and children’s circumstances were needier.

6. Looking to the future, the Husband will bear the majority of the costs of caring for these children. Given the income disparity between the parents and the Wife’s relatively low income, it is unlikely that any child support payable will be a significant contribution towards their living costs. Whilst it is true, therefore, that he does have a significantly higher income than the Wife, this is offset by the financial responsibilities that he will have. In any event, the Court does have some concerns that it has not been fully appraised of the true financial status of the Wife. It is possible that she is earning more from her (omitted business) business than she told the Court.

7. Having regard to the above, the Wife’s claim to an adjustment of 15 per cent in her favour is without foundation.  The Husband’s claim for an adjustment that results in the division of property equally is however, appropriate.  It is in any event only 5 per cent.  The Court notes that both parties have substantial liabilities for legal costs.

Just and Equitable Order?

1. The justice and equity of a 50:50 settlement needs to be explored in terms of its implementation. 

2. The Husband did not seek a splitting order in relation to superannuation, but the Wife did.

3. The largest tangible asset is the money held in trust with Acorn Lawyers.  The debts to the Husband’s parents ($17,500), (business omitted) ($7,124.70) and Dr M ($1,280) should be paid first, thus reducing that fund to $115,152.88.

4. The assets and liabilities left to the parties pursuant to these reasons for judgment are as follows:

Husband	Wife
½ Acorn:	57,576.44	57,576.44
1,000	(Mazda (omitted))	7,000	((omitted business))
30,625	((omitted business))	11,000	(Mazda)
700	(addback)	11,200	(addback)
17,500	(draw-down)	12,000	(draw-down)
(41,000)	(taxation)	29,929.51	(super)
64,022.63	(super)
TOTAL:	$130,424.07	$128,705.95

1. The difference between the parties is $1,718.12.  In order to achieve equality, the Husband should receive $859.06 less and the Wife $859.06 correspondingly more, from the Acorn trust account.  They each thus get $129,565.01.

2. The Court sees no basis for a superannuation split in this case, especially as both parties will be responsible for substantial legal costs arising out of this case.

3. The Court believes that this result is as just and equitable as the circumstances and evidence allows.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:  16 February 2018

Schedule 1

Property Orders sought by the Applicant

1.       That the Mother and the Father do all such things and sign all such documents so as to cause the monies held on behalf of the Husband with Acorn Lawyers (“Sale Proceeds”) to be dispersed 70% to the Mother and 30% to the Father.

2.       The Mother and the Father are to each be solely entitled to the following property: 

2.1         all personal property now in his/her respective possession or control;

2.2        all shares, debentures, units in unit trusts, bank, building society, credit  union accounts outstanding in his/her sole name respectively; and

2.3        all interest in life insurance policies and superannuation funds standing in his/her sole name.

3.       Unless otherwise expressly stated in these Orders, each party is liable for the payment of any debt incurred in their sole name or jointly with any other person or encumbering any property retained by the party in accordance with these orders and is to indemnify and keep indemnified the other party in relation thereto.

4.       The Father is to indemnify and keep indemnified the Mother with respect to any liability including, but not limited to taxation liabilities in respect of the business known as ‘(omitted business)’ and any liability to the husband’s mother Ms C.

5.       The Mother is declared the sole owner of the business ‘(omitted business)’ and is to indemnify and keep indemnified the Father with respect to any such liability in respect of the business. 

6.6.1        That the base amount allocated to the Mother the non-member spouse in these proceedings out of the interest held by the Father in (omitted) Super Fund is $15,000.00.

6.2 That pursuant to paragraph 90MT(1)(a) Family Law Act 1975, whenever the Trustee of the (omitted) Super Fund makes a splittable payment from the interest held by the Father member no. (omitted) the Trustee shall pay to the Mother or her legal personal representative the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount allocated in Order 8.1 and there shall be a corresponding reduction in the entitlement the Father would have had in (omitted) Super Fund but for these Orders.

6.3       That Order 6.2 have effect from the operative time and the operative time shall be 4 business days from the date when these Orders are served upon the Trustee.

6.4       That this Order binds the Trustee of (omitted) Super.

7.       Each party is to do all things necessary to give effect to these orders in the time periods prescribed therein. 

8.       If either party refuses or neglects to execute any deed, document or instrument to give effect to these orders, the Registrar of the court shall be appointed pursuant to section 106A of the 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 authorisation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.

9.       The party in default of these orders is to pay all reasonable solicitor/client costs incurred by the other party for the purpose of enforcing these orders with the amount payable to be in accordance with the Family Law Rules unless otherwise agreed to between the parties.

Property Orders Sought by the Respondent

1.That the Court make Orders that provide for the Husband to retain 55% of the global assets as follows;

2.That within seven (7) days Acorn Lawyers are authorised to distribute funds held in trust for Mr P as follows;

(a)The sum of $ 6,057.13 to Centrelink

(b)   The sum of $ 41,625.98 to the Australian Taxation Office

(c)   The sum of $ 1,600.00 to (omitted) MasterCard

(d)   The sum of $ 4,543.00 to (omitted) MasterCard

(e)   The sum of $ 17,500 payable to Ms C

(f)   The balance ($85,801.60) be divided as follows;

(i) 60% to the Husband to be payable to Hansons Lawyers
         (ii) the balance to the Wife to be payable to Nikolovski Lawyers.

3.That the Husband shall indemnify the Wife with respect to all other liabilities in his sole name.

4.That thereafter the parties shall retain all other assets and liabilities in their sole name including their superannuation interests.