Trendor & Trendor (No 2)
[2024] FedCFamC1F 842
•5 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Trendor & Trendor (No 2) [2024] FedCFamC1F 842
File number(s): BRC 5389 of 2016 Judgment of: BAUMANN J Date of judgment: 5 December 2024 Catchwords: FAMILY LAW – PROPERTY – Assessment of contributions – Modest pool – Final property adjustment orders made Legislation: Family Law Act 1975 (Cth) ss 75, 79 Cases cited: Hickey & Hickey (2003) FLC 93-143
Trendor & Trendor [2018] FamCA 944
Division: Division 1 First Instance Number of paragraphs: 119 Date of last submission/s: 7 April 2022 Date of hearing: 10–12 March; 7 April; 9–10 August and 4 November 2021 Place: Brisbane Counsel for the Applicant: Litigant in person Counsel for the Respondent: Ms R Horsley Solicitor for the Respondent: DA Family Lawyers ORDERS
BRC 5389 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TRENDOR
Applicant
AND: MS TRENDOR
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
5 DECEMBER 2024
THE COURT ORDERS ON A FINAL BASIS:
Sale proceeds from S Street, Suburb L
1.That this Order shall act as authority for the wife’s solicitors to distribute the funds in the DA Family Lawyers Pty Ltd ATF Ms Trendor and Mr Trendor account with BSB … and account number …92, subject to Order 11 as follows:
(a)$854,600 to the wife;
(b)$295,400 to the husband; and
(c)As to any balance remaining, including interest that has accrued on the investment, as to 75% to the wife and 25% to the husband.
Other
2.That unless otherwise specified in this Order and within fourteen (14) days from the date of this Order, the husband and wife shall do all acts and things and sign all documents as may be necessary and required to close all accounts in the joint names of the husband and the wife, and upon closure any funds held in such accounts shall be distributed to the wife and become the sole property of the wife to the exclusion of the husband.
3.That the husband retain all right, title and interest in and to, and the wife relinquish any claims she may have against the husband in respect of the following:
(a)All of the husband’s superannuation and pension entitlements;
(b)The husband’s interest in and to the following:
(i)T Pty Ltd, and for that purpose the husband and wife shall do all acts and things and sign all documents as may be necessary and required, at the husband’s cost, to transfer all of the wife’s right, title and interest in and to T Pty Ltd to the husband and for the wife resign as director of T Pty Ltd;
(ii)P Ltd.
(iii)U Ltd;
(iv)V Ltd;
(v)V Trust; and
(vi)W Ltd.
(c)Subject to these Orders, all monies held in all bank accounts in the husband’s name;
(d)All furniture and household effects currently in the husband’s possession or control;
(e)All of the husband’s shares including but not limited to the following:
(i)Y Ltd;
(ii)O Pty Ltd;
(iii)Z Pty Ltd;
(iv)AA Ltd;
(v)BB Company shares; and
(vi)CC Ltd.
4.That the wife retain all right, title and interest in and to, and the husband will relinquish any claims he may have against the wife in respect of the following:
(a)All of the wife’s superannuation and pension entitlements;
(b)The wife’s interest in and to the M Trust;
(c)All monies held in all bank accounts in the wife’s name;
(d)Motor Vehicle 1; and
(e)All furniture and household effects currently in the wife’s possession or control.
5.That the husband indemnify the wife and keep her indemnified in relation to any liability in the husband’s name or associated with any entity the husband has an interest in, including but not limited to:
(a)T Pty Ltd;
(b)P Ltd.
(c)U Ltd;
(d)V Ltd;
(e)V Trust; and
(f)W Ltd.
6.That the wife indemnify the husband and keep him indemnified in relation to any liability in the wife’s name, including but not limited to:
(a)Any liability in relation to the M Trust;
(b)Any credit cards in the wife’s name; and
(c)All monies owing to the wife’s father, Mr DD and EE Finance.
7.That unless otherwise specified in this Order and except for the purpose of enforcing the payment of any money due under this or any subsequent order:
(a)each party be solely entitled to the exclusion of the other to all property in the possession of such party as at this date;
(b)each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other;
(c)all insurance policies to become the sole property of the policy owner named herein; and
(d)each party be solely liable for and indemnify the other against any liability encumbering any items of property to which that party is entitled, pursuant to this Order and any and all credit cards, personal loans or other liabilities in that party’s name.
8.That in the event either party refuses or neglects to do any act or thing or to sign any document necessary to give effect to this order, then pursuant to s 106A of the Family Law Act 1975 (Cth), a Registrar of this Court is hereby appointed to execute all deeds and documents in the name of the Respondent and/or the Applicant and do all acts and things necessary to give validity and operation to the said Order.
9.That unless otherwise ordered, the transferee spouse or the spouse receiving the benefit of any Order shall prepare the documentation necessary to give effect to these Orders at their cost and be responsible for the payment of registration fees in relation to the transfer of the property to their name.
10.That unless otherwise ordered, any duty levied pursuant to the Duties Act 2001 (Qld) payable on transactions arising from these orders or any documents executed under these Orders be paid by the transferee spouse or the spouse receiving the benefit of the transaction.
Costs
11.That pending any costs application filed by the wife within twenty eight (28) days from the date of this Order, the payment to be made to the husband pursuant to Order 1(b) shall be stayed on the following conditions:
(a)If the wife files an application for costs, then payment to the husband shall be stayed until the application for costs is determined;
(b)If the wife does not file an application for costs within twenty eight (28) days, then the stay Order shall cease and payment to the husband shall occur;
(c)If the wife files and serves an application for costs, then the determination of the application shall occur by the following process:
(i)The wife’s application shall be supported by an affidavit which provides details of the quantification of costs, together with any written submissions;
(ii)The husband shall file and serve within fifty six (56) days of this Order, any response or cross application supported by an affidavit and written submissions;
(iii)The wife shall within seventy (70) days of this Order, file and serve any written submissions strictly in reply; and
(iv)Unless otherwise ordered, any application for costs shall be determined on the papers in chambers.
12.That all outstanding Applications and Responses are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Trendor & Trendor has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODUCTION
These proceedings involve competing proposals for alteration of property interests between the Applicant, Mr Trendor (“the husband”), and the Respondent, Ms Trendor (“the wife”), as well as an application by the husband seeking a child support departure order.
As these Reasons will demonstrate, this case has had numerous delays and difficulties.
STATUTORY PATHWAY
Shortly stated, but more concisely and elaborately described in the Full Court decision in Hickey & Hickey (2003) FLC 93-143, in a property settlement case, the Court must adopt a well-known four-step process, essentially:
(a)to identify the pool of assets and liabilities generally, and usually at the time of hearing;
(b)to assess the relative contributions of both the financial, non-financial, direct and indirect nature as specified by s 79(4) of the Family Law Act 1975 (Cth) (“the Act”);
(c)to consider the factors as are relevant contained in s 75(2) of the Act; and
(d)finally, consider the ultimate analysis to determine whether the order the Court proposes to make is just and equitable to both parties.
As the only child of the relationship, X, turned 18 years in 2022, the Court’s jurisdiction is no longer enlivened to make parenting orders. With final submissions delayed until the husband’s written submissions of 7 April 2022, X’s eighteenth birthday was less than one year later. Little is now served in making findings about the disputed parenting issues. X is a much-loved child of the parties who had not spent time physically with the father for many years.
X’s management of his medical condition – an issue of significant dispute between the parents and requiring evidence from Dr FF, Dr GG and educator Ms HH is now entirely a matter for him as an adult. The family report of Ms JJ (who was also required for cross-examination) was most helpful in recording the views and wishes of X, who had been caught in the intense conflict arising from his parents’ separation.
The father had acknowledged that the mother had been the primary, almost exclusive carer for X since separation in April 2015. All the evidence demonstrated she was a devoted and vigilant parent helping X to navigate his life’s adolescent challenges with a serious health condition. I do not doubt that the father deeply loves his son, but the father’s inability (the mother would say reluctance) to travel to Australia meant that physical interaction between X and his father has not taken place since 2018 – to the disappointment and confusion of X.
Now that he is an adult, it is to be hoped that X will find a way to reconnect with his father (probably outside of Australia) as his father has much to offer him, including a chance to engage with a younger sibling born in City J in 2019.
SUCCINCT HISTORY OF THE RELATIONSHIP
Statements of fact hereafter shall be construed as findings of fact.
The husband was born in the United Kingdom in 1967 and the wife was born in Australia in 1969.
The parties met in the United Kingdom in 1996 and commenced cohabitation shortly thereafter, before marrying in 1997. The parties separated in early April 2015, with the mother and the children leaving the former matrimonial home. The mother’s email of 15 April 2015 explained her decision to separate whilst the husband was overseas and was decisive.
At the time of the hearing before me, the wife had not re-partnered. The husband had re‑partnered and married Ms KK in 2017, with a child of that union having been born in 2019.
The parties were blessed with two children, Ms H born in 1999 and X born in 2004. At the time the hearing concluded before me in November 2021, Ms H was 22 years and X was turning 17 years.
In 2009, the family relocated to Australia, and the parties purchased the matrimonial home at S Street, Suburb L, Queensland (“the Suburb L property”) in 2009. Although the husband contends the move to Australia was on a “test basis”, the reality is that neither party lived anywhere else until the husband ultimately moved overseas to City J in 2018. There were, however, periods where the husband was required to travel internationally for work. The husband effectively lived in City J since about the time of separation, returning to Australia on occasion.
At the time of trial, both parties claimed to be unemployed. The wife has not been in full-time paid employment since 1999/2000 when the parties’ oldest child was six months of age, although she undertook part-time work between 2002 and 2009 performing administrative duties for the parties’ companies. The wife points to chronic pain which affects her ability to work (at paragraphs 16 to 24 of the wife’s affidavit filed 18 February 2021), which will be discussed in further detail later in these Reasons. In his affidavit filed 24 February 2021, the husband lists his occupation as “[finance professional]”.
The parties each assert, against the other, a failure to make full and timely disclosure, such that the identified pool of current assets does not, they both say, accurately represent their wealth. This issue shapes the outcome of these property proceedings.
BRIEF PROCEDURAL HISTORY
On 7 June 2016, the husband commenced proceedings in what was then the Federal Circuit of Australia, seeking property and parenting orders.
On 25 July 2016, being the first return date of the husband’s Application, various interim consent Orders were made (including in relation to interim parenting arrangements) and which included provisions for the sale of the Suburb L property. Following the payment of particular expenses, the balance of the proceeds of sale were to be held in the wife’s solicitor’s trust account for the husband and wife pending agreement between the parties or further Court order. After competing applications for machinery orders, including the appointment of a trustee for sale to effect the sale of the Suburb L property, the property was ultimately sold in early 2018 for $1,440,000. After the payment of expenses, the remaining proceeds of sale were deposited into the wife’s solicitor’s trust account.
On 20 September 2017, further interim consent orders were made to facilitate the sale of the Suburb L property, including the appointment of Mr LL as trustee for sale, and for each party to receive $100,000 from the remaining proceeds of sale, with the characterisation of such payments reserved to the trial judge.
On 10 May 2018, the proceedings were transferred to this Court.
By way of Application in a Case filed 22 June 2018, (amended 19 July 2018) the husband sought a lump sum spouse maintenance payment of $110,480 from the proceeds held in trust, or alternatively that such payment be characterised as a partial property settlement; a dollar-for-dollar order; and for the first time, a child support departure order. In the wife’s Response filed 13 July 2018, she sought the Application be “permanently stayed until such time as the [husband] personally appears before this Court and otherwise the Application be dismissed”.
When the Application in a Case came before me on 20 July 2018, both parties appeared represented by experienced Counsel. The husband however was not present and was still in City J. On this date I stayed the Application in a Case pending the husband’s personal appearance before the Court and adjourned the Application to 6 August 2018 for further hearing. I reserved my judgment in relation to the husband’s Application in a Case.
For Reasons delivered on 20 November 2018 (see Trendor & Trendor [2018] FamCA 944), the husband’s applications for spouse maintenance, partial property adjustment and/or an order for litigation funding were dismissed. Further Orders were made in relation to the appointment of a single expert witness to report on the value of the property, including a forensic analysis of all bank and investment accounts as and from 24 December 2007, with the costs of the expert to be paid from the funds held on trust, to a limit of $50,000. The parties subsequently appointed Mr B of C Accountants to prepare the expert report. The matter was otherwise adjourned back to the Registrar’s list on a date to be advised.
The Reasons delivered identified at [7] some disputed factual issues, most of which remained in dispute at the final hearing, being:
(a)what funds were transferred to the wife and available to her in 2008?
(b)what funds were available to the parties at the time they relocated to Australia?
(c)what funds have been spent by the wife since separation?
At [10] to [26] of the earlier Reasons, various concessions and findings on the then available evidence offered for the interim proceedings were made. The wife’s trial material maintained the assertions made at the interim hearing.
This fundamental dispute caused the Court to order that a single expert forensic accountant be appointed to “report on the value of the property, including a forensic analysis of all bank and investment accounts held by the parties’ sole and/or joint names and/or in the name of related entities as and from 24 December 2007 to the current date”. Mr B was ultimately appointed, and the results of his engagement are referred to later in these Reasons. As might have been anticipated, he was the subject of detailed cross-examination by the husband; further questions were raised after he gave evidence, and a further report was produced.
At the interim hearing on 6 August 2018, the husband was not present, he being in City J. The reason for his non-attendance is explained by the arrest of the husband in late 2017 pursuant to a Departure Prohibition Order (“DPO”) against him relating to arears of child support. The husband, who has relevant professional training, clearly found the actions by the Child Support Registrar as an act of criminality – unlawfully retaining him against his will and in circumstances where he was only able to leave Australia at that time by making a suitable payment arrangement, but effectively vowing to never return to Australia.
Furthermore, the husband gave evidence at the trial that with the assistance of a “no win/no fee” United Kingdom legal team, he had commenced proceedings in the United Kingdom Supreme Court against the Australian government seeking damages for unlawful detention, torture and other relief, with a claim level of £10 million. The husband gave me the clear impression that the wife, herself a person with similar qualifications, had caused the DPO to issue and furthermore has maintained conduct designed (with the assistance of her lawyers) to sabotage his international business reputation and career. These somewhat entrenched beliefs held by the husband made the conduct of the trial more difficult.
Whilst interim Judgment was reserved, the husband filed a further Application on 5 November 2018 seeking the following orders:
Removal of Garnishee, damages and payments of costs incurred on an indemnity basis
1.That the ex parte application for a garnishee order taking away the entirety of the applicants capital and cash made by the Child Support Agency and improperly sought by same and granted without notice is removed and indemnity costs for improper conduct awarded to the applicant.
2.The monies taken from the applicants account namely $9,443.53 be paid back together with the monies extorted in [late] 2017 namely $4,547.40 to the Applicants WestPac Bank account together with interest.
3.That indemnity damages be paid by the Child Support Agency and WestPac Bank to the Applicant for improper conduct, failure to follow either due process or the Civil Procedure rules and extensive mental stress injury. Quantum to be decided by this honourable Court.
2That the Child Support Agency be prevented from making applications or securing monies until a proper judgement is reached in the Family or Federal Court.
Department of Human Services – Child Support Agency assessment
Departure order and Stay of Collection
1.Pursuant to Section 117 and 118 of the of the Child Support (Assessment) Act (Cth) 1989 there be a departure from the Administrative Assessment of the child support payable by the Applicant for the child [X] for the periods 26 July 2017 to 21 September 2017 and 22 September 2017 to 30 September 2017 and 1 October 2017 to 2 December 2017 and 3 December 2017 to 31 December 2018 and an adjusted child support amount be set at $Nil per calendar month.
2.That pursuant to Section 111C(3) of the Child Support (Registration and Collection) Act the child support assessment for the period from 3 December 2017 to 31 December 2018 by the Child Support Registrar be stayed, pending further Order AND IT IS REQUESTED that the Registrar remove any Departure Prohibition Order for [Mr Trendor].
3.That the Child Support Agency and Westpac Bank pay the Applicant's costs of and incidental to this application.
(As per the original)
When the matter was before me for delivery of Judgment on 20 November 2018, that Application was also adjourned back to the Registrar’s list.
After the husband filed a Notice of Address for Service for an address for service in Australia on 11 June 2019 (being his solicitors at the time), on the same date the Registrar referred the matter for the allocation of a final hearing. At this stage, the single expert report had not yet been prepared by Mr B, and an Order was made in chambers for the parties to have liberty to have the proceedings re-listed upon the filing of Mr B’s report. As a consequence of Mr B’s report being filed on 11 June 2020, the matter was then re-listed before the Court on 12 August 2020, at which stage Orders were made for the preparation of child’s wishes report and the matter was adjourned to 2 November 2020, when it was anticipated at least the property proceedings would be listed for final hearing.
When the matter returned to the Court on 22 September 2020 with the benefit of Mr B’s valuation report (and the child’s wishes report), because the parties raised that they wished to clarify some points of that report with the single expert, an Order was made granting leave for the parties to seek to clarify the valuation report by asking questions of the single expert witness, with such questions to be put to the expert by 6 November 2020. The proceedings (in relation to both property and parenting matters) were also, on this date, set down for a three day trial commencing 17 March 2021, with the matter to return to my list on 10 December 2020 for the making of trial directions.
On 10 December 2020, trial directions issued, with provision for the husband to file, if he so wished, an Application to participate in the trial electronically, because of Covid-19 restrictions or otherwise. The husband filed such Application on 2 February 2021, which was granted by Order of 10 February 2021.
HOW THE TRIAL PROCEEDED
The first tranche of the final hearing proceeded over 10, 11 and 12 March 2021, with the Applicant husband representing himself and appearing by video-link from City J, and the Respondent wife being represented by Ms Horsley of Counsel. Over these three days, the husband and a number of witnesses were cross-examined.
For the reasons given orally on the first day of trial on 10 March 2021, I dismissed the husband’s application for a child support departure order contained in his minute of final orders sought filed 3 March 2021.
On 12 March 2021, with the husband still being under cross-examination, the trial was adjourned part-heard to 7 April 2021 for two further days. Also on this date, the following relevant Orders were made:
1.That the husband can provide questions for [Mr B] to the wife’s solicitors by 4.00pm on 16 March 2021.
2.That the wife’s solicitors have forty eight (48) hours thereafter to consider their position in respect of those questions. If their position is that the questions can be put to [Mr B], then those questions can be put to him. However, if the wife wants to be heard on those questions, the matter will need to be listed so that the wife may be heard on those questions.
…
6.That the parties are permitted to have a copy of the transcript of [Mr B’s] evidence.
As a result of Orders 1 and 2 made 12 March 2021, the matter was-relisted before me on 25 March 2021 and the following relevant Orders were made in relation to Mr B:
1.That [Mr B] receive questions 1 through 3 only which are as follows:
1.As briefed part of the Stock Lending transaction in 2015 required pledging of bank and broker accounts. This has not been recognized in the schedules?
2.I refer to the following sent on 15th May 2020:- [Country NN] regulations on pledging (in particular of bank accounts);- Pledging of equity accounts- Pledging register of [City MM];- [N Bank] letters
Can you confirm this extinguishes the highlighted sections in reference to the Husband in your schedule 6?
3.Appendix C of the stock loan agreement gives detail of the pledges and the registration in [Country NN]. Why is this not reflected?
2.That the additional costs of [Mr B] in answering those questions are to be met by the funds in trust, at first instance, with leave to argue as to contribution in final submissions.
3.That the Registry shall send a copy of this Order to [Mr B].
4.That no further correspondence is to be entered into with [Mr b].
5.That [Mr B] shall, if possible, provide answers to the questions by 12.00pm (noon) on 1 April 2021.
When the trial resumed on 7 April 2021, the husband failed to appear before the Court on the video-link. Despite attempts made by the wife’s legal representative that day to contact the husband, he was unable to be reached. Emails sent by the husband to the Court (marked Exhibit 24) indicated:
Unfortunately over the Easter weekend break a COVID-19 infection took place with my daughters' playgroup.
The [City J] Government regulations require all members of that playgroup together with the people who share a house with them (that being me, my wife and our flat sharers) enter a government quarantine facility for 2 weeks from tomorrow, 7th April 2021.
The quarantine rules do not allow video conferencing and only give one room per family. The whole families are actually showing symptoms of respiratory issues and at the moment the health officers are suggesting we go to hospital (to be confirmed).
I apologise but I will be unable to use Microsoft Teams tomorrow.
I will send through more details when I have them.
…
And by way of update at 6.00pm City J time:
I confirm (as at 6pm [City J] time) that my family and I are now in the process of being transferred to hospital. I am typing this email remotely and do not have the ability to sign.
I am currently unsure what is going to happen or if I will have any means of communication tomorrow. I am also unsure how long this hospitalization will last.
Once again I apologise to all concerned. As I trust the Court will appreciate these acts are outside my control.
…
The trial was subsequently again adjourned part-heard to 9 and 10 August 2021 and the matter also listed for case management hearing before me on 7 July 2021. The husband again failed to appear before the Court on 7 July 2021, later claiming he was unaware of this Court event. On this date, Orders were made confirming the trial remained listed to recommence on 9 August 2021 for two days, and that if the husband required Mr B to be available for cross‑examination, he was to advise the wife and Mr B accordingly.
Days before the trial was to resume, the husband filed an Application in a Case on 6 August 2021 seeking to discharge the single expert, Mr B.
For brief oral reasons given on 10 August 2021, I dismissed the husband’s application for Mr B to be discharged.
The part-heard trial proceeded on 9 and 10 August 2021, however an issue arose as to the wife’s interests in a family group known as the “[OO Group] entities”, causing the Court to order the wife to file an affidavit by a person familiar with the OO Group of companies and trusts as to any interest, legal or equitable, the wife has or has had in the entities. As a result of this undisclosed interest (which the wife says she was not aware of at the time), further questions were required to be put to Mr B (see Exhibit 25). The matter was subsequently adjourned for a further case management hearing before me on 6 September 2021.
When the matter returned before on 6 September 2021, the husband was granted leave to file an affidavit of himself sworn 5 September 2021, and each party was restrained from filing any further affidavits (save for an affidavit of Mr PP of QQ Accountants in relation to the OO Group entities). The matter was further adjourned to 5 October 2021 for Case Management Hearing (after it was expected the accountant’s report as to the OO Group entities would have been received), when it was anticipated the matter would be set down for a further two days in November 2021 to conclude the final hearing.
On 5 October 2021, the husband again failed to appear before the Court electronically or in person. Orders were made for the husband to file any affidavit in reply to the affidavits of the wife filed 24 August 2021 and Mr PP of QQ Accountants filed 13 September 2021, and the part-heard trial was set down for a further two days commencing on 4 November 2021.
The trial proceeded and concluded on 4 November 2021, with all cross-examination being completed and orders made for the filing of written submissions, and judgment otherwise being reserved.
Despite filing submissions as ordered, whilst Judgment was reserved, on 17 February 2022 the husband filed an Application in Proceeding seeking “[l]eave to serve submissions in response to [the wife’s] submissions and response to submissions”. This Application was listed before me on 1 April 2022 and Orders were made on this date for the husband to file, within seven days, further written submissions in reply not exceeding 15 pages in length and without annexures, and the wife to be at liberty to file written submissions in response within 14 days thereafter. The husband filed his further submissions as ordered, with the wife opting not to file any further submissions.
The Court expresses its regret in the delay in the publication of these Reasons.
MATERIAL RELIED UPON
The husband
For the financial proceedings, the husband relied upon the following material which I have considered:
(a)His amended Initiating Application filed 3 March 2021;
(b)Financial Statement filed 8 March 2021;
(c)Affidavits of himself filed 17 February, 24 February, 6 September and 4 November 2021;
(d)Affidavit of himself filed 6 August 2021;
(e)Case outline filed 3 March 2021;
(f)Submissions filed 12 January and 7 April 2022.
The wife
For the financial proceedings, the wife relied upon the following material which I have considered:
(a)Amended Response filed 17 February 2021;
(b)Affidavit of Dr RR filed 17 February 2021;
(c)Affidavits of herself filed 18 February and 24 August 2021;
(d)Financial Statement filed 25 February 2021;
(e)Affidavit of Mr PP filed 13 September 2021;
(f)Case outline filed 3 March 2021;
(g)Submissions filed 12 November 2021; and
(h)Reply submissions filed 21 January 2022.
EXPERT REPORT OF MR B
As earlier indicated, on 20 November 2018 an Order was made by the Court allowing for the appointment of a single expert to conduct a forensic examination of available records and Mr B of the firm C Accountants was ultimately selected by the parties.
At paragraph 64 of the written submissions filed by the wife on 12 November 2021 (“the wife’s primary submissions”), a timeline, which I adopt as broadly accurate, is given – setting out the processes before the report of Mr B was published on 2 June 2020. Neither party submitted any questions to Mr B after the release of the report, which was annexed to Mr B’s affidavit filed 11 June 2020.
Mr B was the subject of cross-examination on 11 March 2021 (until 5.27pm).
Subsequently on 25 March 2021, after hearing submissions from the parties, the Court ordered:
1.That [Mr B] receive questions 1 through 3 only which are as follows:
1.As briefed part of the Stock Lending transaction in 2015 required pledging of bank and broker accounts. This has not been recognized in the schedules?
2.I refer to the following sent on 15th May 2020:- [Country NN] regulations on pledging (in particular of bank accounts);- Pledging of equity accounts- Pledging register of [City MM];- [N Bank] letters
Can you confirm this extinguishes the highlighted sections in reference to the Husband in your schedule 6?
3.Appendix C of the stock loan agreement gives detail of the pledges and the registration in the [Country NN]. Why is this not reflected?
2.That the additional costs of [Mr B] in answering those questions are to be met by the funds in trust, at first instance, with leave to argue as to contribution in final submissions.
3.That the Registry shall send a copy of this Order to [Mr B].
4.That no further correspondence is to be entered into with [Mr B].
5.That [Mr B] shall, if possible, provide answers to the questions by 12.00pm (noon) on 1 April 2021.
6.That the costs of today be reserved.
7.That noting that upon enquiry by the Court, the husband says that there are a further five (5) documents that he may wish to put to the wife during her cross-examination by him, he is directed, through liaison with the chambers of the Honourable Justice Baumann, to ensure the documents that he may wish to put to the wife are electronically sent to the chambers of the Honourable Justice Baumann by 29 March 2021.
8.That the documents received by the chambers of the Honourable Justice Baumann from the husband shall be provided to the wife’s solicitors.
Mr B prepared a supplementary forensic accountant’s report in the matter, published 1 April 2021 and annexed to his affidavit filed 7 April 2021. Mr B was further cross-examined on 9 August 2021 by the husband. That brief cross-examination reveals little challenge at all to the opinions expressed by Mr B in his supplementary report, with the husband’s clear focus being an alleged conflict of interest, because a different member of the firm C Accountants had been retained by external accountants for the OO Group to value 20 “E” class shares in that Group. As discussed below, the OO Group is a number of entities controlled by the wife’s father and other family members.
The husband “seized” on this issue in an attempt to challenge the opinions expressed by Mr B, even seeking his discharge as a single expert – all unsuccessfully.
I comfortably accept the opinions expressed (and tested) provided by Mr B, whose integrity and credibility was not in any manner tarnished by the husband’s attempts to do so.
I further reject the criticisms by the husband of both the process undertaken of Mr B (summarised at paragraphs 66 to 72 of the wife’s primary submissions) and the reasons why Mr B was unable to finalise his report. As Mr B himself noted in his evidence, the parties did not pay him to complete or undertake further analysis of a significant number of additional documents. At paragraph 77 of his final written submissions filed 7 April 2022, the husband asserted that:
77.The facts, which again were not disputed, was that the [C Accountants] report was incomplete and ‘shut down’ by W without agreement or consultation because no further funds were available to complete the report and because H was sending documents to [C Accountants] of the largest matrimonial assets which did not fit into W’s legal strategy!
There is always limitations in analysis by even the most expert forensic accountants that arise from:
(a)the quality and accuracy of documents provided; and
(b)how much money (in this case capped at $50,000), the parties are able and prepared to expend on the exercise.
I have reached a conclusion that, doing the best he could on what was provided, the Court can generally accept the opinions expressed by Mr B in his two reports, which I summarise as follows, and in so doing, do not incorporate every detail of the voluminous analysis undertaken, namely:
From the report published 2 June 2020
(a)From information provided, he was unable to draw a conclusion as to the value or ownership of:
(i)Shares in SS Ltd;
(ii)Shares in CC Ltd;
(iii)Shares in TT Company; and
(iv)Shares in UU Company.
(b)The shares in SS Ltd have been held by numerous entities across the period and undertaking a tracing exercise as to the movement of same had not been possible without receiving further disclosure;
(c)The expert had not been provided with sufficient documentation regarding a number of entities associated with the husband and wife to draw a conclusion as to the value of any interest the parties may have in the following:
(i)OO Pty Ltd/VV1 Pty Ltd;
(ii)VV2 Pty Ltd;
(iii)WW Pty Ltd;
(iv)P Enterprises Ltd/P Ltd;
(v)V Ltd;
(vi)V Trust; and
(vii)W Ltd.
(d)At paragraph 2.2 of his report, Mr B concluded the value of assets transferred to Australia between September 2007 and December 2009 to be AUD$3,594,135 (GBP£1,691,838) as being the accumulation of five separate transfers identified at 2.3.1;
(e)At paragraph 2.6 of the report, Mr B provides his estimate of the “current matrimonial pool”. I have considered that opinion, but ultimately it is for the Court to determine the pool of interests and liabilities as step one in the analysis earlier identified;
(f)At paragraph 2.8 of his report, Mr B confirmed that the husband had advised him “that the balance of the loan owing to [P Enterprises Ltd/P Ltd] has increased to $1,257,000 however, I have not been provided with any substantiating documentation evidencing this increase”;
(g)Having undertaken a review of the “matrimonial pool annually from June 2007 to June 2018, he noted at paragraph 2.10 of the report (table 3) the nett assets reduced from $5,812,912 (June 2007) to $1,139,834 (June 2018). With the parties relocating to Australia in 2009, Mr B opined the asserted “balance at […] 2009” of $3,352,902 represents the balance following the parties’ arrival in Australia;
(h)At paragraphs 2.11.3 to 2.11.5 of the report, Mr B opined that:
2.11.3The substantial increase in net assets at June 2014 was as a result of a significant increase in the [SS Ltd] share price, increase from $[…] at June 2013 to $[…] at June 2014 (11x increase):
2.11.4The [SS Ltd] share price subsequently decreased in the 2015, and this was the primary reason for the substantial decrease in net assets at June 2015 (i.e., from $[…] as above to $[…] at June 2015 – 93% decrease); and
2.11.5The decrease in net assets held between June 2015 and June 2018 (i.e., from approximately $3 million to approximately $1.1 million in net assets), was primarily a result of:
(a)A reduction in cash balances both in the [M Trust] (approximately $907,000) and from the proceeds of sale of the [Suburb L] property (approximately $258,000);
(b)The reduction in shareholdings in [SS Ltd] (now [under a different name]) and [CC Ltd] (either through sale or transferring to noncontrolled entities) in the amount of approximately $360,000;
(c)Reductions in superannuation balances held by the Husband of approximately $205,000; and
(d)Increases in liabilities owed, specifically to the Wife’s father ([Mr DD]) of approximately $144,000.
From the report published 1 April 2021
(i)Mr B identified that the three questions provided by the husband revolves around the concept of a “pledge” said to be recognised in Country NN. After production of a “Pledge Agreement dated 5 May 2015”, at paragraph 2.3, Mr B identifies, correctly in my view, the terms of the pledge, revealing V Ltd as the creditor; the husband as the debtor and with the amount borrowed of AUD$50,000 secured over a bank account held with N Bank …88.
(j)During Mr B’s brief cross-examination on 9 August 2021, Exhibit 34 was tendered, which is a letter dated 16 March 2017 to C Accountants confirming that “account […88] has been closed since 17 February 2017 after the termination of the registered pledge”;
(k)From this report, the following almost unchallenged opinions of Mr B were provided:
(i)He had not been provided with any documents detailing the initial advance of $50,000, which the husband says he used to pay debts incurred in assisting his father whilst in intensive care and other United Kingdom matters, or any documentation detailing transactions that lead to the termination of the pledge agreement;
(ii)From a review of the assertions made in the husband’s affidavit of 17 February 2021, where the husband states that V Ltd “advanced monies against [SS Ltd] Stock pledged per the agreement in 2015” and the documents provided by the husband, Mr B said he was unable to verify a number of facts, identified at paragraph 2.8 of this report;
(iii)In circumstances where the pledge agreement was not originally disclosed by the husband and having reviewed an email between the husband and Mr XX dated 18 March 2021 (advising that up until that date details of the pledge agreement were confidential), any assets offered “as pledged property” etc have not been reflected in the earlier schedules.
(iv)With documents provided by the husband on 16 March 2021 (which appeared to be most of the documents identified at 3.5 of this report), Mr B accepts that the husband asserts that the pledging agreement may affect assets set out in Schedule 6 of his previous report, being:
(A)N Bank Account …88;
(B)V Trust; and
(C)V Ltd.
(v)At paragraph 3.10 of this report, Mr B confirmed he had still not been provided with any statements for this N Bank account, but that Schedule 6 should, in his opinion, have a nil balance;
(vi)In his first report, Mr B recorded various shares held by V Trust at June 2015 (arising from a produced Trust Deed), but in the absence of any evidence produced showing whether these shares were ultimately sold by the Trust he is unable to verify whether these shares were still held at June 2016 or any subsequent years;
(vii)Where Mr B has not been provided with any further documentation confirming the ownership by V Ltd of shares in P Ltd (which the husband says he personally acquired around 7 April 2016), he is unable to verify the husband’s assertion that V Ltd is an entity owned/controlled by Mr XX and that the husband has no personal interest in it; and
(viii)For the reasons identified at paragraph 3.10(j) to (n), the funds received of $50,000 and any corresponding liability were not reflected in the earlier schedule 6 balance sheet.
As earlier recorded, Mr B was not cross-examined on the contents of his supplementary report, by the wife or by the husband (save to the limited extent indicated), and his cross-examination on the first report on 11 March 2021 elicited the following further relevant opinions, inter alia:
(a)That he did not consider document sent by the husband on 15 May 2020 because of lack of funds, save he had looked at a YY Bank “closure statement” dated 24 October 2008 (marked Exhibit 13 – but I found it very hard to read);
(b)The expert had access to a judgment in the United Kingdom High Court in respect of litigation in 2008 against the husband by an entity called TT Company but its relevance was uncertain;
(c)Maintained his position in respect of paragraph 6.5.1 and why he disregarded the document dated 4 October 2008;
(d)The expert said the scope of his report was to actually look at balances at the end of each financial year and he did not do a detailed transaction analysis for every day in between – such as what happened to two motor vehicles;
(e)The husband’s assertion that he owes $120,000 to the Australian Taxation Office, which arose from a bonus the husband received form SS Ltd in 2012 (that had not been taxed at source), had not been considered by the expert;
(f)Because of lack of detail provided for N Bank card …99, or ZZ Bank …89, he was unable to determine the current debt owing; and
(g)The expert was unable to form a concluded view about any property in Country AB or City J.
Under cross-examination by the wife’s Counsel, Ms Horsley, Mr B said, inter alia:
(a)the correspondence sent to identify the scope of his report was discussed with a confirmation that after he had provided a draft report the husband sent further documents on 15 May 2020, but as set out in the expert’s email on 26 May 2020 and teleconference on 1 June 2020, the report issued on 3 June 2020;
(b)the husband had consistently asserted to Mr B that the wife had not made full disclosure, but that the husband could not provide further information at the time because of Covid‑19 restrictions in City J;
(c)items highlighted in yellow in schedule 6 of his report were the subject of requests to the husband and wife on multiple occasions for further information, which was not provided before 6 April 2020;
(d)by refence to his report, the expert confirmed that for some bank accounts he had only received partial bank statements although he did receive an account closure form for account …88 dated 29 April 2015 (marked Exhibit 14);
(e)on the basis of an assertion by Counsel for the wife that there were one million SS Ltd shares which were transferred from a stockbroking account in the husband’s name, to an AC Bank brokerage account in the husband’s name on 25 August 2014, and that those shares were still held by the husband at separation in April 2015, then they would have a value of 0.06 per share at 30 June 2015 ($60,000) and further, if the Court was satisfied there were a further approximately 1,900,000 SS Ltd shares held by OO Pty Ltd, then they would have a value of $113,921;
(f)by reference to paragraph 8.4.11 of the report, the view taken accords with Exhibit 15, produced and tendered;
(g)when the expert was directed to a document tendered as Exhibit 16, and from his examination of Westpac account …07 (which came from City J N Bank account …26), he opined there was no unidentified source of funds coming in from the United Kingdom for a similar amount to purchase the Suburb L property in mid-2019;
(h)although, because of a lack of information (some which may have been available in the documents sent on 15 May by the husband, he could not say if the “gap” in information the husband asserts exists.
The very detailed report of Mr B was not an “audit” as the scope of his instructions makes clear.
I am comfortably able to accept the opinions expressed by Mr B in both reports and in his cross-examination – noting the significant limitations relating to documents relied upon and produced up to April 2020.
It is entirely speculation whether, if funded by the parties to do so (which he was not), more analysis and further disclosure would make any material difference to his core opinions set out at earlier paragraphs of these Reasons.
WIFE’S INTEREST IN THE OO GROUP
I am satisfied that the wife failed to make timely and complete disclosure about various transactions associated with family interests generally described as the OO Group. Clearly, during the course of the relationship, the husband was aware the wife’s father was a man of some means, and although he raised this issue at times, there was no disclosure or fulsome acknowledgement by the wife in her early Financial Statements or affidavit.
I accept, to some extent, the parties (including the many different lawyers the husband retained and the wife’s lawyers), were distracted by issues arising from parenting arrangements for X; child support issues and other disclosure issues. However, it became apparent to the Court during the part of the trial conducted in August 2021, that more evidence was required from the wife about any family interests (see the Order made 10 August 2021) and subsequently further affidavits were filed and relied upon, namely:
(a)an affidavit of the wife filed 24 August 2021; and
(b)an affidavit of Mr PP filed 13 September 2021.
When the trial resumed for the last time on 4 November 2021, the wife was cross-examined by the husband on her failure to disclose – saying relevantly she had forgotten she had signed transfer of shares, being:
(a)in AD Pty Ltd – 10 E class shares on 2 February 2016; and
(b)in OO Investments Pty Ltd – 10 E class shares on 2 February 2016,
for a consideration each of $10 and $1 respectively.
Mr PP deposed to being a partner of QQ Accountants in Australia and that from at least 1985, his firm has been engaged by the wife’s parents to provide tax and accounting services to them personally and to entities “controlled by them”. In a very detailed affidavit comprising 206 pages (inclusive of annexures), Mr PP gives:
(a)details of shares in various family entities previously owned (paragraph 11);
(b)particulars that as a child of Mr DD and Ms AE, the wife appears to fall within the class of “Specific Beneficiaries” contained in the schedule to the AE Nominees Trust; and
(c)evidence that although he was not aware of documents recording any dividends paid to the wife, an examination of available historical documents revealed some income distributions for the six years between 30 June 1987 and 1992, as set out in paragraph 13 totalling a gross sum of $122,014.
Where Mr PP was not the subject of cross-examination, I comfortably accept his evidence corroborated by many documents.
The wife said that when she became aware, after a meeting with her parents on the evening of 4 April 2021 when she showed them ASIC company searches she had conducted, they volunteered a relevant valuation of shares prepared by C Accountants in early 2016. The wife caused her solicitors to make further disclosure to the husband that day.
It is hardly surprising, when the husband has been accused of a failure to disclose, that he seized upon the wife’s admission to support his assertions of her non-disclosure.
However, by the end of the evidence, I was satisfied the wife had made full disclosure and the real point became, whether her interest as a discretionary beneficiary is relevant in determining either the pool of interests or, as a factor under s 75(2).
In his written submissions filed 12 January 2022 (at paragraphs 82 to 88), the husband contends they are relevant both in determining the pool of interests, but also as a financial resource including:
(a)expected future inheritance;
(b)potential future distributions; and
(c)the wife’s ability to save funds by borrowing, because of the support of her family.
The husband’s submissions were not in reply to the wife’s submission, where at paragraph 78, for the reasons articulated, the wife contends no inclusion in the pool of any contingent interests is appropriate.
In this regard, in written submissions filed 21 January 2022 “on the law and facts”, the wife correctly, in my view, points to the evidence from the wife, which I accept, summarised at paragraph 6, about loans made to her by her generous family post separation. I also accept the wife’s submissions at paragraph 7 that the husband’s suggestion (at paragraph 90) that the wife has “access to … tens of millions from the [OO Family Trust]”, is at odds with the unchallenged evidence of Mr PP.
For completeness, the evidence before the Court does not support a finding, as the husband seeks, that the wife has an expected inheritance. For example, no evidence of the testamentary intentions of the wife’s parents is offered, and further, no evidence of impending death is before the Court.
Whilst I can accept that, like many Australian parents, if they can assist their children financially, they do so, the wife has no expectation it will consistently occur and the husband through the act of marriage is not entitled to “a share”.
These findings will be reflected in the pool of interests and consideration of s 75(2) factors.
FAILURE TO DISCLOSE BY THE HUSBAND
The wife submits (at paragraph 120) that the husband’s disclosure has been “abysmal” and points to the particulars at:
(a)paragraph 122 – husband’s Financial Statement;
(b)paragraph 123 – matters the wife says remain unclear;
(c)paragraph 124 – inconsistencies in the husband’s evidence as to share dealings; and
(d)late revelation of the “pledge agreement” and a statement said to be given by Mr XX on 10 August 2021 (Exhibit 31).
Furthermore, the wife submits that the husband has attempted to mislead the Court (paragraph 130) and is an unreliable witness.
Even if I take into account, as I do, the husband’s lack of representation at times and the difficulties evident from the transcript of getting documents in a timely fashion, the fact the husband resides in City J and had health issues (including serious effects of Covid-19 requiring hospitalisation) and his general attitude that the wife had all the documents and she was, not him, a selective discloser, I have formed the view that:
(a)the husband did not make timely disclosure;
(b)although difficult to assess via video, I did not find the husband an unreliable historian, however many facts he asserted failed the evidentiary onus that he carried; and
(c)the proceedings involved not necessarily a lack of disclosure (for hundreds of pages were produced by both parties) but at times (as Mr B opined) partial or incomplete disclosure was apparent.
Although on balance the husband was the major contributor to these inadequacies, the wife must also accept some responsibility as well.
In this regard, I feel compelled to observe that the legal team retained by the wife, unlike the various participants for the husband, were persistent in their enquiries and requests. I saw no evidence that the husband’s, at times, delays caused frustration to arise or less than appropriate professional conduct by the wife’s solicitors (and it seems to the retained Counsel) to be demonstrated.
However, other than being able, in accordance with authority, to treat evidence given by a party found not to have complied with the duty to disclose more “robustly” or less cautiously, it becomes the duty of the Court to make findings on the evidence.
The Court is entitled, of course, to make inferences if a reasonable foundation exists, but it cannot simply leap to a conclusion sought about what interests may now exist (the task to be undertaken in these Reasons next) merely because there is a level of uncertainty.
As I next explore, the way in which the husband has operated in the commercial world, either in Australia or mostly overseas in Asia (particularly City J), is littered with uncertainties.
POOL OF INTERESTS
The competing perspectives meant that notwithstanding the assistance offered by the C Accountants reports, there was little capacity for the parties to even attempt to agree (as is so often achieved) on a “joint balance sheet”.
Compounding this difficulty is the husband’s clear failure to engage with the wife’s submission at paragraph 86 of what should constitute the pool of interests. As will become apparent, and despite protests about how wealthy these parties may have been in the United Kingdom, ultimately, I find the interests modest.
Before dealing with the pool as found, I take up a few issues apparent from the submissions:
(a)Funds have been held on trust by the wife’s lawyer since the sale of the Suburb L property. It is not clear whether or not that sum has been attracting interest. Hopefully it has;
(b)In my view, it is appropriate to offset the loan due to the wife from the M Trust, with her obligations arising from paragraph 7.7, 7.8 and 7.9 of the C Accountants report. I will include a nett sum of $57,012;
(c)I have already explained why no value for any contingent interest the wife may have in the OO Group should be included;
(d)I agree with the wife’s submissions at paragraph 79 that the mere production of one communication from the Australian Taxation Office dated 6 January 2017 (annexure “[MRT]-I” of the husband’s affidavit filed 17 February 2021), does not support a liability exists from a transaction said to have occurred in 2012. The husband has not taken steps to crystalise any liability (perhaps understandably), and I am not satisfied on the evidence a true lability exists;
(e)The assertion of loans being owed by the husband to P Ltd required the husband to do more than simply assert the fact. I can give no weight to Exhibit 32 (the alleged Mr XX statement), where no attempt to call him as a witness is demonstrated. Mr XX’s involvement with the husband in many entities and transactions remains somewhat of a mystery;
(f)The wife contends at paragraph 81 that I should find the husband controls and owns (either directly or indirectly) various named entities. I make no such finding. The wife, despite her best endeavours in the face of the husband’s denials, has not established such control or ownership. The wife however sensibly contends at paragraph 82 in any event, that it is “not possible for the Court to ascertain or include value for the husband’s interest in such entities in the pool available for distribution”. I agree;
(g)I find, considering the period that has expired since separation, and how monies moved between the parties post separation, that seeking to include personal bank account balances or credit card liabilities now, is somewhat artificial. I will not do so;
(h)Sensibly in my view, the wife’s submissions do not seek to “add back” or include funds for:
(i)legal expenses;
(ii)living expenses paid by either party post separation from available funds; or
(iii)funds borrowed by the wife from her parents and EE Finance,
rather I am asked to take a number of transactions into account when dealing with the relevant s 79(4) factors and of course s 75(2). I will do so.
(i)To the extent the husband has asserted the wife has hidden assets from funds available when the family relocated to Australia, the thorough evidence of Mr B does not support such a finding, and I reject the husband’s contention.
On the basis of findings made that I believe are available on the evidence, I find the pool of interests to be as follows:
ASSETS OWNERSHIP
DESCRIPTION
VALUE Joint Funds held in trust (not including accrued interest) $1,150,000 Wife Motor Vehicle 1 $30,000 Wife Nett interest in the M Trust $57,012 Wife Ring $2,000 $1,239,012 SUPERANNUATION Wife Superannuation Fund 1 $35,000 Husband Superannuation Fund 2 $75,900 $110,900 COMBINED NETT POOL $1,349,912
I considered including the initial distributions of $100,000 each after the sale of the Suburb L property in the pool – although being satisfied each party used the funds either for living expenses or legal fees, I do not find any injustice occurs from not doing so.
I am satisfied that it is just and equitable to make an order (s 79(2) of the Act).
ASSESSING THE PARTIES’ CONTRIBUTIONS
At the commencement of the husband’s evidence, he accepted a proposition put to him by the wife’s Counsel that, considering the length of the relationship and the modest (although slightly different) initial contributions made in 1997 when cohabitation commenced, the parties’ myriad financial and non-financial contributions to April 2015 (18 years) were equal.
I accept that the wife’s contributions as homemaker and parent to Ms H and X (who were approximately 16 years and 10 years respectively at separation) was greater than the husband’s. I also accept the husband’s direct financial contributions during this period were more significant than those of the wife, even allowing for the income contributions from the OO Group.
Whilst that concession by the husband was appropriate, and I find proper, it is not consistent with authority to “start” from a position of 50/50 at separation and then “adjust” that position for post separation factors.
Rather the myriad of all contributions need to be weighed for the entirety of the relationship to the date of the hearing.
At paragraphs 94 to 96 of the written submissions, the wife says that overall contribution based entitlements should favour the wife, primarily to take into account:
(a)the lack of payment of child support (noting he did pay $21,640.36 to be released from the constraints of the DPO);
(b)the limited time the husband has spent with X since August 2018; and
(c)the resultant contribution made as homemaker and parent post separation.
Noting that X turned 18 years in 2022, I find that the appropriate contribution based entitlements to be 55% to the wife and 45% to the husband – a differential of 10% – or a figure on the pool found to exist of $135,000 approximately. This in my assessment is appropriate.
SECTION 75(2) FACTORS
The parties are of similar ages and although the husband, the Court accepts, was diagnosed and hospitalised with Covid-19, he produced no medical evidence that says he is unable to earn an income. His extensive experience in commercial and industrial ventures and as a consultant, I find, should allow him to generate an income – although it may not be at the highest levels he previously enjoyed. He has not practiced under his qualifications for many years.
The wife relied upon evidence from Dr RR, her doctor since 2009, who opined that the wife “functions at a high level despite her chronic pain conditions. Her condition is stable, and unlikely to improve, or decline over time”. Although the wife has an impressive range of tertiary qualifications, apart from administrative tasks for family entities, she has not worked in the private or public sectors (utilising her obvious skills and training) since 2000. She no longer has the care of an infant child – although I expect X, and to a lesser extent Ms H, rely on the wife for emotional support, with the husband remaining out of the country.
I do not ignore that the husband has some fundamental responsibilities and a duty to support his infant daughter, however the husband provided very little evidence as to how his City J household functions; how much time he is required to devote to the care of his daughter which could affect his future earning capacity; and the circumstances of mutual support and cohabitation with his wife.
Considering the ultimately modest pool that exists, neither party shall receive a share (noting the wife contends for 100% of the pool of interests) of the funds in trust which will substantially improve their financial future. Current home ownership costs suggest that neither party will be able to purchase a home – certainly in Brisbane and I infer in City J.
This finding also takes into account the other debts the wife has for legal expenses (predominantly met but repayable to a litigation lender) and if she is asked to repay “loans” from her parents. In the absence of any probative evidence from her parents, I cannot be satisfied they will ever seek recovery from the wife for the continued support they have provided.
Sadly, this is a case where both parties will leave a long relationship where they have worked hard; raised two impressive children; at times maintained a high level of lifestyle but end up with virtually nothing to show for their efforts.
The costs of the litigation, both financially and emotionally, and over such a long time, has meant in my ultimate assessment that the effort and costs exerted by both has been disproportionate to the range of outcomes. Again, the Court expresses its regret for its failure to deliver these Reasons in a more timely manner, and that the failure to do so has prolonged the parties pain and contributed to the ability to close this chapter of their lives and move on.
In a very detailed and forensically impressive submission, the wife’s primary submissions content for a 32.5% adjustment to the wife for s 75(2) factors which, when combined with the claim for a contribution entitlement of 62.5% means that the wife should receive 100% of what the wife describes as the “known” pool. This contention is summarised at paragraph 189 of the submissions as follows:
189.The wife contends that an adjustment, to the contributions-based assessment ultimately determined by the Court, in her favour is warranted to ensure that she receives the entirety of the funds held in trust by DA Family Lawyers in light of:
a.the wife’s inability to recover any of $127,144 in outstanding child support from the husband (referable to the period from April 2017 to 11 March 2021), despite the AAT decision of November 2018;
b.the unlikelihood of the wife receiving any future child support from the husband ($77,580 referable to the period from 11 March 2021 until 3 December 2022);
c.the probability that the wife will be solely responsible for [X’s] care until adulthood, given the husband’s continued absence from Australia;
d.the husband’s failure to provide full and frank disclosure of his financial circumstances throughout the proceedings;
e.the funds of over $1,060,000 to which the husband has already had access (and his failure to adequately account for the use to which those funds have been put), specifically:
i.the $30,500 in the two months immediately post-separation, and the $3,935 he received in November 2015, see paragraphs 110-111 above;
ii.$451,208 from 3 April 2015 to January 2018, see paragraph 112 above;
iii.the further $582,241 canvassed in paragraph 115 above;
f. a comparison of the parties’ likely earning capacities, noting:
i.the agreed roles undertaken by each party during the relationship, and the wife’s prolonged absence from the workforce;
ii.the husband’s involvement with [P Ltd], [AF Company], and more recently [U Ltd] (appointed as director [in late] 2020);
g.the lack of information available concerning the financial circumstances relating to the husband’s cohabitation with his wife; and
h.the wife’s reliance on Centrelink payments and her family’s financial support.
In the final analysis, on the figures which the wife contends should apply, there is simply not enough in a pool of $1,349,912 to make the adjustment. I regard the submission as a brave attempt to try and demonstrate why the wife should receive 100% of the pool.
The husband did not really articulate an outcome that assisted, although of course he submits:
(a)he was not guilty of the deliberate non-disclosure claimed by the wife;
(b)he has always denied the child support debt (of around $127,144) was properly raised against him and is lawfully owed by him. I accept it is unlikely that the wife will recover that debt or any other monies for child support; and
(c)he did have access to funds from joint sources sent to him by the wife and although the wife says that was in excess of $1,000,000, I do not accept that, on the evidence, it was unreasonable for the husband to use some of the funds for reasonable living expenses.
I accept the husband’s earning capacity is superior to the wife’s, mostly because of the time the wife has spent out of the workforce compared to the husband’s commercial activities (vague in many ways as it appeared on the evidence), with the Mr XXs of the world. Simply, the wife will never really know, and the Court is unable to determine, the extent of the future income potential of the husband.
I believe an adjustment to the wife on the contribution based entitlements is required, but attempting to calculate a percentage figure is somewhat artificial. Rather, the Court will, on the basis of findings made, turn to the final step – namely what orders are likely to do justice and equity to both parties.
WHAT ORDERS DO JUSTICE AND EQUITY?
At paragraphs 193 to 195 of the wife’s primary submissions, she contends for the following orders:
Sale proceeds from [S Street, Suburb L] property
1.That this order shall act as authority for the solicitors for the wife to transfer to an account nominated by the wife all of the funds in the DA Family Lawyers Pty Ltd ATF [Ms Trendor] and [Mr Trendor] Account with BSB […] and Account No. […92] and the solicitors for the wife shall give effect to this order within 7 days of the date of these orders.
Other
2.That unless otherwise specified in this order and within 14 days from the date of these orders, the husband and wife shall do all acts and things and sign all documents as may be necessary and required to close all accounts in the joint names of the husband and the wife and upon closure any funds held in such accounts shall be distributed to the wife and become the sole property of the wife to the exclusion of the husband.
3.That the husband retain all right, title and interest in and to, and the wife relinquish any claims she may have against the husband in respect of the following:
(a) All of the husband’s superannuation and pension entitlements;
(b) The husband’s interest in and to the following:
(a)[T Pty Ltd] and for that purpose the husband and wife shall do all acts and things and sign all documents as may be necessary and required, at the husband's cost, to transfer all of the wife’s right, title and interest in and to [T Pty Ltd] to the husband and for the wife resign as director of [T Pty Ltd];
(b) [P Ltd].
(c) [U Ltd];
(d) [V Ltd];
(e) [V Trust]; and
(f) [W Ltd]
(c)Subject to these orders, all monies held in all bank accounts in the husband’s name;
(d)All furniture and household effects currently in the husband’s possession or control;
(e)All of the husband’s shares including but not limited to the following:
i. [Y Ltd];
ii. [O Pty Ltd];
iii. [Z Pty Ltd];
iv. [AA Ltd];
v. [BB Company] shares;
vi. [CC Ltd].
9.That the wife retain all right, title and interest in and to, and the husband will relinquish any claims he may have against the wife in respect of the following:
(a)All of the wife’s superannuation and pension entitlements;
(b)The wife's interest in and to the [M Trust];
(c)All monies held in all bank accounts in the wife's name;
(d)[Motor Vehicle 1];
(e)All furniture and household effects currently in the wife’s possession or control.
10.That the husband indemnify the wife and keep her indemnified in relation to any liability in the husband's name or associated with any entity the husband has an interest in including but not limited to:
(a)[T Pty Ltd];
(b)[P Ltd].
(c)[U Ltd];
(d)[V Ltd];
(e)[V Trust]; and
(f)[W Ltd]
11.That the wife indemnify the husband and keep him indemnified in relation to any liability in the wife’s name including but not limited to:
(a)Any liability in relation to the [M Trust];
(b)Any credit cards in the wife’s name;
(c)All monies owing to the wife's father, [Mr DD] and [EE Finance].
12.That unless otherwise specified in this order and except for the purpose of enforcing the payment of any money due under this or any subsequent order:
(c)Each party be solely entitled to the exclusion of the other to all property in the possession of such party as at this date.
(d)Each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other.
(e)All insurance policies to become the sole property of the policy owner named herein.
(f)Each party be solely liable for and indemnify the other against any liability encumbering any items of property to which that party is entitled, pursuant to this order and any and all credit cards, personal loans or other liabilities in that party's name.
13.That in the event that either party refuses or neglects to do any act or thing or to sign any document necessary to give effect to this order, then pursuant to Section 106A of the Family Law Act 1975 (Cth), a Registrar of the Family Court of Australia at Brisbane is hereby appointed to execute all deeds and documents in the name of the respondent and/or the applicant and do all acts and things necessary to give validity and operation to the said order.
14.That unless otherwise ordered, the transferee spouse or the spouse receiving the benefit of any order shall prepare the documentation necessary to give effect to these orders at their cost and be responsible for the payment of registration fees in relation to the transfer of the property to their name.
15.That unless otherwise ordered, any duty levied pursuant to the Duties Act 2001 (Qld) payable on transactions arising from these orders or any documents executed under these orders be paid by the transferee spouse or the spouse receiving the benefit of the transaction.
Child support
16.That the Application in a Case filed by the father on 5 November 2018 be dismissed.
17.That the husband pay the wife's costs of and incidental to these proceedings.
(As per the original)
Standing back and looking at the relationship history since 1997, in my assessment it would be unfair to merely look at what has occurred in the last nine years since separation (as traumatic as it has been for the parties) and to essentially extinguish any entitlement at all of the husband. I can well understand why the wife may feel that way.
In the exercise of my discretion, I have reached a conclusion that the pool of interests found on the evidence, that amounts to a modest $1,349,912, should be distributed as to 72.5% to the wife and 27.5% to the husband.
72.5% of the pool amounts to $978,686 comprised of the following:
Motor Vehicle 1 $30,000 Nett interest in the M Trust $57,012 Ring $2,000 Superannuation $35,000 $124,012 Plus share of funds in trust $854,674 $978,686
The husband’s 27.5% share amounts to $371,226, comprised of:
Superannuation $75,900 Plus share of funds in trust $295,326 $371,226
Any interest that has accrued on the funds invested, if any, shall be distributed as to 75% to the wife and 25% to the husband – reflecting the approximate proportions their distribution from the funds represents (for example $854,674 out of $1,150,000 = 74.3%).
I find that orders which effect this distribution are just and equitable to both parties.
COSTS
At paragraph 197, the wife seeks a stay of any order requiring payment to the husband (not of course the wife’s preferred position), so that the wife has an opportunity to make an application for costs and the Court the opportunity to determine such application.
In my view, such an order is appropriate because the husband has no assets in Australia and no intention to come to Australia – although this should not be construed as either an invitation or encouragement for either party to make an application for costs.
The orders at the commencement of these Reasons are just and equitable on the Court’s findings made in these Reasons.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 5 December 2024
0