Spence & Spence

[2008] FamCA 263

FAMILY COURT OF AUSTRALIA

SPENCE & SPENCE;
F PTY LTD & SPENCE [2008] FamCA 263

FAMILY LAW – PRACTICE AND PROCEDURE – Review of exercise of power by Judicial Registrar – hearing de novo – property settlement – husband and wife self-represented – unsatisfactory evidence of parties – contributions – wife sought additional contribution of 15% due to domestic violence by husband – consideration of principles in Kennon and Kennon (1997) FLC 92-757 – no evidence to establish link between any violence and impact on wife’s contribution – contributions assessed 55%/45% (non-superannuation assets) and 70%/30% (superannuation) in husband’s favour – stronger financial position of husband – benefit to wife of living in former matrimonial home since separation – consideration of proposed spousal maintenance order – 7.5% adjustment in favour of wife due to s 75(2) factors.

FAMILY LAW – SPOUSAL MAINTENANCE – application by wife seeking lump sum payment of past spousal maintenance from date of separation and spousal maintenance for next two years – spousal maintenance intended to meet immediate and future needs of party – application for past spousal maintenance dismissed summarily – wife unable to support herself adequately – threshold test met – husband to pay spousal maintenance for two years.

FAMILY LAW – ORDERS – REVIEW – wife sought review of order with respect to costs of valuations – no further evidence – no basis to alter order of Judicial Registrar – application dismissed.

FAMILY LAW – ORDERS – REVIEW – husband sought delivery up of certain items of personalty – following mediation, indicated no longer pursuing application – application struck out and dismissed – whether review open to husband – exercise of delegated powers by Judicial Registrar – application validly before judge – husband to have items of personalty.

FAMILY LAW – COSTS – application by wife’s former solicitor seeking to enforce payment of costs as determined by Certificate of Taxation in 2003 and interest – opposed by wife – claims solicitor did not do the work or did so incompetently – solicitor entitled to enforce payment and to receive interest pursuant to Rules – payment to be made out of money due to wife pursuant to property settlement.

Family Law Act 1975 (Cth) ss 72, 74, 75 & 79

Pierce and Pierce (1999) FLC 92-844
Kennon and Kennon (1997) FLC 92-757
Bailey and Bailey (1978) FLC 90-424
Hauff and Hauff (1986) FLC 91-747
Lalor and Lalor (1990) FLC 92-164
Clauson and Clauson (1995) FLC 92-595
Jones and Casswell (1993) FLC 92-364
Twigg and Twigg v Keady and Keady (1996) FLC 92-712
Eager and Eager (1997) FLC 93-781
Molier and Van Wyk (1980) FLC 90-911

APPLICANT (1): Mrs Spence

RESPONDENT (1): Mr Spence

APPLICANT (2): F Pty Ltd

RESPONDENT (2): Mrs Spence

FILE NUMBER: ADF 3013 of 1999

DATE DELIVERED: 26 March 2008

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATES: 23-25 July 2007
30-31 July 2007
1-2 August 2007
4 September 2007

REPRESENTATION

COUNSEL FOR APPLICANT (1): In person

COUNSEL FOR RESPONDENT (1): In person

COUNSEL FOR APPLICANT (2): Mr G Holland

SOLICITOR FOR THE APPLICANT (2): Ms F

COUNSEL FOR RESPONDENT (2): In person

Orders

1. That the Amended Application in a Case filed by the wife on 4 December 2006 seeking a review be allowed.

2. That within six [6] weeks of the date hereof the husband do pay to the wife the sum of TWENTY-SEVEN THOUSAND ONE HUNDRED AND NINETY ONE DOLLARS AND SIXTEEN CENTS [$27,191.16] being the amount of THIRTY FOUR THOUSAND SEVEN HUNDRED AND SIXTEEN DOLLARS [$34,716.00] less the amount of SEVEN THOUSAND FIVE HUNDRED AND TWENTY FOUR DOLLARS AND EIGHTY FOUR CENTS [$7,524.84], which is to be paid by the husband on behalf of the wife to F Pty Ltd in accordance with paragraphs (7) and (8) hereof.

3. That contemporaneously with the said payment, at the cost of the wife in all things, the husband do transfer to the wife all that his estate and interest in the property situated at R in the State of South Australia and being all of the land comprised and described in Certificate of Title Register Book Volume … Folio ….

4. That the wife pay and discharge all mortgage repayments, rates and taxes and other assessments of whatsoever nature payable in relation to the said house property to the exoneration of the husband and the wife do indemnify the husband and keep him indemnified against and in relation to all such payments.

5. That forthwith the wife do pay to the adult child R Spence born on … July 1987:

   (a)    The sum of EIGHT THOUSAND TWO HUNDRED AND SIXTEEN DOLLARS AND SEVEN CENTS [$8,216.07] being the amount held in the wife’s name as trustee for the said adult child in account number … at the Commonwealth Bank together with all interest accrued thereon to date or if the wife has withdrawn any of the said amount since 1 January 2007, the interest which would have been accrued if all of the said principal amount had remained in that account subsequent to 1 January 2007;

   (b)    The sum of ONE THOUSAND ONE HUNDRED AND FORTY-FOUR DOLLARS AND SIXTEEN CENTS [$1,144.16] being the amount held in the wife’s name as trustee for the said adult child in a Commonwealth Life Family Bond policy or account number … at the Commonwealth Bank together with all interest accrued thereon to date or if the wife has withdrawn any of the said amount since 1 January 2007, the interest which would have been accrued if all of the said principal amount had remained in that account subsequent to 1 January 2007.

6. That forthwith the husband do pay to the said adult child R Spence and to the adult child E Spence born … November 1983 all monies held by him in trust for either of the said adult children.

7. That the sum of SIX THOUSAND SIX HUNDRED AND TWENTY-EIGHT DOLLARS AND SEVENTY-THREE CENTS [$6,628.73] paid by the husband and held by the Family Court of Australia pursuant to paragraph 8 of the order made by Judicial Registrar Forbes on 13 October 2006 be paid forthwith to F Pty Ltd in part-settlement of monies due by the wife to F Pty Ltd pursuant to Certificate of Taxation dated 14 August 2003.

8. That forthwith the husband do pay the sum of EIGHT HUNDRED AND EIGHTY DOLLARS AND THIRTY-NINE CENTS [$880.39] to F Pty Ltd on behalf of the wife in further and full satisfaction of the wife’s liability pursuant to the said Certificate of Taxation.

9. That the Application in a Case filed by the husband on 27 October 2006 seeking a review be allowed and the husband do attend at the former matrimonial home at R at a time during daylight hours to be nominated by the wife in writing within the next twenty-eight [28] days in the presence of an adult person nominated by the wife and at the option of the husband an adult person nominated by the husband, and at that time the wife make available and the husband collect and remove from the said property all of the items of personalty set out in Annexures “A” and “B” hereto.

10. That the Application in a Case filed by the wife on 23 November 2006 seeking a review be dismissed, but paragraph 3 of the order made by Judicial Registrar Forbes on 27 October 2006 be varied to provide as follows:

    “That the amounts to be paid as set out in paragraphs 1 and 2 of this order be paid by the wife within ten [10] days of receipt of the monies due to her pursuant to paragraph (2) of the orders made on 26 March 2008.”

11. That each party do otherwise retain for their sole use, enjoyment and benefit all items of real estate held in their respective names, all items of personalty that they each now have including but not limited to furniture, household effects, motor vehicles, tools and equipment, savings and investments, superannuation entitlements, life insurance and any other item, benefit or entitlement that they may respectively hold in their names or have in their possession or control free from any claim, right, interest, or entitlement of the other of them.

12. That the husband pay the sum of ONE HUNDRED DOLLARS [$100.00] per week towards the maintenance of the wife for a period of two [2] years from the date of this order with the first payment to be made on Wednesday 2 April 2008 and weekly thereafter.

13. That the parties do all such things and sign all such documents as may be necessary to give full force and effect to these orders.

14. That in the event of the husband failing to comply with paragraph (2) hereof then the husband’s house property at C in the said State be sold forthwith upon such terms and conditions as the parties may agree and in default of agreement as determined by this Honourable Court, and from the net proceeds of sale the wife receive such sum as shall then be outstanding pursuant to paragraph (2) hereof together with interest thereon calculated at the rate fixed by the Family Law Rules 2004, and the husband receive the balance.

15. If either the husband or the wife shall refuse or neglect to execute any document necessary to give effect to the terms of this order within seven [7] days after the same shall have been tendered to him or her for that purpose then and in such case a Registrar or a Deputy Registrar of the Family Court upon proof by affidavit of such refusal or neglect is hereby appointed to execute on behalf of either party hereto and if in his or her opinion it shall be necessary so to do to settle the same and to do all such other acts and things and execute all such other documents as shall be necessary to give full force and effect hereto and shall execute and do the same accordingly.

16. That the Application in a Case filed by the wife on 23 July 2007 be dismissed and removed from the active pending cases list.

17. That the Amended Application in a Case filed by the wife on 4 December 2006 be removed from the active pending cases list.

18. That the Application in a Case filed by the husband on 27 October 2006 be removed from the active pending cases list.

19. That the Response filed by the husband on 26 March 2007 be dismissed and removed from the active pending cases list.

20. That the Application in a Case and the Amended Application in a Case filed by F Pty Ltd on 9 August 2005 and 1 August 2007 respectively be dismissed and removed from the active pending cases list.

21. That the Response filed by the wife on 3 September 2007 be dismissed and removed from the active pending cases list.

22. That the Applications in a Case filed by the wife on 5 March 2007 and 23 April 2007 be dismissed and removed from the active pending cases list.

23. That all other Applications and Responses filed by either party or by F Pty Ltd be dismissed and removed from the active pending cases list.

24. That the orders made by the Honourable Justice Dawe on 4 December 2006 be discharged.

25. That each party have liberty to apply in relation to the orders for property settlement.

IT IS NOTED that publication of this judgment under the pseudonym Spence & Spence; F Pty Ltd & Spence is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

ANNEXURE “A”

A complete set ‘Sidchrome’ A F and metric spanners & sockets
1 x set inferior spanners
3 x battery drills
2 x battery screwdrivers
4 x electric drills
1 pedestal 12 speed 5/8” chuck drill pressure pump
1 x ‘Skill’ 185mm circular saw
1 x large ‘Black & Decker’ angle grinder
2 x small 4” angle grinders – 1 ‘Hitachi’, 1 ‘Ryobi’
1 x ‘Skill’ jigsaw
2 x wood routers – 1 ‘Skill’, 1 ‘Elu’
1 x ‘Black & Decker’ mitresaw
2 x orbital sanders – 1 ‘Black & Decker’, 1 ‘Skill’
1 x ‘EMCO’ metal thread cutting & turning lathe with acc, 4” long
1 x Adelaide School of Mines lathe 9’ long
1 x 11 cubic foot air compressor
1 x ‘Vane’ electronic tune-up machine with accessories
1 x ‘Ryobi’ wood lathe 4’ long

1 x bandsaw, (home made); 1x power hacksaw machine; 1x ‘WIA’ arc welder; 2x Stanley’ screwdriver sets; 1x air drill; 1x air wrench; 1x air ratchet wrench; 1x air chisel; 1x air jigsaw; 1x air sandblasting gun; 3x soldering irons; 4x puller sets; 4x wood saws; 6x hammers; 2x hand held tune-up kits; 7x auto paint spray guns – 4 ‘CIG’ beta & 3 others

Various panel beating tools
1 x chain winch & wire ropes
1 x bench grinder

Various other threading, cutting & drilling bits; quantity metal & vehicle body files; various woodworking & metal tools; quantity drills, wood chisels, pliers, shifters stone sharpeners, tapes, spanners, rulers, vice grips, hot melt glue guns, pipe cutters, squares, spray gun cleaning accessories, metal folding press, router bits etc

Various engine rebuilding tools and accessories
1 x bench press with barbells and dumbbells
3 x work benches
3 x metal and 1x wood working vices
Oxy acetylene welding and cutting set
Quantity cabinets and tool boxes
Quantity floor jacks and stands
Quantity fishing rods and tackle
2 x go-carts with motors, wheels & accessories
1 x ‘Yeoman’ ride-on lawn mower
1 x whipper snipper
1 x pinball machine
2 x complete model aeroplane radio control units;

9 x complete & incomplete model aeroplanes; accessories; starters; plans; 8x model aeroplane engines; wheels; balsa wood & accessories

1 x ‘Phillips’ B & W Television set

ANNEXURE “B”

1. Mazda 13B turbo motor and gearbox with computer  $100.00

2. Mazda 10A rotary original motor for RX3  $50.00

3. Mazda dismantled with spares, partially painted  $500.00

4. Mazda 12A rotary motor and gearbox to suit RX7  $150.00

5. 2 x trolley/sack trucks  $10.00

6. Suzuki trail motor bike  $200.00

7. Quantity wood, metal fixing accessories, nails, bolts, screws  $50.00

8. Quantity electronic components – capacities, transistors, resisters               $50.00

9. Quantity electrical switches, plugs, multimeters, bearings, fittings, etc           $5.00

10. Timber boat with 25HP Evinrude motor with accessories  $350.00

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 3013 of 1999

MRS SPENCE

Applicant (1)

And

MR SPENCE

Respondent (1)

F PTY LTD

Applicant (2)

And

MRS SPENCE

Respondent (2)

REASONS FOR JUDGMENT

Introduction

1. I have before me for determination applications by both the husband and wife seeking to review exercises of power by Judicial Registrar Forbes.  I also have before me an application by Ms F, the wife’s former solicitor, in relation to payment of costs by the wife.

2. The relevant applications seeking review are the wife’s Amended Application in a Case filed on 4 December 2006 seeking review of the orders made by Judicial Registrar Forbes on 13 October 2006 with respect to property settlement, the wife’s Application in a Case filed on 23 November 2006 seeking a review of orders made by Judicial Registrar Forbes on 27 October 2006 and the husband’s Application in a Case filed on 27 October 2006 seeking a review of what the husband describes as, “an order with regards to contents of sheds, which was made after I had decided to forgo all items seeked [sic] in the sheds”, and which also relates to the orders made by Judicial Registrar Forbes on 13 October 2006. 

3. On 26 March 2007 the husband filed a Response to an Application in a Case seeking, inter alia, dismissal of the wife’s applications seeking the review of orders made by the Judicial Registrar on 13 October 2006 and 27 October 2006. Although this in effect entailed the husband seeking to maintain the Judicial Registrar’s orders as to property settlement, when it came to his final submissions the husband sought in particular to fix different percentage divisions for the respective contributions of the parties and for the relevant Section 75(2) factors with the result inevitably being different orders than the orders made by the Judicial Registrar. I allowed the husband to pursue this in the context of the wife’s application for review because that application in effect opened up the issue of property settlement again.

4. On 23 July 2007 the wife filed an Amended Application for Final Orders outlining the orders she sought apart from in relation to the payment of valuation fees, namely:

   “1That in full and final settlement of all claims for property settlement and spousal maintenance that either party may have against the other

   1.1That the husband do pay the wife sixty five percent (65%) of the net assets (including bank accounts) and resources of the parties or either of them which include the husband’s

   (a)superannuation entitlement (inclusive of AMP, Spectrum Super and Zurich Australia);

   (b)redundancy payments;

   (c) rollover fund (Spectrum Super)

   (d)any retirement benefit (inclusive of early retirement);

   (e) Accrued Long Service Leave and holiday pay; and

   (f)  Salary fringe benefits and negative contributions should be included in the Asset of Pool distribution, when considered should be apportioned to the wife to include the post-separation (to current date should be included in the Assets of Pool estimate) subject at all times to the specific terms of this order.

   1.2That the wife do retain as her sole property, the former matrimonial home and all its fixtures (sheds) and contents (chattels) situate at [R], in the State of South Australia, including all furniture and personal effects, her motor vehicle, caravan, her savings, investments and superannuation entitlements free from all claim and demand by the husband.

   2That contemporaneously with the payment of the abovementioned, the Husband do deliver up to the wife a properly registerable [sic] Memorandum of Transfer as to the whole of his estate and interest in the property at [R] in the State of South Australia being all the land comprised and described in Certificate of Title Register Book Volume 5482 Folio 136, and the husband do pay for the transfer costs.

   3That the Husband do retain as his sole property, the home and contents situated at [C] in the State of South Australia, being the whole land comprised and described in Certificate of Title Register Book Volume […] Folio […].

   4That the wife do pay the adult child, [R Spence], born on […] July 1987, the following trust account: Commonwealth Interest Term Deposit Account […] (approx. $8,000 as at 20/07/07)

   5That the husband do pay the adult child, [R Spence], born … July 1987, the following trust accounts:

   (a)National Bank of Australia in the sum of $6,237 as at 4 October 2005, and

   (b)National Bank of Australia in the sum of $10,441 as at 30 May 2004.

   6That the husband do pay spousal maintenance in the sum of $150.00 per week for nine (9) years (1998-2007) which totals $70,200.00, under section 72 1A and 1B and section 75 of the Family Law Act 1975.

   7I seek that the husband do pay a further 2 years of spousal maintenance for negative contribution, to the sum of $150.00 per week to recover my health and appropriate gainful employment under section 72 and section 75 of the Family Law Act 1975.

   8That the Restraint Order dated 27^th July 2000 remain on the daughter [E Spence], for her protection.

   9That the Restraint dated 23 April 2007 remain as per Order No. 12 of Orders dated 23^rd April 2007 before the Honourable Justice Dawe, “that the husband is restrained and an injunction is granted restraining him from sending correspondance [sic] to the wife which is threatening or abusive”.

   10I further seek an order that the husband is restrained from verbally abusing the wife and through a third party.

   11That the judgement [sic] in relation to [Ms F] be set aside as the counter-claim for negligence in the Magistrates Court is pending hearing.

   12That the husband do pay the wife’s costs of and incidental to this application.

   13That the husband do indemnify the wife and keep her forever indemnified with respect to all related property settlement, spousal maintenance and children’s matters.

   14I seek an order that the husband does not denigrate, verbally, physically, mentally or write or discuss the wife or the said daughter ([E Spence]) to any other person(s).

   15That the Mutual Community do remain for the wife and daughter, [E Spence], until she ceases full-time University Studies or gains full-time employment.

   16Such further or other order(s) as the Honourable Court deems fit.”

   In relation to the payment of valuation fees I will deal with that issue later in these reasons.

1. By agreement with the husband I treated this application as in effect the wife’s Application in a Case setting out the final orders she sought on review.

2. On 23 July 2007 I dismissed paragraph 1 of the wife’s Application insofar as it related to spousal maintenance and paragraphs 8, 11 and 13. On 1 August 2007 I dismissed paragraph 9 of the wife’s application and paragraph 15, insofar as it related to the parties’ daughter E.

3. In the course of final submissions the husband consented to orders in terms of paragraphs 4 and 5 of the wife’s application.

4. In relation to the husband’s Application seeking a Review of the Judicial Registrar’s exercise of power in respect of items of personalty, the husband sought that he be entitled to have the contents of the shed at the former matrimonial home identified in Attachment “A” to the reasons for judgment delivered by the Judicial Registrar on 22 September 2006, and some of the  items set out under the heading “valuations of vehicles and equipment” in the valuation of Mr Rdated 19 July 2006 (Exhibit 35 before the Judicial Registrar), and which items save and except the Mazda RX3 motor vehicle which the husband already has, were also situated at the former matrimonial home.

5. The wife opposed the husband having these items and her position was that she would retain them with the husband being credited with their value.

6. With respect to the costs issue, Ms F filed an Amended Application in a Case on 1 August 2007 seeking the following orders:

   “1Costs

   2That this application be heard contemporaneously with the trial of the property settlement proceedings.

   3That [F] Pty Ltd be granted leave to intervene in these proceedings.

   4That until further order an injunction be granted restraining the husband and the wife or either of them from transferring assigning disposing of [sic] encumbering or in any way dealing with any of their joint or respective assets including but not limited to the property known as Allotment  116 and 117 […] in the area named [H] being the whole of the land comprised in Certificate of Title Register Book Volume […]Folio […].

   5That the wife do pay to [F] Pty Ltd the monies due pursuant to allocatur dated 14^th August 2003 (the judgment sum) plus interest prior to any property division between the wife and the husband.

   6In the alternative to 3 the parties or either of them pay the judgment sum plus interest to [F] Pty Ltd from any monies due or payable to the wife by way of property settlement.”

7. However at the time of the hearing, Ms F sought the following orders:

   “1.That the sum of $6,628.73 paid by the husband to the wife’s credit into a Trust Account held by the Family Court of Australia pursuant to the orders of Judicial Registrar Forbes dated 13^th October 2006 be paid to [F] Pty Ltd for and on behalf of the wife in part settlement of monies due by the wife to [F] Pty Ltd pursuant to Certificate of Taxation dated 14^th August 2007.

   2.That any monies that the husband is to pay to the wife by way of settlement of property settlement the sum of $523.18 be paid to [F] Pty Ltd for and on behalf the wife in further and full satisfaction of the wife’s liability pursuant to the said Certificate of Taxation.

   3.That in the event that the wife receives no monies from the husband by way of property settlement that the wife do pay the said sum of $528.18 to [F] Pty Ltd in further and full satisfaction of the wife’s liability pursuant to the said Certificate of Taxation.”

8. On 3 September 2007 the wife filed a response to Ms F’s Amended Application in a Case filed on 1 August 2007 seeking the following orders:

   “1Costs

   2I seek an Order to oppose all costs of [Ms F] and any of her Associated Companies, in relation to these proceedings.

   3I seek an Order that [Ms F’s] Order No 2 be dismissed as she has continually been heard contemporaneously at the trial of property settlement proceedings, when she should have been only in attendance at the finalization of the Trial, which had been previously agrreed [sic] by her Councel [sic] and herself as Court Orderd [sic] by Judicial Registrar Forbes and the Honourable Justice Strickland.

   4I seek an Order that No 3 be dismissed on the basis that the Applicant [Ms F] (and any of her associated companies) have been granted leave on numerous previous occasions and intervened, and sometimes without my knowledge.

   5I seek an Order that the Order (No 4) sought by [Ms F] be dismissed.  As previously the Enforcement Summons have been accepted in the Honourable Family Court.

   6I seek an Order that the Order (No 5) be dismissed as I had disputed the Bill of costs and the Allocatour dated 14^th August 2003 as this action has been previously dismissed in the Family Court.

   7I seek an order that the Order (No 6) be dismissed as [Ms F] refused my offer to finalize this matter prior to the Dispute of Bill of Costs being finalized.

   8I seek an order that [Ms F] attend as a witness.

   9I seek an Order that the Husband be advised of the hearing as he has an interest in the property at [R] and all assetts [sic] of both myself and/or the husband.

   10I seek an order that [Ms F] remove from the Magistrate Court the Judgment dated the 22^nd September 2006 in relation to property settlement in the Family Court between the Husband and wife, as this Judgment was not relevant.

   11I seek an order that the action taken against me by [F] Pty Ltd be dismissed.  This is an abuse of process as [F] Pty Ltd had this matter being dealt with in both the Family Court and the Magistrate Court simultaneously.  The same matter has been duplicated in both courts [sic].

   12I seek an order to set aside the costs agreement in the Family Court.”

1. I should mention that although there was a formal order made by Judicial Registrar Forbes on 13 October 2006 adjourning the claim by F Pty Ltd to a date to be fixed pending determination of the proceedings in the Adelaide Magistrates Court, all parties agreed that the matter should be finally heard by me and not re-listed before the Judicial Registrar.

Factual Background

1. The husband was born in May 1953 and is now aged 54 years.

2. The wife was born in July 1959 and is now aged 48 years.

3. The parties married in April 1977.  At the time of their marriage the wife was working in office administration.  The husband worked in the hospitality industry.  The wife states she worked part time at three establishments owned by the husband’s parents, for no remuneration.  The husband says that he too worked in his parents’ business on week nights and on weekends, and he also worked as a wine waiter.

4. In 1978 the wife commenced full time employment as a clerk and a receptionist.

5. The parties lived in rental accommodation for the first two years of their marriage before purchasing the former matrimonial home at R in 1979 for $28,000.00.

6. In May 1983 the wife was retrenched from her employment.

7. In November 1983 the parties’ daughter E was born and she is now aged 24 years.

8. In July 1987 the parties’ second daughter R was born and she is now aged 20 years. 

9. Following the birth of the parties’ children the wife states from time to time she worked on a part time basis. 

10. In 1994 the wife commenced work as a contract carer for 7 hours per week.  She continued in this employment until 2001.

11. On 28 November 1998 the parties separated following an incident involving the husband and the parties’ daughter, E, during which E sustained an injury to her wrist.  The husband was charged with assault and granted bail upon condition that he not return to the family home or communicate with the child E.  The parties thus ceased cohabitation at this time.  Following separation R resided with the husband.

12. On 7 May 1999 the husband instituted proceedings in this Court, filing a Form 7 Application for Final Orders seeking that the child R live with him, that he have contact with E and orders with respect to property settlement.  The husband contemporaneously filed a Form 8 Application seeking interim parenting and financial orders.

13. On 19 May 1999 a Senior Registrar of this Court made orders by consent restraining the parties from dealing in any way with specified property including money held in trust for the children.  It was noted that the child E was to live with the wife and the child R to live with the husband.

14. On 29 June 1999 the wife filed a Form 8A Response to a Form 8 Application seeking interim parenting and financial orders.

15. On 29 June 1999 Judicial Registrar Forbes made orders by consent in relation to the children, including orders that E live with the wife and R with the husband, and orders restraining the parties from dealing with property and in relation to obtaining valuations of property.  An order was made that the children be separately represented.

16. On 6 July 1999 the criminal proceedings against the husband were discontinued upon the husband entering an undertaking in the Magistrates Court that he not communicate with E.

17. On 21 July 1999 the wife filed a Form 7A Response to Application for Final Orders seeking orders that the children live with her and that she receive the equivalent of 65% of the net assets and financial resources of the parties.

18. On 27 July 2000 it was ordered that the husband be restrained from approaching or remaining within 300 metres of the child E and from speaking to, telephoning or contacting the child.

19. On 13 December 2000 the husband filed a Form 3 Application seeking that the wife’s Form 7A Response be struck out and seeking leave to proceed with his Form 7 Application on an undefended basis.

20. On 1 March 2001 I made orders that the husband be able to access $5,000.00 of his long service leave entitlement and that in the event that the wife failed to comply with orders with respect to the filing of documents, the wife’s Form 7A Response be struck out and the matter proceed on an undefended basis.

21. On 14 March 2001 the wife filed a Form 3 Application seeking that injunctions be varied such that she be able to withdraw the sum of $15,000.00 to pay for legal costs and to be able to withdraw the balance of a term deposit account for her own use.

22. On 29 March 2001 the wife filed an Amended Form 3A Response to an Initiating Application seeking parenting and financial orders, including that she retain the former matrimonial home and receive 70% of the net assets and financial resources of the parties or either of them.

23. On 6 July 2001 Ms F, solicitor, filed a Form 55 Notice of Ceasing to Act on behalf of the wife.

24. On 17 June 2002 the wife filed a Form 57 Notice Disputing Bill of costs issued by Ms F’s company F Pty Ltd seeking the sum of $2,210.90.

25. On 15 October 2002 Ms F filed an Amended Form 56 Bill of Costs in the sum of $15,559.08.

26. In March 2003 the husband purchased a property at C for $82,000.00.  He obtained a loan of $77,900.00 secured by mortgage and borrowed the balance from his parents.

27. On 20 March 2003 the husband filed a Form 8 seeking that the wife’s Form 7A Response filed 21 July 1999 be struck out and that he have leave to proceed with his Form 7 Application as an undefended matter.

28. On 16 May 2003 the wife filed a Form 8A Response to Form 8 Application seeking, inter alia, that her Form 7A Response not be struck out and the matter not proceed undefended. 

29. On 16 May 2003 the Honourable Justice Murray, upon noting that the wife had failed to comply with orders of the Court of 29 June 1999 as to valuation of personalty and real estate and that the trial had been adjourned three times due to the wife’s failure to comply, ordered that the wife’s Form 7A filed 21 July 1999 in relation to property settlement be struck out and ordered the property settlement proceedings proceed undefended. 

30. On 16 June 2003 the wife filed a Form 42 Notice of Appeal against the orders of the Honourable Justice Murray on 16 May 2003.  The wife also filed a Form 67 Application for Leave to Appeal.

31. On 3 July 2003 the wife filed a Form 8 Application seeking a stay of the trial pending determination of the Application for Leave to Appeal and the Appeal to the Full Court.

32. On 9 July 2003 Ms F filed a Form 8 Application seeking that the wife pay the costs of F Pty Ltd of and incidental to the taxation of costs in this matter.

33. On 11 July 2003 the wife filed an Amended Form 42 Notice of Appeal.

34. On 14 July 2003 the Honourable Justice Murray stayed the order of 16 May 2003 provided that the wife provide the husband’s solicitor with certain valuations within 28 days.

35. On 12 August 2003 the wife filed a Form 67 Application for Leave to Appeal against the orders of the Honourable Justice Murray made 14 July 2003.

36. On 14 August 2003 a Form 58 Certificate of taxation was issued for the wife to pay Ms F $5,104.05.

37. On 16 September 2003 the Honourable Justice Burr discharged the order appointing the Child Representative in the children’s proceedings, listed the matter for a pre-trial conference, and made orders for the filing of affidavits.

38. On 24 September 2003 the parties’ daughter E filed an Application in the Federal Magistrates Court seeking that the husband pay adult child maintenance.

39. On 26 September 2003 the wife filed two Form 42B Notices of Withdrawal of Appeal withdrawing both appeals.

40. On 30 October 2003 the husband filed a Form 12B Response to an Application for Maintenance seeking that the wife be joined as a respondent to the maintenance proceedings and the matter be transferred to the Family Court.

41. On 5 November 2003 Federal Magistrate Brown transferred the maintenance proceedings to the Family Court.

42. On 30 November 2003 the husband was made redundant.  For the next year until November 2004 the husband drew on his long service leave entitlement and then he received a redundancy payment.  He received the sum of $51,971.00 less the sum of $13,500.00 which was owing to the employer for legal costs paid out on behalf of the husband.  The husband also received a payout of the balance of his annual leave entitlement in the sum of $5,347.01.  However income tax of $1,684.00 was deducted from this.  The husband’s company vehicle was also transferred to him at this time.

43. On 19 December 2003 the husband filed a Form 3 Amended Application seeking that the child R live with him and property settlement orders.

44. On 17 March 2004 Ms F filed a Form 8 Application seeking that the wife be restrained from assigning, transferring, disposing of or dealing with any asset in her possession, including any property the wife is entitled to pursuant to any order for property settlement, that the injunction operate pending payment by the wife to Ms F of the amount due to her pursuant to the Certificate of Taxation dated 14 August 2003 together with interest and costs.  Ms F also filed on this date a Form 46 Enforcement Summons summoning the wife to attend Court to be orally examined on her failure to comply with the order of 14 August 2003.

45. On 18 March 2004 I made final orders by consent in relation to parenting issues.  Pursuant to the orders, the child R was to reside with the husband and have contact with the wife as agreed between the wife and child.  Consent orders were also made on this date finalising E Spence’s maintenance application, as follows:

    “UPON NOTING that it is the understanding of all parties that a long term child saving investment plan no. […] in the amount of TWELVE THOUSAND FOUR HUNDRED AND SEVENTY DOLLARS AND FOURTEEN CENTS [$12,470.14] as at the 17^th day of March 2004 held at the Westpac Bank in the name of the second respondent [the wife] is to vest in the name of the adult child [E Spence] on the 1^st day of April 2004 and UPON NOTING that it is the understanding of all parties that the Bank will not issue penalties to access the said investment

    BY CONSENT IT IS ORDERED:

    1.That paragraph 1bv of the orders made by this Honourable Court on the 19^th day of May 1999 be discharged insofar as it relates to the following accounts:

    1.1Westpac Bank child saving plan investment account no. […] in the name of [the wife] in trust for [E Spence];

    1.2National Australia Bank term deposit account no. […] in the name of [the wife] in trust for [E Spence]; and

    1.3National Australia Bank account no. […] in the name of [the husband] in trust for [E Spence].

    2.That the husband and the wife do execute all necessary documentation to allow the release of funds to [E Spence] within seven [7] days from the date of this order from the following accounts:

    2.1National Australia Bank term deposit no. […] showing a balance of SIX THOUSAND SIX HUNDRED AND NINETY EIGHT DOLLARS AND SIXTY-SEVEN CENTS [$6,698.67] on the 19^th day of November 2003; and

    2.2National Australia Bank account no. […] showing a balance of NINE HUNDRED AND TWENTY ONE DOLLARS AND FOURTEEN CENTS [$921.14] on the 17^th day of March 2003.

    3.That the parties be restrained from dealing with any of the said bank accounts other than in accordance with the orders made herein.

    IT IS FURTHER ORDERED NOT BY CONSENT OF THE SECOND RESPONDENT:

    4.That the husband continue to pay health care cover and benefits in respect of [E Spence] for so long as he maintains health care cover for himself and [R Spence] and in any event until the 31^st day of December 2005.

    5.That the husband pay up to a maximum of SIX HUNDRED AND SIXTY SIX DOLLARS [$666.00] over a two [2] year period toward any gap relating to medical expenses incurred in respect of [E Spence] and not covered by the said health care cover referred to in paragraph 4 herein.

    6.That the Form 12 application filed by the applicant adult child on the 20^th November 2003 be dismissed and removed from the pending cases list.”

46. On 24 May 2004 I expressed concerns regarding the wife’s mental health and indicated that I wanted the wife’s medical practitioner to provide information to the court addressing the wife’s medical condition.

47. On 29 June 2004 the wife filed an affidavit annexing a letter from her doctor in which he outlined that the wife was suffering from depression and anxiety attacks.

48. On 25 November 2004 the wife filed a Form 2 Application in a Case seeking that a case guardian be appointed to assist the wife, and that the Attorney- General appoint a case guardian pursuant to Rule 6.11 of the Family Law Rules 2004.  In her supporting affidavit, the wife stated that she had been diagnosed with post-traumatic stress disorder and was suffering depression. 

49. On 28 January 2005 I dismissed the Form 46 Enforcement Summons filed by Ms F.  This was done on the application of Ms F given that with the commencement of the revised rules of court in March 2004 a different enforcement process was put in place.

50. On 17 June 2005 Senior Registrar Kelly dismissed the wife’s Form 2 Application filed on 25 November 2004 seeking that a case guardian be appointed, upon noting that the wife did not wish to pursue the application.

51. On 8 July 2005 the husband recommenced employment.

52. On 9 August 2005 Ms F filed a Form 2 Application in a Case seeking an order pursuant to Section 90AE(3) of the Family Law Act 1975 that out of the wife’s share of the net proceeds of sale or any payment due by the husband to the wife, Ms F be paid the amount of the allocatur plus interest, or in the alternative an order under Section 109A(2)(a)(iii) or such other order as may be necessary to enforce payment of the amount due.

53. On 4 October 2005 F Pty Ltd commenced proceedings in the Adelaide Magistrates Court (Civil Division) seeking orders for the sale of property and application of proceeds of sale pursuant to Section 8(2)(c) of the Enforcement of Judgments Act 1991(SA), in the sum of $5,973.30, or in the alternative a charge under Section 8 of the Enforcement of Judgments Act 1991(SA). The wife subsequently filed a counter claim.

54. On 11 October 2005 the wife filed a Form 2 Application in a Case seeking a review of orders of Judicial Registrar Forbes made on 16 August 2005.  The wife also filed a Form 2 Application in a Case seeking an extension of time.

1. On 17 October 2005, in the wife’s absence the Honourable Justice Murray dismissed the wife’s two Form 2 Applications filed on 11 October 2005 for want of prosecution.

2. The trial with respect to property settlement and spousal maintenance commenced on 3 and 4 November 2005 before Judicial Registrar Forbes. The trial continued on 21 to 24 February, 2 and 3 March, 2 to 5 May, 25 July, and 29 and 30 August 2006.  Judicial Registrar Forbes then reserved his judgment.

3. On 3 November 2005 F Pty Ltd obtained judgment in the sum of $5,973.30 in the Adelaide Magistrates Court in the wife’s absence.

4. On 14 November 2005 the wife filed a Form 2 Application in a Case seeking an extension of time and leave to be heard and be present for a review of the decision of Judicial Registrar Forbes on 16 August 2005.

5. On 14 November 2005 the wife filed a Notice of Appeal seeking to have her Form 2 Applications in a Case filed 14 September 2005 and 6 October 2005 reinstated and seeking a review of the order of Judicial Registrar Forbes of 16 August 2005.

6. On 8 December 2005, Stipendiary Magistrate Johansen set aside the judgment obtained in the Adelaide Magistrates Court on 3 November 2005.

7. On 12 December 2005 the Honourable Justice Murray dismissed the wife’s Form 2 Application in a Case filed on 14 November 2005.

8. On 12 December 2005 the wife filed an Amended Notice of Appeal.

9. On 4 January 2006 the wife filed a Form 2 Application in a Case seeking a stay of the trial pending determination of her Application for Leave to Appeal and her Appeal to the Full Court.

10. On 7 February 2006 the wife filed a Form 2 Application in a Case seeking a stay of the trial pending appeal and dismissal of Ms F’s Application of 9 August 2005.

11. On 15 February 2006 the Honourable Justice Murray dismissed the wife’s Form 2 Application filed on 4 January 2006 for want of prosecution.

12. On 15 February 2006 Judicial Registrar Forbes dismissed paragraph 1 of the wife’s application filed on 7 February 2006, seeking a stay of the trial, and referred paragraphs 2 and 3 to the trial.

13. On 20 February 2006 the wife filed a Form 2 Application in a Case seeking a review of the order of Judicial Registrar Forbes made on 15 February 2006 and a stay of the trial due to continue on 21 February 2006.

14. On 15 March 2006 the wife filed a Notice of Appeal against the orders of the Honourable Justice Murray made on 15 February 2006, seeking dismissal of the order and that the wife’s Form 2 Application in a Case filed on 4 January 2006 be reinstated.

15. On 6 April 2006 the wife filed a Form 2 Application in a Case seeking a stay of the trial pending the determination of her Application for Leave to Appeal and her Appeal to the Full Court.

16. On 11 April 2006 the Honourable Justice Burr dismissed the wife’s Application for Review filed on 20 February 2006 insofar as it sought to review the Judicial Registrar’s dismissal of paragraph 1 of her Application filed on 7 February 2006, and refused the Application for Review of Judicial Registrar Forbes’s order referring paragraphs 2 and 3 of her application to the trial.

17. On 2 May 2006 Judicial Registrar Forbes dismissed the wife’s Form 2 Application in a Case filed on 6 April 2006 and made orders with respect to valuations.

18. On 25 May 2006 the wife filed a Form 2 Application in a Case seeking a Review of the orders of Judicial Registrar Forbes made on 2 May 2006.

19. On 26 May 2006 the wife filed a Form 2 Application in a Case seeking orders with respect to valuations and that the husband be restrained from harassing, denigrating, intimidating the wife to any person or through a third party and be restrained from attending her place of residence.

20. On 14 June 2006 Judicial Registrar Forbes dismissed paragraph 2 of the wife’s application filed on 26 May 2006 seeking orders with respect to valuations.

21. On 21 June 2006 the wife filed an Amended Form 2 Application in a Case again seeking that the husband be restrained from harassing, denigrating or intimidating the wife to any person or through a third party, and be restrained from attending her place of residence and cease all “letters of harassment”.

22. On 22 June 2006 the wife filed a Form 2 Application in a Case seeking a review of the order of Judicial Registrar Forbes made on 14 June 2006.

23. On 5 July 2006 the Honourable Justice Burr made orders by consent granting the wife’s Form 2 Application for Review filed on 25 May 2006 and discharged paragraphs 2, 3, 4 and 5 of the orders made on 2 May 2006 with respect to valuations, and dismissed the wife’s application filed on 26 May 2006.

24. On 9 August 2006 the wife filed a Form 2 Application in a Case seeking a review of orders made by Judicial Registrar Forbes on 25 July 2006.

25. On 28 August 2006 I dismissed the wife’s Form 2 Applications for Review filed on 22 June 2006 and 9 August 2006.

26. On 22 September 2006 Judicial Registrar Forbes delivered his judgment with respect to property settlement, outlining the terms of proposed minutes of order.  However, the Judicial Registrar did not make those orders at that time and he adjourned further consideration of the minutes of order, costs and injunctions to 13 October 2006 and he further ordered that the husband and the wife each file and serve an affidavit particularising the claim that each made against the other for costs and disbursements with such affidavit to be filed and served by 11 October 2006.

27. On 6 October 2006 the husband filed a Form 2 Application in a Case seeking orders as to the costs of valuations, costs generally, for further items of personalty to be included in the items that he has from the former matrimonial home, for the funds held by the wife at separation to be included in the property settlement, for the wife’s claim for spousal maintenance to be dismissed, and for the wife to pay maintenance for the adult child R.

28. On 13 October 2006 the wife filed a Form 2 Application in a Case seeking orders as to costs generally, as to the costs of valuations, for the husband to be restrained from attending at the former matrimonial home, and for the husband to pay spousal and child maintenance dating back to the separation in 1998.

29. On 13 October 2006 Judicial Registrar Forbes made the following orders including final orders with respect to property settlement:

    “1That the husband do pay to the wife the sum of THIRTY SIX THOUSAND SIX HUNDRED AND EIGHTY DOLLARS [$36,680.00] within forty-two [42] days of this date.

    2That contemporaneously with the payment abovementioned, the husband do deliver up to the wife a properly registrable Memorandum of Transfer as to the whole of his estate and interest in the property at [R] in the State of South Australia being all the land comprised and described in Certificate of Title Register Book Volume […] Folio […].

    3That the wife do pay out to the child [R Spence] born […] July 1987 all moneys standing to the credit of the wife in the following accounts:

    a.    Commonwealth Interest Term Deposit Account […]; and

    b.    Commonwealth Life Family Bonds Policy No. […]

    4That each party do otherwise retain for their sole use, enjoyment and benefit absolutely all items of personalty, furniture, effects, appliances and chattels, motor vehicles, savings and investments, superannuation, life insurance and other benefits and entitlements (if any) in their respective possession free from any claim by the other.

    5That should the husband fail to pay the sum of THIRTY SIX THOUSAND SIX HUNDRED AND EIGHTY DOLLARS [$36,680.00] within the time period as set out in paragraph 1 hereof, then and in that case:

    a. interest do run in accordance with the rate as applies under the Family Law Rules;

    b.    the house property at [C] in the State of South Australia being the whole of the land comprised and described in Certificate of Title Register Book Volume […] Folio […] be sold out of court by auction or private treaty at such sum as the parties may agree for a sum not less than ONE HUNDRED AND EIGHTEEN THOUSAND DOLLARS [$118,000.00] and from the proceeds of sale after the payment of selling costs, agent’s commission  and mortgage balance, the wife be paid the sum of THIRTY SIX THOUSAND SIX HUNDRED AND EIGHTY DOLLARS [$36,680.00] together with such interest as may have accrued and the husband to receive the balance thereof.

    6That should the husband refuse or neglect to deliver up to the wife  a properly registrable Memorandum of Transfer as referred to in paragraph 2 hereof, then upon application by affidavit as to the said neglect or refusal a Registrar of the Court shall sign all such documents as may be necessary to give effect thereto.

    7That should the wife refuse or neglect to execute any document necessary to give effect to the payment out of moneys standing in the trust accounts mentioned in paragraph 3 hereof to the child [R Spence], then upon application by affidavit as to the said neglect or refusal a Registrar of the Court shall sign all such documents as may be necessary to give effect thereto.

    8That of the sum of THIRTY SIX THOUSAND SIX HUNDRED AND EIGHTY DOLLARS [$36,680.00] that the husband is to pay to the wife, he do cause the sum of SIX THOUSAND SIX HUNDRED AND TWENTY EIGHT DOLLARS AND SEVENTY THREE CENTS [$6,628.73] to be paid to the wife’s credit into a Trust Account held by the Family Court of Australia and to be held pending finalisation of the Form 2 Application filed by the third party, [F] Pty Ltd.

    9That the claim of the third party, [F] Pty Ltd, be adjourned to a date to be fixed pending determination of proceedings in the Adelaide Magistrates Court (noting that the matter is listed for mention in that court on 24 October 2006).

    10That the time for the wife to file and serve her application and affidavit, the subject of paragraph 2 of the order of 22 September 2006, be extended to today’s date (noting that copies of the documents have been provided to the husband herewith).

    11That paragraph 11 of the Form 2 Application filed by the husband on 6 October 2006 (document 283) be struck out.

    12That paragraph 8 of the Form 2 Application filed by the wife this day (document 285) be struck out.

    13That the husband’s claim for costs against the wife and the wife’s claim for costs against the husband be adjourned for hearing on Friday, 27 October 2006 at 10am (to continue on 17 November 2006 at 10am).

    14That any affidavit to be relied upon by either party be filed and served by 20 October 2006.”

30. On 19 October 2006 the wife filed a Form 2 Application in a Case seeking procedural orders relating to an extension of time.

31. On 27 October 2006 Judicial Registrar Forbes made the following orders:

    “UPON NOTING that the husband has paid the sum of $2,750.00 being the valuation costs of Mr [B] by his accounts dated 25 February 2003, 11 September 2003 and 20 April 2005

    AND UPON FURTHER NOTING that the sum of $872 remains outstanding to Mr [B] by his account of 18 July 2006 and the sum of $1,298.00 remains owing to Mr [R] by his account of 20 July 2006 (and for these purposes the order of the Honourable Justice Burr of 5 July 2006 is discharged)

    AND FOR THE PURPOSES of achieving equality of contribution by the parties of the valuation costs incurred

    IT IS ORDERED:

    1That the wife do pay:

    i.the account of Mr [B] in the sum of EIGHT THOUSAND AND SEVENTY TWO DOLLARS [$872.00];

    ii.the account of Mr [R] in the sum of ONE THOUSAND THREE HUNDRED AND NINETY EIGHT DOLLARS [$1,398.00]

    to the exoneration of the husband and the wife do indemnify the husband in respect of those costs.

    2That the wife do pay to the husband the sum of THREE HUNDRED AND FORTY DOLLARS [$340.00].

    3That the amounts to be paid as set out in paragraphs 1 and 2 of this order be paid by the wife within ten [10] days of receipt of the moneys due to her under paragraph 1 of the order of 13 October 2006.

    4That each party otherwise pay their own costs.

    5That the Form 2 Application filed by the husband on 6 October 2006 be dismissed.

    6That the Form 2 Application filed by the wife on 13 October 2006 be dismissed.

    7That the Form 2 Application filed by the wife on 19 October 2006 be dismissed.”

32. On 27 October 2006 the husband filed a Form 2 Application in a Case seeking a review of “orders” made by the Judicial Registrar with respect to the contents of sheds at the former matrimonial home.  The husband sought orders that he have the items listed in Attachment “A” to the reasons delivered by the Judicial Registrar on 22 September 2006, that he have some of the items listed in the valuation of Mr R under the heading “valuation of vehicles and equipment”, and that he in effect pay the wife for all of these items.

33. On 13 November 2006 the wife filed a Form 2 Application in a Case seeking a review of the decision of Judicial Registrar Forbes made on 13 October 2006.

34. On 23 November 2006 the wife filed a Form 2 Application in Case seeking a review of the decision of Judicial Registrar Forbes made on 27 October 2006.

35. On 4 December 2006 the wife filed an Amended Form 2 Application in a Case with respect to the review of the order of 13 October 2006.

36. On 4 December 2006 the Honourable Justice Dawe made orders staying the enforcement of the Judicial Registrar’s orders pending conclusion of the Reviews.

37. On 5 March 2007 the wife filed a Form 2 Application in a Case seeking a number of procedural orders and that the husband be restrained from threatening the wife verbally, through letters or through a third party.

38. On 26 March 2007 the husband filed a Form 2A Response to an Application in a Case seeking dismissal of the wife’s application for an injunction and that any application made by the wife seeking a review of the orders of Judicial Registrar Forbes made on 13 October 2006 and 27 October 2006 be dismissed.  The husband also sought an order for costs.

39. On 18 April 2007 Ms F filed a Form 2 Application in a Case seeking that F Pty Ltd be named as a party to the Application for Review and be granted leave to attend all hearings and make submissions.

40. On 23 April 2007 the Honourable Justice Dawe made orders naming F Pty Ltd as a party to the Application for Review, and ordered that the husband be restrained from sending threatening or abusive correspondence to the wife.

41. On 23 April 2007 the wife filed a Form 2 Application in a Case opposing the orders sought by the husband in his Form 2A Response filed on 26 March 2007.

42. On 11 July 2007 the wife’s counterclaim in the Adelaide Magistrates Court was dismissed.  Previously Ms F had discontinued the claim filed by her.

43. On 19 July 2007 the wife filed a Form 2 Application in a Case seeking that the trial set for 23 July 2007 be adjourned.

44. On 23 July 2007 the wife filed an Amended Form 2 Application in a Case outlining the orders she sought.

45. On 23 July 2007 I dismissed the wife’s application filed on 19 July 2007 and I dismissed paragraph 1 of the wife’s Amended Form 2 Application in a Case filed on 23 July 2007 insofar as it related to spousal maintenance; paragraph 8 dealing with the restraining order in relation to E; paragraph 11 seeking that the judgment in relation to Ms F be set aside; and paragraph 13 seeking that the husband indemnify the wife.

46. On 1 August 2007 Ms F filed an Amended Form 2 Application in a Case seeking leave to intervene in proceedings, injunctions against the husband and wife, that the wife pay to F Pty Ltd the monies due pursuant to the order of 14 August 2003 plus interest prior to any property division between the wife and the husband, and in the alternative, that the parties or either of them pay the judgment sum plus interest to F Pty Ltd from monies due or payable to the wife by way of property settlement.

47. On 3 September 2007 the wife filed a Form 2A Response to an Application in a Case in response to Ms F’s application filed on 1 August 2007.

48. On 1 August 2007 I dismissed paragraph 9 of the wife’s Form 2 Application in a Case filed on 23 July and paragraph 15 insofar as it related to E.

49. On 4 September 2007 I dismissed the wife’s oral applications seeking that Ms F’s Amended Form 2 Application in a Case be dismissed and that the costs proceedings be adjourned.

The current circumstances of the parties
The wife

1. The wife resides in the former matrimonial home at R.  She does not work and she receives a disability support pension of $258.95 per week.

2. The wife claims that she is suffering from post-traumatic stress disorder and depression.  She is receiving therapy from a psychologist.

3. The wife claims that her parents have assisted her financially since the separation and they continue to do so.

The husband

1. The husband resides in a property situated at C which he purchased in March 2003.

2. One of the two adult children of the marriage, R apparently still resides with the husband, although she now spends a good deal of time with her fiancé.  R is employed as a receptionist and she receives approximately $30,000.00 gross per year.  She pays a small amount of board to her father.

3. The husband is employed by S Company as a supervisor and he earns $865.38 gross per week.

The issues in dispute

1. A review entails a hearing de novo of the applications before the Judicial Registrar.  These applications were the husband’s Amended Application for Final Orders filed on 19 December 2003 and the wife’s Amended Response filed on 29 March 2001.  However, in her case outline document presented to the Judicial Registrar the wife set out the orders that she then sought.  Now there is the wife’s application filed on 23 July 2007 which contains the orders that the wife seeks on review and I have set those orders out in paragraph 4 above.

2. In relation to the husband, to repeat, apart from the issue of certain items of personalty, he did not seek to review the exercise of power by the Judicial Registrar resulting in the order for property settlement, but in the context of the wife’s application he in effect sought different orders than those made by the Judicial Registrar.  With respect to the items of personalty, although the husband did not pursue his application in that regard before the Judicial Registrar and the Judicial Registrar struck out the relevant paragraph in his application and subsequently dismissed the entire application, the husband now seeks that he have these items of personalty.

3. In relation to the wife’s application to review the exercise of power by the Judicial Registrar which resulted in orders for property settlement, the following issues have emerged with respect to the asset pool:

   125.1With the net asset pool the wife suggests that the husband has an undisclosed entitlement of $100,000.00 in a superannuation fund.  The husband denies this.

   125.2The wife makes a general allegation that the husband has not provided full and frank disclosure of his assets or his financial position.  The husband denies this.

   125.3The wife seeks to include in the net asset pool the house property purchased by the husband since separation together with the household furniture and effects in that house property, but curiously not the mortgage liability secured over the title to that property.  The wife also seeks to include the husband’s AMP superannuation entitlement commenced since separation.  The husband opposes this.

   125.4The wife seeks to exclude from the net asset pool the items of furniture and household effects in the bedroom of the adult child E.  The husband made no specific comment about this but his case appears to be that all furniture and effects in the former matrimonial home should be included in the asset pool.

   125.5Before the Judicial Registrar the wife sought to include in the net asset pool the husband’s long service leave, annual leave and redundancy payment.  She did not refer to these items in her submissions before me but they were referred to in her outline of case document and I proceed on the basis that she still seeks that they be included.  The husband opposed this before the Judicial Registrar and I will also proceed on that basis for the purpose of this review.

   125.6The wife sought to include in the net asset pool certain savings.  The Judicial Registrar identified them as an amount of $24,308.62, but it is not possible to discern from his reasons whose savings these were, where they were being held, or at what stage these savings existed.  Certainly neither party was of any assistance in answering any of these questions.

   125.7Before the Judicial Registrar the husband sought to include in the net asset pool the monies that the wife had in various bank accounts at separation totally $55,264.00.  The wife opposed that at the time, but the husband did not make the same submission to me.  Despite this, given that neither party was represented I consider that I still need to address this issue in this review.

   125.8The wife sought to include as a liability the amount of money that she claims that she has been provided by her parents since separation.  Again the husband did not specifically address this, but it is apparent that his case did not allow for such a liability, and thus I proceed on the basis that it is disputed.

   125.9The husband claimed that three accounts held by the wife should be included in the asset pool, namely a NAB passport account with a credit balance of $604.00, a Commonwealth Bank account with a credit balance of $15,000.00, and Commonwealth Bank account held in trust for the adult child R with a credit balance of $11,382.00.  The wife opposed this on the basis that they were accounts created post-separation from monies held by her at separation and if the money at separation was taken into account (which she opposed anyway) then these amounts should not be included.

1. In relation to the respective contributions of the parties both parties had little idea of what should be an appropriate assessment and why.  However, in the end result the husband sought a percentage division of 55%/45% in his favour for the non-superannuation assets and a percentage division of 70%/30% in his favour for the one superannuation asset namely his entitlement in the Spectrum Fund, formally the Zurich Fund.  In summary, the issues for the husband were as follows:

   126.1The husband says that he made the greater financial contributions and that his income went to meet family expenses whereas the wife’s did not.

   126.2The husband says that he made significant non-financial contributions by way of undertaking extensive renovations to the former matrimonial home.

   126.3The husband says that he made significant contributions as a parent and homemaker.

   126.4The husband says that post-separation he made greater contributions than the wife as a result of the circumstance that he had the care of R who was the younger of the two children.

2. Typically the wife’s position on the appropriate percentage division was difficult to understand.  In her final address she suggested that overall the contributions to all assets including superannuation should be assessed at 65%/35% in her favour.  She claimed that she raised the children herself with no assistance from the husband.  She said that she had to do everything, and that the house and the children were her sole responsibility.  However, the wife also alleged that she was the victim of domestic violence perpetrated by the husband during the marriage and she submitted that as a result of that domestic violence there should be an adjustment of 15% to her entitlement.  She completely failed to explain though where this extra percentage fitted in.

3. In relation to whether there should be an adjustment for any relevant factors arising under Section 75(2) of the Act, the husband said that there should be no adjustment and the wife professed not to be able to answer this question.

4. In relation to the items of personalty sought by the husband the issue is whether the husband should have them or be credited with their value.  The husband wants them but the wife does not agree with this.  She does not suggest though that they are items that she wants for her own use, and she acknowledges that they are the husband’s, but she simply does not want the husband to come on to her property and collect them.

5. As a result of this being the dispute I sent the parties off for conciliation before a Registrar and I attempted to explain to the wife that orders could be put in place to deal with her alleged concern about the husband coming onto her property, but there was still no agreement.

6. In relation to the outstanding accounts of the valuers instructed by the parties the wife seeks to only have to pay one half of these accounts and to not pay any amount to the husband, whereas the husband seeks to maintain the orders of the Judicial Registrar made on 27 October 2006.

7. Finally, the wife seeks orders for spousal maintenance, firstly backdated to the date of separation, and secondly for a period of two years to enable her to recover her health, to retrain, and to re-enter the workforce.  The husband opposes these orders.

The principles to be applied
Property settlement

1. The provisions of Section 79 of the Family Law Act 1975 define the court's power and obligations in determining applications for property settlement.  The court has a discretion to make orders altering the interests of parties in property, provided the court is satisfied that such orders are appropriate, just and equitable.

2. The court is obliged by the provisions of Section 79(4) of the Family Law Act 1975 to take into account the following matters:

   134.1The financial and non-financial contributions 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 (sub-paragraph (a) and (b));

   134.2The contribution made by a party to the marriage to the welfare of the family, including any contribution made in the capacity of homemaker or parent (sub-paragraph (c));

   134.3The effect of any proposed order upon the earning capacity of either party to the marriage (sub-paragraph (d));

   134.4The matters referred to in Section 75(2) so far as they are relevant (sub-paragraph (e));

   134.5Any other order made under the Act affecting a party to a marriage or a child of the marriage (sub-paragraph (f));

   134.6Any child support payable (sub-paragraph (g)).

3. Accordingly, in assessing the entitlement of each of the parties for property settlement, there is both a retrospective element relating to the contributions of each of the parties and a prospective element relating to matters referred to in Section 75(2).

4. According to guidelines established through a series of leading decisions, the court should determine the following matters on the evidence, that is:

   136.1Firstly, the court must determine the assets, liabilities and financial resources of the parties to the marriage.

   136.2Secondly, the court must consider all relevant contributions of each of the parties, and, where possible, the court should assign an entitlement of each of the parties arising as a result of those contributions.

   136.3Thirdly, the court should then consider the prospective components of the claims of each of the parties arising as a result of the provisions of Section 75(2). The court should then identify what alteration, if any, should be made to the entitlement of each of the parties earlier assessed on account of contributions having regard to the relevant Section 75(2) factors.

   136.4Fourthly, the court takes a step back and considers whether the proposed orders are just and equitable. 

Spousal maintenance

1. The relevant sections of the Family Law Act 1975 are as follows:

   “72 (1)A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

   (a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

   (b)by reason of age or physical or mental incapacity for appropriate gainful employment; or

   (c)for any other adequate reason;

   having regard to any relevant matter referred to in subsection 75(2).

   (2)The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.”

   “…

   74 (1)In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.

   (2)If:

   (a)an application is made for an order under this section in proceedings between the parties to a marriage with respect to the maintenance of a party to the marriage; and

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

   (i)   when the application was made, the party was a bankrupt;

   (ii)  after the application was made but before the proceedings are finally determined, the party became a bankrupt; and

   (c)the bankruptcy trustee applies to the court to be joined as a party to the proceedings; and

   (d)the court is satisfied that the interests of the bankrupt’s creditors may be affected by the making of an order under this section in the proceedings;

   the court must join the bankruptcy trustee as a party to the proceedings.

   (3)If a bankruptcy trustee is a party to proceedings with respect to the maintenance of a party to a marriage, then, except with the leave of the court, the bankrupt party to the marriage is not entitled to make a submission to the court in connection with any vested bankruptcy property in relation to the bankrupt party.

   (4)The court must not grant leave under subsection (3) unless the court is satisfied that there are exceptional circumstances.

   (5)If:

   (a)an application is made for an order under this section in proceedings between the parties to a marriage with respect to the maintenance of a party to the marriage; and

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

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

   (ii)  after the application was made but before it is finally determined, the party becomes a debtor subject to a personal insolvency agreement; and

   (c)the trustee of the agreement applies to the court to be joined as a party to the proceedings; and

   (d)the court is satisfied that the interests of the debtor party’s creditors may be affected by the making of an order under this section in the proceedings;

   the court must join the trustee of the agreement as a party to the proceedings.

   (6)If the trustee of a personal insolvency agreement is a party to proceedings with respect to the maintenance of a party to a marriage, then, except with the leave of the court, the party to the marriage who is the debtor subject to the agreement is not entitled to make a submission to the court in connection with any property subject to the agreement.

   (7)The court must not grant leave under subsection (6) unless the court is satisfied that there are exceptional circumstances.

   (8)For the purposes of subsections (2) and (5), an application for an order under this section is taken to be finally determined when:

   (a)the application is withdrawn or dismissed; or

   (b)an order (other than an interim order) is made as a result of the application.”

   “…

   75 (1)In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).

   (2)The matters to be so taken into account are:

   (a)the age and state of health of each of the parties;

   (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;

   (c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

   (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;

   (e)the responsibilities of either party to support any other person;

   (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;

   (g)where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;

   (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;

   (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;

   (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;

   (l)the need to protect a party who wishes to continue that party's role as a parent;

   (m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation;

   (n)the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;

   (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.

   (3)In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.”

The evidence

1. The husband appeared in person.  He gave evidence and was cross examined.  He relied on his affidavits that were before the Judicial Registrar, including those filed on 26 April 2001, 7 November 2002, 27 November 2002, 8 August 2003, 3 December 2003, 22 April 2005, 23 May 2005, 30 June 2005, and he further relied on his affidavits filed on 26 March 2007 and 11 April 2007, and his Statement of Financial Circumstances filed on 11 April 2007.  He also relied on the exhibits he tendered before the Judicial Registrar.

2. The wife also appeared in person.  She gave evidence and was cross examined.  She relied on the affidavits that were before the Judicial Registrar including those filed on 29 June 1999, 28 June 2000, 28 March 2001, 28 November 2002, 9 December 2003, 7 January 2004, 1 June 2005, and she further relied on her affidavits filed on 5 March 2007, 16 April 2007, 28 June 2007 and 18 July 2007, and her Statement of Financial Circumstances filed on 19 April 2007.  She also relied on the exhibits tendered before the Judicial Registrar.

3. Each party relied on an outline of case document but I had to explain to them that the contents of such a document is not evidence.

4. Neither party called any other witnesses.

5. I was not impressed with either party’s oral evidence.  In many respects it was irrelevant and addressed minor issues rather than the serious issues in dispute.  It was also yet another opportunity for the parties to continue their “war” against each other.  I must also say that I did not find the wife’s evidence to always be truthful, and in particular as to her allegations of domestic violence and what she did with her money.

6. I note that this is a case which commenced in this Court on 7 May 1999, and the file now comprises 12 volumes.  However, the primary reason for the case not being finalised well before now is not that the issues are particularly complicated or that there are any difficult issues of fact or law, but rather because of the irrational conduct of the wife and her obsession with various aspects of the case including her refusal to accept the obvious.  However, the husband is not immune from criticism and he has certainly played a part in ensuring the longevity of this case.  He has chosen to take a stand at various points and not look to compromise in the interests of bringing this matter to a conclusion.

The assets, liabilities and financial resources of the parties
At the commencement of cohabitation – 2 April 1977

1. The husband had the following:

   Assets

   Savings  N/K
     MLC Life Assurance Policy  N/K
     Mazda RX3 motor vehicle  N/K
     Suzuki motor bike  N/K
     Tools and equipment  N/K
     Clothing and personal effects  N/K
     Jewellery  N/K

   Liabilities

   Nil

   Financial Resources

   Nil

2. The wife had the following:

   Assets

   Savings  $3,334.60
     Clothes and personal effects  N/K
     Jewellery  N/K
     Glory boxes  N/K

   Liabilities

   Nil

   Financial Resources

   Nil

3. In relation to these assets and liabilities I make the following comments:

   146.1In his affidavit the husband deposed to having savings of $2,500.00 but in his oral evidence he said he had savings of $3,500.00.  The wife says that he had $400.00.  Neither party presented any evidence in support of these claims.  Thus, because I have no confidence in what either party tells me generally, all I can do is find that the husband had savings but I am not satisfied as to the extent of the same.

   146.2The husband says that he had three Volkswagen motor vehicles in various stages of repair, but again there is an inconsistency between the husband’s affidavit and his oral evidence as to how many there were.  For her part the wife says the husband acquired these vehicles during the course of the marriage.  The onus is on the husband to satisfy the Court that he had these items at the start, but he has not done that, and thus I have not included them.

   146.3The wife asserted that the husband had an interest in a restaurant business conducted by his parents.  The husband denies this.  The wife presented no evidence in support of this claim and I reject it.

   146.4The wife asserts that her parents provided her with $4,000.00 at the time of the marriage.  However, the husband denies this.  Again there is no evidence in support of the wife’s claim and she did not call her parents as witnesses.  The wife has the onus of proof to satisfy the court as to this issue and she has not done that.

At the date of separation – 28 November 1998

1. The assets, liabilities and financial resources of the parties were as follows:

   Non-superannuation assets

   The house property at R  N/K
              Furniture and household effects  N/K
              1982 Commodore motor vehicle  N/K
              Mazda RX3 motor vehicle  N/K
              Mazda RX7 motor vehicle  N/K
              Suzuki motor bike  N/K
              Caravan  N/K
              Boat and motor  N/K
              Tools and equipment  N/K
              Lawnmowers  N/K
              Model air craft  N/K
              NAB joint account  $3,483.00
              The wife’s NAB term deposit  $27,666.00
              The wife’s Commonwealth Bank account  $24,572.00
              The wife’s Commonwealth Bank account  $6,508.00
              Trust accounts held by the wife –
     NAB term deposit for E  $9,043.00
     Commonwealth Bank account for E  $3,544.00
     Westpac Children’s Foundation for E  $11,342.00
     Commonwealth Bank account for R  $6,151.00
     Westpac Children’s Foundation for R  $11,389.00

   Superannuation assets

   The husband’s superannuation entitlement with Zurich
     (as at 31/12/98)  $109,787.98

   Liabilities

   Nil

   Financial resources

   Nil

2. In relation to these assets I make the following comments:

   148.1Following separation the wife remained living in the former matrimonial home with E and the husband and R went to live with the husband’s parents.  The husband continued to pay the house and contents insurance for the former matrimonial home, cover the wife and the two children for medical benefits, and pay any gap payments for the two children.  In addition, the husband paid child support for E.

   148.2When the husband and R left the former matrimonial home the husband only took the Mazda RX3 motor vehicle, clothing and personal effects and savings of $2,000.00.

   148.3The husband asserted that the wife had a further account at the Commonwealth Bank with a credit balance of $1,500.00.  Exhibit 15 received by the Judicial Registrar indicates that the wife did have an account with this balance as at 8 December 1998, but there is no evidence that she had it at the date of separation.  The wife says that this was money from one of the accounts she did have at separation and referred to above.  The husband has not satisfied me that this was another account that the wife had at separation.

   148.4The husband asserts that the wife had three further accounts, namely an NAB passport account with a credit balance of $604.00, a Commonwealth Bank account with a credit balance of $15,000.00 and a Commonwealth Bank account held in trust for R with a credit balance of $11,382.00.  Before the Judicial Registrar both parties agreed that because these accounts were created post-separation it was likely that they came from money in the accounts referred to above.  However, before me the husband changed his position.  It was a waste of time though because he presented no further evidence in support of his claim.  The wife though clarified the position.  She said, and I accept, that the NAB account was in fact E’s account, the Commonwealth Bank account of $15,000.00 was commenced with money taken from other accounts at separation, and the other account is simply a doubling up of an account held at separation.

   148.5The wife did not accept that the husband’s superannuation entitlement was only $109,787.98 at separation.  The husband joined this scheme well before 1992, but the records produced not only by the husband but pursuant to subpoenae were only back to this date.  The wife says that the husband could have withdrawn or rolled over part of his superannuation that he accumulated prior to 1992.  However, there was no evidence to support this allegation and I reject it out of hand.

1. Having considered the result and revisited the history of the relationship between the parties, their respective contributions and the relevant Section 75(2) factors, I am satisfied that my proposed orders by way of property settlement are just and equitable.

Spousal maintenance

1. This is a new application by the wife in the sense that although the wife attempted to seek an order for spousal maintenance before the Judicial Registrar his Honour found that there was in fact no proper application before him and thus he refused to make any order about it.

2. In the application that the wife filed on 23 July 2007 she sought the following orders for spousal maintenance:

   “…

   6.That the husband do pay spousal maintenance in the sum of $150.00 per week for nine [9] years (1998-2007) which totals $70,200.00 under Section 72(1A) and (1B) and Section 75 of the Family Law Act 1975.

   7.I seek that the husband do pay a further 2 years of spousal maintenance for negative contribution, to the sum of $150.00 per week to recover my health and appropriate gainful employment under Section 72 and Section 75 of the Family Law Act 1975.”

3. In relation to paragraph 6 in effect the wife seeks a lump sum payment of $70,200.00 for past spousal maintenance.  However, that is an ill conceived application and one that I propose to dismiss summarily.  Spousal maintenance is intended to meet the immediate and future needs of a party, and although it is possible for orders to be made that are retrospective that is unusual and requires precise evidence and specific reasons to succeed.  In this case there is no basis for a retrospective order and particularly given there is no evidence before me which would enable me to make a determination as to the wife’s entitlement to spousal maintenance from separation in 1998 until 2007.  At any time in that period it was open to the wife to bring a proper application for spousal maintenance to address her then immediate and future needs.  She did not do so and as far as I am concerned it is not now open to her to bring an application for past maintenance, and, to repeat, without even any supporting evidence.  I note that during the course of these proceedings the wife has attempted to make an application for maintenance by seeking a payment to her by way of property settlement and spousal maintenance, but as the Judicial Registrar stated in his reasons for judgment, that is not a proper application for maintenance and should not be countenanced.  I agree with this and I need to do no more than refer to the decision of the Full Court in Clauson and Clauson (1995) FLC 92-595.

4. In relation to the order sought in paragraph 7 of the wife’s application, that is a different matter entirely and it is an application that I need to determine.  Firstly, I note that the husband opposes this application.  Secondly, in the application the wife seeks maintenance “for negative contribution”.  In evidence though the wife indicated that despite what she put in her documents she was not seeking maintenance on the basis of any alleged domestic violence perpetrated on her by the husband.  In any event, that is not a basis for making an order for maintenance and I ignore it.

5. The wife’s income is her disability support pension of $258.95 per week, but pursuant to Section 75(3) of the Act I am obliged to disregard this income. On the other side of the coin the wife’s expenses total $647.15 per week. The husband did not cross examine the wife about her expenses but it is plain from the detail of the same in her Statement of Financial Circumstances that not all of the expenses can be justified as reasonable or as relevant in determining her entitlement to spousal maintenance. For example, she claims $47.00 per week for expenses associated with her attendance at court, and it is not appropriate to take that into account here. However, even allowing for this it is apparent that, to use the terminology of Section 72 of the Family Law Act 1975, the wife is unable to support herself adequately by reason of physical or mental capacity for appropriate employment, and thus she satisfies that threshold test.

6. The husband’s gross income is $869.78 per week and his claimed total personal expenditure is $757.36 per week.  He says that he spends $91.70 on R and $13.00 on gifts to others.  However, R is working and only pays a minimal amount of board.  She should be able to meet all of her expenses and thus for the purposes of this application I propose to ignore her expenses and the gifts to other persons.

7. Like the husband with the wife, the wife did not cross examine the husband about his claimed expenditure.  However, again it is plain from the detail in the husband’s Statement of Financial Circumstances that some of the claimed expenditure cannot be considered reasonable in the context of this application.  For example, in this category there is an amount of $30.00 for entertainment/hobbies.

8. The wife seeks an amount of $150.00 per week for two years to enable her to recover her health and re-enter the workforce. Now, although it can be said that she needs at least $150.00 per week to support herself adequately taking into account relevant matters referred to in Section 75(2) of the Act such as sub-paragraphs (a), (b), (g), (h), (j) and (k), I do not consider that it would be reasonable to require the husband to pay any more than $100.00 per week, particularly bearing in mind the proposed order for property settlement (Section 75(2)(n)) and the husband’s own financial circumstances.

9. In terms of for how long the husband should pay such maintenance, I repeat my doubts about the wife’s actual state of health and her capacity in any event to return to the workforce.  However, to give her the best opportunity to do so I consider that a period of two years is not unreasonable.  Of course, if she does re-enter the workforce earlier then the husband can apply to vary the amount of the payment if there is no agreement about the same.  Thus, I propose to order that the husband pay maintenance to the wife in the sum of $100.00 per week for a period of two years.

10. The wife also seeks that the husband continue to cover her for private health benefits through Mutual Community.  In light of my proposed order though the husband should be relieved of that expense and I will dismiss the wife’s application.

Valuation costs

1. The wife also seeks to review the exercise of power by the Judicial Registrar on 27 October 2006 whereby, to repeat, he ordered as follows:

   “UPON NOTING that the husband is paid the sum of $2,750.00, being the valuation costs of Mr [B] by his accounts dated 25 February 2003, 11 September 2003 and 20 April 2005.

   AND UPON FURTHER NOTING that the sum of $872.00 remains outstanding to Mr [B] by his account of 18 July 2006 and the sum of $1,398.00 remains outstanding to Mr [R] by his account of 20 July 2006 (and for these purposes the order of the Honourable Justice Burr of 5 July 2006 is discharged).

   AND for the purposes of achieving equality of contribution by the parties of the valuation costs incurred

   IT IS ORDERED

   1.     That the wife do pay:

   (a)The account of Mr [B] in the sum of EIGHT HUNDRED AND SEVENTY-TWO DOLLARS [$872.00];

   (b)The account of Mr [R] in the sum of ONE THOUSAND THREE HUNDRED AND NINETY-EIGHT DOLLARS [$1,398.00];

   to the exoneration of the husband and the wife do indemnify the husband in respect of those costs.

   2.That the wife do pay to the husband the sum of THREE HUNDRED AND FOURTY DOLLARS [$340.00].

   3.That the amounts to be paid as set out in paragraphs 1 and 2 of this order be paid by the wife within TEN [10] days of receipt of the monies due to her under paragraph 1 of the order of 13 October 2006.”

2. The wife now seeks an order that the outstanding accounts of Mr B and Mr R be paid equally by the husband and the wife and that the wife not be required to pay any money to the husband.

3. The husband seeks to maintain the orders made by the Judicial Registrar.

4. Neither party sought to put before me any further material relating to this issue, and I must say that neither party gave it more than scant attention during the hearing.  Indeed, the wife did no more than tell me the orders that she sought and importantly she did not even explain why she sought those orders.  Thus I have had to do the best I can with the material that was before the Judicial Registrar, and of course there are his helpful reasons for judgment delivered on 27 October 2006.

5. Mr B undertook valuations of the former matrimonial home, the husband’s house property and the personalty.  He presented accounts on 23 February 2003 for $550.00, 11 September 2003 for $1,870.00 and 20 April 2005 for $330.00, totalling $2,750.00.  These accounts were paid by the husband, and before the Judicial Registrar he sought that the wife reimburse him for one half of these amounts, ie $1,375.00.

6. Orders were made for these valuations to be undertaken, and in effect the question of payment of the accounts as between the parties was left to the property settlement trial.

7. There was a further account of Mr B’s for $872.85 dated 18 July 2006, and that account remains outstanding.  In order to understand this account it is useful to set out paragraphs 24 to 32 of the Judicial Registrar’s reasons for judgment delivered on 27 October 2006 as follows:

   “24.There is a further account from Mr [B] and that is an account of 18 July 2006 and it is in the sum of $872.85 and neither party has paid those costs.  There is a bit of a history to that account.  As can be seen it is an account dated 18 July 2006.  It was for services rendered by Mr [B] after the trial commenced. 

   25.The trial commenced on 3 and 4 November 2005, and as I mentioned, did not conclude until the reasons were delivered on 22 September 2006.  There were hearings in February, March, May, July and August of 2006.  Mr [B’s] costs arose because his previous work was considered to have become a little dated, some three years old, and up-to-date evidence was wanted as to the value of the properties during the currency of the trial and so the parties were given the ability to re-engage Mr [B] and get valuations from him.

   26.What happened was, without going into the history of it, they did not and [the husband] pointed the finger at [the wife] to say that she was being unhelpful and [the wife] was saying that there was an issue with Mr [B] being in collusion with the husband, and as it turned out there was an issue between them, but because Mr [B] had previously had the history of the matter, he knew the parties, it was considered he was the best person to undertake the valuations, and we see in the orders of 3 March 2006, 2 May 2006 and 14 June 2006 a history that dealt with this question of the further valuations being undertaken by Mr [B]. 

   27.I do not think I need to go into the detail of that.  In the end it became necessary to specifically direct that the valuations be undertaken.  Paragraph 6 of the order of 2 May 2006 provided:

   “That the husband do pay the costs of the abovementioned valuations and be at liberty to seek indemnification from the wife in that regard.”

   28.That actually, at some level at least, was proceeded with and we see Mr [B’s] account of 18 July 2006 in the amount of $872.85 being his fees for what he did in preparation for providing further valuation evidence. 

   29.I do not know to what extent Mr [B] became aware of it but the parties found themselves before the Honourable Justice Burr on a review hearing.  It was for the wife's Form 2 application for review filed 25 May 2006.  The wife was seeking a review of orders that I made on 2 May 2006. 

   30.I do not think it matters about the detail of that except it was a review against the orders that I made directing the wife that she undertake the revaluation by Mr [B].  The parties then consented to an order to securing the services of a Mr [R] and the detail as to that can be seen from the order of 5 July 2006. 

   31.They also agreed that in the event that Mr [R] was not engaged and had not reported by 19 July 2006 with a copy of the valuation to each of the parties, that in that event Mr [B’s] services be sought.  The parties, the husband and wife here, they agreed to implement an arrangement that had Mr [R] coming into the matter and undertaking a valuation of the different things with Mr [B] to be a fall-back position in the event that there was a failure to comply with the deadline of 19 July 2006.  

   32.That deadline was because of the trial resuming and the need to get the valuation evidence.  That is why obviously they had this desire to keep Mr [B] in the loop but of course there was a financial implication.  Mr [B] had already, on the orders that I had made, got himself involved and incurred professional time.”

8. Mr R in fact undertook the valuations as requested by the parties and he rendered an account on 20 July 2006 for $1,398.00.  That account remains outstanding.

9. In my view there is no basis to make any different order than the order made by the Judicial Registrar.  It was necessary to obtain valuations for the purposes of the trial and Mr B was initially instructed to undertake these valuations, and he carried out those instructions.  He was then instructed to undertake an updated valuation and he undertook certain work for that purpose, but the wife accused him of being in collusion with the husband and the parties then agreed for Mr R to do the valuations instead.

10. Each party’s financial circumstances is such that they can afford to pay one half of these valuation costs, and they should do so.  Thus, I propose to dismiss the wife’s Application for a Review.  However, I need to vary paragraph 3 of the orders made by the Judicial Registrar given that there will now be a new order in relation to payment of money by the husband to the wife.

The husband’s Application for a Review

1. In his Amended Application filed on 19 December 2003 the husband sought the delivery up of certain items of personalty as identified in his affidavit filed on 28 November 2002.  In paragraph 107 of his reasons for judgment delivered on 22 September 2006 the Judicial Registrar contemplated the husband having the contents of the shed at the former matrimonial home with a total value of $2,965.00 which the husband would then pay to the wife, and he provided for such a result in his proposed orders.  Apart from this the Judicial Registrar proposed an order that each party retain all other items of personalty in their respective possession.  His Honour though did not make any of those proposed orders and adjourned further consideration of the minutes of order, costs and injunctions to 13 October 2006 and ordered each party to file and serve an affidavit particularising the claim that they each make against the other for costs and disbursements.

2. On 6 October 2006 the husband filed an Application in a Case seeking various orders including that he have a number of other items of personalty from the former matrimonial home.  The wife also filed an Application in a Case on 13 October 2006 in which she sought an order, inter alia, that the husband not be permitted to attend at her home (to collect the items of personalty).

3. On 13 October 2006 the Judicial Registrar accepted that because no order had yet been made the husband was able to pursue his application for the further items of personalty, but his Honour called in a Registrar to attempt to mediate this issue, as well as the wife’s refusal to allow the husband to collect any items of personalty.  The mediation occurred and as a result the husband advised the Judicial Registrar that he no longer pursued his application, not only in relation to the further items of personalty that he sought, but also as to the items of personalty that he was to have pursuant to the proposed orders of the Judicial Registrar.  The Judicial Registrar then indicated that he would make orders in terms of the proposed minutes, excluding the order in relation to the items of personalty, and that he would strike out the husband’s application for the further items of personalty.  The Judicial Registrar made the order striking out, but it was not until 27 October 2006 that the Judicial Registrar formally dismissed the husband’s application.

4. In these circumstances I queried with the husband during the hearing whether it was open to him to seek a review, but on reflection there can be no issue about that.  A review is a review of an exercise of delegated powers by the Judicial Registrar, and in this case the Judicial Registrar has exercised his powers by not making any order as to the contents of the shed, and by striking out and then dismissing the husband’s application.  Thus, the review is validly before me.

5. The husband now seeks that he have the contents of the shed at the former matrimonial home, some of the items set out in the valuation of Mr R dated 19 July 2006 under the heading of “valuation of vehicles and equipment”, save and except for the Mazda RX3 motor vehicle which the husband already has in his possession (see Exhibit W35 before the Judicial Registrar).  The husband says that he had accumulated these items over many years, and he requires them to enable him to pursue his handyman and repair activities.

6. The wife does not dispute that these items were accumulated by the husband or that he has a use for them.  Her case was that she did not want the husband to come onto her property and she seeks to retain these items and pay out the husband for the same.

7. I find that the husband should have all of these items of personalty and I will frame an order as best as I can to address the wife’s concerns, although frankly I do not accept that there a need for any safeguards to be put in place.

The application by F Pty Ltd

1. On 13 October 2006 the Judicial Registrar ordered that of the sum of $36,680.00 that the husband was to pay to the wife, the sum of $6,628.73 be paid into a trust account held by the Family Court of Australia pending finalisation of the Form 2 Application in a Case filed by F Pty Ltd.

2. The husband complied with this order and the said sum is still being held in a trust account on behalf of the wife by this Court.

3. F Pty Ltd previously acted for the wife.  Ms F then sought payment of her costs but the wife disputed the same.  Ultimately Ms F’s costs were taxed and on 14 August 2003 a Certificate of Taxation was issued by this Court certifying that the amount payable by the wife to Ms F was $5,104.05 inclusive of the costs of taxation.  Since then F Pty Ltd has been attempting to enforce payment of this amount both through this Court and through the Adelaide Magistrates Court.

4. The application that is now before me in relation to this issue is the Amended Application in a Case filed by Ms F on 1 August 2007.  The wife filed a Response to her application on 3 September 2007.  However, when the matter was heard on 4 September 2007 Ms F sought the orders set out in paragraph 11 hereof.

5. The issue here is that Ms F wants her costs paid together with interest.  The wife opposes that saying that Ms F either did not do the work or if she did she did it incompetently.  However, as I have explained to the wife her opposition is ill-conceived.  The simple fact is that there is a Certificate of Taxation and the wife has not paid the amount due.  Ms F is entitled to enforce payment of that sum and nothing that the wife has now put to this Court can prevent that.

6. There is no doubt that Ms F is entitled to the amount sought including interest thereon calculated in accordance with the Family Court Rules 2004.  It is also appropriate that Ms F be paid out of the money due to the wife as a result of the order for property settlement.  Ms F clearly has a lien over the proceeds of that litigation (Jones and Casswell (1993) FLC 92-364; Twigg and Twigg v Keady and Keady (1996) FLC 92-712; and Eager and Eager (1997) FLC 93-781) or in the alternative the intervener is entitled to the orders sought pursuant to the inherent jurisdiction of this Court (Molier and Van Wyk (1980) FLC 96-911).

1. Of course, interest has continued to run since the hearing and the total interest now payable is $2,420.79 (see Exhibit OP1).  The principal amount is $5,104.05, and thus the total amount payable by the wife is $7,524.84.

I certify that the preceding
256 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland
the 26^th day of March 2008.

……………………………………….
Associate