Wardon and Wardon and Anor
[2020] FCWA 111
•17 JULY 2020
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: WARDON and WARDON & ANOR [2020] FCWA 111
CORAM: DUNCANSON J
HEARD: 24, 25, 26, 29, 30, 31 JULY, 1 AUGUST 2019, 26, 27, 28 FEBRUARY, 3, 4, 5, 6, 9, 10 and 11 MARCH 2020
DELIVERED : 17 JULY 2020
FILE NO/S: PTW 5173 of 2016
BETWEEN: MR WARDON
Applicant
AND
MS WARDON
First Respondent
AND
MS WARDON SNR
Second Respondent
Catchwords:
PROPERTY - identification of the existing legal and equitable interests of the parties in their property - where funds provided to the husband by the second respondent are not taken into account as liabilities of the husband - where a declaration sought by the second respondent that funds which are the subject of a deed of loan are due and owing is refused - where a company is found to be the alter ego of the husband - where it is just and equitable to make a property settlement order - where the husband made the greater contributions - where the financial benefit which the husband derives from the second respondent is a financial resource - adjustment in favour of the wife for section 75(2) factors - where consideration is given to a just and equitable outcome and orders to give effect thereto
SPOUSAL MAINTENANCE - where it is found the wife is unable to support herself adequately - spousal maintenance ordered in terms similar to those proposed by the husband
CHILD SUPPORT - where the grounds for departure are established - where it appropriate to depart from the administrative assessment of child support - where orders are made by consent
Legislation:
Family Law Act 1975 (Cth) s 72, s 74, s 75, s 79, s 80, s 90XT, Division 12A
Child Support (Assessment) Act 1989 (Cth) s, 116, s 117, s 124(1)
Family Law (Superannuation) Regulations 2001 (Cth) Part 6
Category: Reportable
Representation:
Counsel:
| Applicant | : | Self-Represented Litigant |
| First Respondent | : | Mr Rynne / Self-Represented Litigant |
| Second Respondent | : | Self-Represented Litigant |
Solicitors:
| Applicant | : | Self-Represented Litigant |
| First Respondent | : | Direct Brief |
| Second Respondent | : | Self-Represented Litigant |
Case(s) referred to in decision(s):
Biltoft and Biltoft (1995) FLC 92-614
De Winter & De Winter (1979) 4 Fam LR 583
Grace v Grace (1998) FLC 92-792
Hall v Hall(2016) 257 CLR 490
Pratt & Pratt [2012] FamCAFC 81
Rodgers and Rodgers (No. 2) (2016) FLC 93-712
Stanford v Stanford (2012) 247 CLR 108
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wardon and Wardon has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
1 [Mr Wardon], the husband and [Ms Wardon], the wife are unable to agree about the division of their property. The proceedings between them concern both parenting and financial matters. Also a party to the financial aspect of the proceedings is the husband's mother, [Ms Wardon Snr] whose financial circumstances are linked to those of the parties. There are interim arrangements in place for the children and the parties are attending family therapy. The trial proceeded with respect to financial matters only and included issues of spousal maintenance and child support.
2 The parties have significant assets but they also have significant liabilities, the net effect of which is that there is little property available for division.
THE ORDERS SOUGHT
The orders sought by the husband
3 The orders sought by the husband at the commencement of the trial were those contained in a minute of orders sought at trial filed 18 May 2018.
4 In the minute the husband proposed that the dollar for dollar orders made on 2 May 2018 be discharged retrospectively from that date. The husband sought to discharge orders 6 and 7 of the orders dated 2 May 2018 (for the sale of furniture and effects) and proposed to transfer to the wife the [vintage musical instrument] and the wife's wedding and engagement rings. The husband sought an order that the wife transfer and assign to him any interest she may have in:
(a)the entities and businesses:
• [Entity A], trading as [Company A];
•[Entity B] as trustee for [Trust A], trading as [Company B]; and
•[Entity C], trading as [Company C];
(b)the property at [Property A]; and
(c)the property at [Property B].
5 The husband proposed that the wife transfer to him her interest in household effects, furniture, art work and other property at Property B as listed in a schedule annexed to the minute.
6 The husband proposed there be a superannuation splitting order, such that the wife receives 50% of his interest in [Superannuation Fund A].
7 The husband proposed an order that he contribute to the wife's accommodation expenses in the sum of $400 per week by way of spousal maintenance, which order be discharged if the wife deceases, remarries or enters a de facto relationship, she commences full-time employment with a salary exceeding $52,000 or on the two year anniversary of the final order, whichever event occurs first.
8 In closing the husband made a number of proposals which I set out below. As I understand it, the proposals represent the orders he now seeks.
9 The husband proposes that the wife remain in Property B if she wishes until 31 January 2021. He would have access to the cabana room on Monday to Friday each week between 9.00 am and 3.00 pm for business purposes. The husband would maintain the pool. The husband proposes that the wife receive Company B. He would assist her to get it operational and provide her with the intellectual property. The husband would retain the furniture except for certain items which the wife may retain including her rings, the vintage musical instrument, any household items she requires and the children's furniture.
10 The husband proposes to provide the wife with either [Motor Vehicle A] or $20,000 to enable her to purchase an alternative vehicle. The husband proposes that upon the wife vacating Property B she receive 50% of his superannuation benefits. He proposes she also receive the following payments:
$10,000 within 28 days of final orders;
$10,000 on 1 December 2020;
$10,000 on 31 December 2020 or one month prior to relocation from Property B;
$10,000 within 14 days of relocation; and
$10,000 by 31 March 2021, being 60 days after relocation.
11 The husband proposes to pay a further $40,000 to the wife by instalment payments of $10,000 cash on 31 December 2021, 31 December 2022, 31 December 2023 and 31 December 2024.
12 The husband proposes to pay the wife the sum of $500 per week by way of periodic spousal maintenance.
13 The husband proposes that after the wife vacates Property B she could use the home to conduct [music] lessons on two occasions each week.
14 The husband proposes to pay for accommodation for the wife in the sum of $450 per week to enable her to rent a property until the younger child attains the age of 18 years. That is about the amount the second respondent receives by way of rent for her investment property and it is proposed that her rental income will be applied to the wife's rent. The husband said if the investment property was untenanted, that would not affect the payment to be made to the wife.
15 The husband consents to an order departing from the administrative assessment of child support, such that he pay the sum of $250 per week for each child until they attain the age of 17 years and he would pay all educational, extracurricular and medical expenses pertaining to the children. This would represent his child support liability in substitute for an administrative assessment.
16 The husband proposes to pay the remaining outstanding single expert witness' fees. There would be no costs payable by either party.
17 The remainder of the husband's proposals remain as set out in [4] above, namely that he retains the properties, the entities of Company A and the liabilities.
The orders sought by the wife
18 The orders sought by the wife were contained in a minute of final orders sought filed 19 July 2019. In opening submissions however, her counsel amended her position and the orders sought by her are as set out below.
19 The wife proposes that the orders dated May 2018 providing for the sale of furniture be discharged, but the dollar for dollar orders remain in full force and effect.
20 The wife proposes that within 60 days of orders the husband pay to her the sum of $1 million.
21 The wife proposes that the husband transfer to her his interest in Company B and that he deliver and transfer to her his interest in the [antique collection] located at the Company A premises. She proposes that she retains the following property:
(a)her engagement ring;
(b)her [Bank C] accounts;
(c)her interest in [Motor Vehicle B]; and
(d)the furniture and household items currently located within Property B except for the antique furniture which she proposes the husband retain at a value of $150,000.
22 The wife proposes that Property B and Property A be sold and pending their sale they be charged with performance of the order to pay her $1 million.
23 The wife proposes that the parties jointly be appointed trustees for the sale of the properties and pending the sale she reside in Property B and the husband pay the outgoings.
24 The wife proposes that pending the payment of $1 million to her the husband pay her spousal maintenance of $2,000 per week. Upon payment of the lump sum she will transfer to the husband her interest in any other asset or item of property not otherwise retained by her.
25 The wife proposes there be a superannuation splitting order such that 100% of the husband's superannuation interest be transferred to a fund nominated by her.
26 The wife seeks, if necessary, there be a declaration that the loan agreement entered into between the husband and the second respondent is a sham.
27 The wife seeks an order that there be a departure from the administrative assessment of child support such that the husband pay child support in the sum of $250 per week in respect of each child from the date of separation until they are 18 years of age or their completion of Year 12 and that he also pay the private school fees for the children.
28 In the alternative to payment of $1 million, the wife proposes that the husband pay to her spousal maintenance in the sum of $100,000 per year to be paid by equal monthly instalments for a period of 10 years or such sum proportionate to his capacity to pay.
29 In the alternative to the above orders, the wife proposes that Property B and Property A and the business be sold and the net proceeds be divided 90% to her and 10% to the husband. In that event she also seeks spousal maintenance of $1,000 per week.
30 In the further alternative, the wife proposes the proceedings be adjourned sine die on the basis that it is not fair, nor just to proceed to determine an alteration of property interests on a final basis and that while adjourned she continue to occupy Property B, she retain the furniture and she be paid $2,000 per week by way of spousal maintenance.
31 In the further alternative, the wife proposes that the proceedings be adjourned pursuant to s 79(5) on the same conditions as set out in [30] above.
32 In closing, the wife who by then was a self-represented litigant, set out what she described as "other options". The wife repeated her proposal that she remain in Property B for the next five years and the property settlement between the parties be deferred for that period. She seeks spousal maintenance of $2,000 per week during the five year period. The wife wishes to retain the vintage musical instrument. The wife seeks an order that the title to Property B be placed in the joint names of the parties immediately. The wife's position is that she wishes to "wait for better times".
The orders sought by the second respondent
33 The orders sought by the second respondent are contained in her response filed 10 January 2018.
34 The second respondent seeks a declaration that the funds, the subject of the deed of loan executed by the husband and the second respondent on 24 April 2010, are due and owing and payable in accordance with the terms of the deed of loan.
35 The second respondent seeks an order that within 90 days from the date of final orders and upon the written demand from the second respondent, the parties pay or cause to be paid the monies owing to her as set out in that deed.
36 In the alternative and in the event that the Court orders a sale, or the applicant elects to sell either Property B or Property A, or his interest in Entity A, Entity B or Entity C, then after the discharge of the mortgages secured over the title to the property and other necessary expenses, the balance of funds be applied in respect of:
1The debt owing under the deed.
2A $50,000 loan for her interest in Entity C.
3In repayment of all forgone distributions from Entity A trading as Company A.
4Loans made by her to the husband post-separation.
37 The balance then remaining to be divided between the husband and the wife as determined by the Court.
38 The second respondent also seeks a declaration that neither the husband, nor the wife have any interest in the 250 shares in Entity A issued to her.
39 The second respondent seeks to secure her payments by way of caveats over Property B and Property A.
40 The second respondent proposes that upon 90 days notice she be at liberty to require the husband and the wife to refinance the [Bank A] loans to release her and her assets from the guarantee which she provided.
41 In closing the second respondent stated she would provide financial support for [Child A] at [School A] until the end of Year 12 and would offer [Child B] the opportunity to attend [School B].
42 The second respondent explained that in the event of a sale of Property A or Property B, she reserves the right to be reimbursed foregone distributions since 2014. In the event of a sale of the Company A business she also seeks to be reimbursed her initial investment, employee entitlements, her foregone distributions and miscellaneous loans to the husband.
BACKGROUND
43 The husband was born in Australia [in] 1965. He is 55 years of age. He is a [businessman].
44 The wife was born [in] 1972 in [Country A]. She is 48 years of age. She is a housewife.
45 The parties met online in 2002. The wife lived in Country A and the husband in Australia. [In] 2002 the wife was divorced from her previous husband. In June 2003 the parties commenced cohabitation in Western Australia.
46 The parties married [in] 2004.
47 Child A was born [in] 2005. He is 14 years of age. Child B was born [in] 2007. She is 13 years of age.
48 In August 2015 the parties separated under one roof.
49 In about March 2016 the husband left the family home and resided at an investment property owned by the second respondent.
50 Since separation the children have lived and spent time with both parties. Currently they live with the wife for nine nights and with the husband for five nights in every fortnight and spend equal time with the parties during school holidays.
THE PARTIES AND THEIR EVIDENCE
51 The hearing of this matter lasted 17 days. There were 108 exhibits extending to about two thousand pages. On 1 February 2017 a Registrar made an order by consent that leave was granted for the financial proceedings to be conducted as child related proceedings under Division 12A of Part VII of the Family Law Act1975 (Cth) ("the Act").
52 I have considered all of the evidence very carefully. In these reasons I have not referred to all of the evidence as I do not consider it necessary and nor is it practicable to do so. If I do not refer to part of the evidence of a party or witness, it should not therefore be assumed that I have ignored or overlooked it.
53 The husband was a self-represented litigant. He is an intelligent man. In the early years of the relationship he had considerable accumulated wealth at his disposal. After the Global Financial Crisis [(“GFC”)] he experienced significant financial difficulties. He has since worked hard to retain assets against a background of falling values. As he described it, he has been "kicking the can up the road". This is a reference to him continuing to meet significant financial obligations, primarily loan repayments to the bank.
54 The husband was well prepared. The wife has relentlessly pursued what she asserts to be the husband's financial misconduct and hidden assets. The husband has disclosed thousands of documents. He arranged for professionals, including accountants and stockbrokers to provide information and give evidence. At times the evidence of these persons was interposed to answer the wife's questions and to respond to her search for missing funds.
55 The husband maintained his composure during cross-examination. He endeavoured to answer questions to the best of his ability, although was not always able to do so accurately when the questions involved financial detail dating back many years. Mostly the husband endeavoured to give truthful evidence. In many instances I found his explanations to be credible and plausible.
56 The husband has the support, both financial and otherwise of the second respondent. Their financial affairs are closely connected and together they have met the wife's case. They have put forward a united front in opposing the wife's application.
57 Some aspects of the husband's evidence were unclear and vague and in those aspects I consider his evidence was unsatisfactory. For example, when asked to explain numerous cash deposits which were made to his credit card account the husband's response was that those questions should be asked of the second respondent who made the various payments. Similarly the husband's evidence regarding the second respondent's payment allegedly made for 25% interest in Entity A and the treatment of those funds in the financial statements were unsatisfactory. The husband said he was not responsible for the way his accountants prepared the accounts. On the contrary, his accountant said he prepared the accounts based on information provided and he did not audit the accounts. Similarly, I consider the husband's evidence regarding the deed of loan and circumstances relating thereto to be unreliable. As set out below it is not accepted that this is a liability to be taken into account.
58 In general terms where the husband's financial transactions are closely connected with those of the second respondent, careful scrutiny of his evidence is required.
59 The wife was represented by Mr Rynne of counsel throughout the husband's case. Mr Rynne made opening submissions on behalf of the wife and thereafter she was a self-represented litigant. At times there appeared to be some difficulties between Mr Rynne and the wife as to her instructions relating to some financial issues, however they subsequently seemed to be resolved.
60 English is not the wife's first language, however when Mr Rynne withdrew, she confirmed to me that she was able to proceed without the aid of an interpreter and with the assistance of her McKenzie Friend, an accountant.
61 The husband was cross-examined by Mr Rynne and subsequently by the wife over nine days. During the cross-examination of the husband, Mr Rynne put a number of financial transactions to him. At the start of the wife's case Mr Rynne acknowledged that on the face of it the net assets of the parties were "in the negative". He submitted however that he sought to demonstrate that there were funds missing and that following cross‑examination, the Court would find that property existed which could be divided between the parties.
62 When the wife cross-examined the husband she did so at length and often in minute detail. The wife put bundles of documents to the husband together with summaries thereof which she had prepared. In some instances where the husband did not have an opportunity to check these documents, and in particular the accuracy of the summaries, they were not accepted.
63 In any event with a fixed agenda and assisted by her McKenzie Friend, the wife cross-examined the husband extensively and I am satisfied that I understood her questions and the purpose of them. Having considered the husband's evidence in answer, I was able to make findings which I am satisfied are appropriate based on the evidence which emerged from that cross-examination.
64 Had I permitted it, the wife would have continued to cross‑examine the husband for longer than she did. It was necessary for me to manage the time. Bearing in mind the main purpose of the rules, I imposed time limits upon both parties. At times when the evidence was not assisting me, it was entirely appropriate that I do so. I am satisfied that all parties had an opportunity to test the evidence of the other.
65 I have had to take a broad brush approach to the evidence in some aspects because the historical evidence was not of sufficient certainty to be reliable. In other aspects however, I consider the evidence which emerged from cross-examination to be important and relevant and enabled me to make the findings I have.
66 The wife and her McKenzie Friend had clearly spent a considerable amount of time preparing the wife's cross-examination, although there were difficulties with photocopies and other practical difficulties. I did my best to assist both parties by having my staff carry out photocopying when needed as it was expedient to do so.
67 In relation to the wife's financial circumstances I consider she gave honest evidence. Her financial circumstances are dire and have been for some years. The husband cross-examined the wife and her friend [Mr A] regarding their relationship and I am satisfied both gave honest evidence in that respect.
68 The second respondent was self-represented. Her position was closely aligned with that of the husband.
69 The second respondent strenuously denied the wife's accusations of her deliberate non-disclosure. The second respondent maintained that the deed of loan between her and the husband is a valid document and also that she is the owner of 25% of the shares in Entity A. Where the financial circumstances of the second respondent are connected with those of the husband, her evidence also requires careful scrutiny and in some instances is not reliable.
70 The second respondent cross-examined the wife from a prepared list of questions. I consider the second respondent fully understood the proceedings. She was in no doubt as to the outcome she sought to achieve, which was aligned with that of the husband.
71 The second respondent was questioned in relation to some detailed financial matters. As some of these matters dated back many years, she was unable to answer some of the questions.
72 At the conclusion of the evidence, I asked both parties to provide me with the current assessment of child support. Subsequently both parties sought to file lengthy affidavits. Given the husband's concession with respect to the child support orders, I decided I had sufficient information. The affidavits were not accepted as the evidence was closed and neither party applied to re-open.
FINANCIAL HISTORY
Early years
73 Between 1987 and 1998 the husband acquired [Business Venture A].
74 In 1989 the husband and second respondent purchased [Property C] for $143,000 with a loan from [Bank B] of $114,500. The second respondent paid $35,000 towards the purchase. The title to the property was registered two thirds to the husband and one third to the second respondent. The second respondent assisted the husband in purchasing this property as she had assisted her other children, [Ms A] and [Mr B], in the purchase of a home.
75 The husband said repayments in respect of the Property C loan, being the shortfall between the rental income and the loan repayments, were met by him and the second respondent in their respective shares, that is, 10% by him and 90% by the second respondent. There was no documentation to establish this and it was the wife's position that the husband received the rental income and paid the loan repayments. As discussed below I do not accept the evidence of the husband and the second respondent that their intention was that Property C be owned 10% to the husband and 90% to the second respondent.
76 In 1992 the husband and the second respondent purchased two businesses which they subsequently sold in 1994 and 1995.
77 In 1993 the husband purchased [Property D] for $152,000. This property was rented.
78 The Property C loan was paid out on 24 May 1995. The final loan repayment was made by "[Wardon]". The husband asserted this was the second respondent. The wife asserted it referred to the husband, consistent with her position that he had made the repayments.
79 In March 1996 the husband purchased [Property E] from his grandmother for $260,000. He paid a deposit and borrowed $200,000 to complete the purchase.
80 In 1998 the husband received an inheritance from his late father, including a property at [Suburb A], shares, [collectibles], Business Venture A and cash. He renovated Property E and repaid the mortgage with his inheritance.
81 In 1995 the husband and his friend [Mr C] purchased Company A in equal shares. The purchase price was $1,042,000. The husband purchased his 50% share through his company [Entity D] and Mr C purchased his 50% share through his company. Each company owned 200 shares in the business Company A, which was 100% of the issued share capital. Entity D became Entity B and was the corporate trustee of Trust A, which was established in 1996. The husband is the sole trustee and appointor of the trust.
82 To fund the purchase of the husband's shares in Company A he and the second respondent provided Property C as security for the husband's loan of $350,000 from Bank A.
83 It was the husband's position that from then onwards he received the income and paid the outgoings in respect of Property C. It was the wife's position that the husband had done so since the property was purchased.
84 Company A was a successful business. The husband and Mr C expanded and leased further [business premises]. In 2001 or 2002 they purchased units at [Street A], [Suburb B] ("[The Street A units]") used as a storage premises and an office. The premises were renovated using funds from the Company A business overdraft.
85 In around 2000, the husband purchased a new [Motor Vehicle B] for $160,000. From about 1995 onwards the husband had begun to accumulate a collection of antique furniture.
Financial history at the commencement of cohabitation and early in the relationship
86 In December 2002 the husband and Mr C opened a third Company A [business] in [Suburb C].
87 In 2003 the husband purchased an interest in a [sports] syndicate.
88 The parties commenced cohabitation [in] 2003 when the wife moved to Australia.
89 The wife commenced a course in English at TAFE. She began working at the Company A office and became a salaried employee of Company A by 2004/2005.
Financial prosperity 2004 to 2008
90 The parties experienced a period of financial prosperity between 2004 and 2008. They enjoyed a high standard of living enabling the husband to provide funds to the wife's family in Country A, meet the cost of travel and enjoy holidays both within Australia and overseas. In 2004 they purchased [a vintage musical instrument] at a cost of $85,000 for the wife's use.
91 In 2005 the husband sold the Street A units and leased a larger warehouse.
92 The wife became pregnant in 2005 and in November that year the parties purchased Property B for $2.5 million. The property was registered in the husband's sole name. The husband sold Property E for $1.19 million in August 2005 and applied the proceeds to the purchase of Property B. He also sold shares and obtained a loan from Bank A for $815,000. The mortgage repayments were met from the husband's income from Company A.
93 In February and March 2006 the husband sold shares and the mortgage over Property B was reduced to nil.
94 The husband had a share portfolio which he initially managed himself. In around 2005 he began using the services of a broker. His portfolio was transitioned into a high risk one. In about April 2005 the husband obtained an increased margin lending facility of $2 million, which he used to purchase shares. As at June 2007, the husband's shares had a value of $7,245,249 and cost $4,899,910. The husband deposed the share portfolio was leveraged with margin lending through Bank A and leveraged again with derivative trades.
95 In April 2007 the husband purchased Motor Vehicle A. He continued to accumulate antique furniture. In July 2007 the husband purchased Property A for $1.35 million. He paid a cash deposit of $100,000 and borrowed $1.25 million from Bank A.
96 Between 2005 and 2007 the husband sold Business Venture A and the proceeds were applied to purchase shares.
The Global Financial Crisis
97 At the time of the GFC, the parties' wealth eroded significantly. By early 2007 the husband had incurred substantial losses in his shares and derivative options. The husband carried significant debt from margin loan share purchases. The share price tumbled. The loan to value of the husband's investments rose and ultimately both the margin lender, Bank A and the ASX options clearing house made margin calls. The husband had to sell shares at prices much lower than purchased and close out or buy back option positions at much higher prices than sold for. Bank A required the husband to clear all the margin loans or offer alternate security. He did this by changing the margin loans to a home loan secured against Property B and then making principal and interest payments to the home loan. In addition to Property B, Property A and a property owned by the second respondent in [Suburb C] were provided as security for the home loan. In March 2008 Bank A approved a facility of $2 million for the home loan.
98 The husband was extensively cross-examined about his share trading. Exhibit 34 is a summary of income and losses for the financial years 2005 to 2010. It was prepared by [Mr D], the husband's stockbroker who deposed to the husband's share trading and who gave oral evidence. Ultimately, Exhibit 34 was agreed after being checked by the wife's McKenzie Friend who conferred with Mr D. The summary refers to gains and losses made in the years 2005 to 2010 and the net loss in those years was $509,960.
99 The husband subsequently traded through [Company D]. Information from the years 2010 onwards in relation to share trading was not forthcoming at trial.
100 The wife asserted that funds totalling $960,000 were unaccounted for in respect of cheques (all but one) written between January and September 2009. Exhibit 63 is a summary prepared by the wife of those cheques dating between 6 January 2009 and 12 October 2010 (although the later of those dates was subsequently agreed to be 12 November 2010), together with the relevant bank statements. The wife's position was that these funds did not go to share trading or the business and were missing.
101 The husband explained that at this time he was winding out of Company D and setting up a CommSec account to which the funds were transferred through [Bank C] and used to purchase shares. Exhibits 65 and 67 contained details of the husband's explanation in which he demonstrated the movement of funds between accounts. The husband had not disclosed the documents and said they dated back to 2009. Although the husband's explanation of the movement of funds did not cover each of the cheque amounts referred to by the wife, I found his explanation to be plausible. The husband said there were some gains and losses with CommSec but overall the net effect of CommSec trading was a negative one.
102 I have considered the evidence carefully. It does not establish that an amount of $960,000 is missing.
103 The performance of Company A dropped and profits reduced. In 2009 and 2010 business conditions continued to deteriorate and in 2010 the husband and Mr C disposed of other [businesses].
Sale of Property C and the deed of loan
104 The husband deposed that to secure the continuation of the lease for Company A, he and Mr C through the business proposed to pay for renovations to the premises. He further deposed that agreement was reached to this effect with the landlord on condition that works commenced by June 2010. To fund the renovations the husband deposed he persuaded his mother to sell Property C and allow him to use all of the proceeds. The husband also sold shares in Business Venture A.
105 Property C was sold for $950,000 on 15 April 2010. On 29 April 2010 the husband received the entire net proceeds. [The amount of] $50,000 was applied to repayment of a loan and the balance of $879,206 was paid into his account from which were deducted settlement expenses. The funds were applied to a [fit-out] and a building upgrade of the Suburb B business premises. As Property C secured loans to the business, Bank A required the replacement of the security and the second respondent provided her property at [Property F] as security.
106 On 29 April 2010 a deed of loan was executed by the husband and the second respondent. The husband explained that he and the second respondent considered their shares in Property C to be 10% his and 90% hers. He described the loan as a commercial arrangement between him and his mother resulting from the property they owned together.
107 The deed of loan became Exhibit 49. It recites that the second respondent provided a loan to the husband of $950,000. The second respondent deposed this comprised her 90% share of the net sale proceeds being $836,285 together with miscellaneous loans totalling $113,360 ("the miscellaneous loans"). The deed of loan provides for interest at the rate of 5%. The term of the loan is that it is repayable on 90 days prior written demand.
108 The wife's position is that the deed of loan is a sham. Her position is that Property C was always the husband's and that the second respondent had assisted him financially to purchase his first property as she had done with her other children.
109 The husband deposed that the second respondent managed the rental of Property C and he and she each paid a share of the shortfall between the rent received and the mortgage repayments with the second respondent paying the greater share.
110 There were no documents to demonstrate the financial arrangements in relation to the property prior to 2000. However in the context of Property C being used as security for his loan to buy 50% of Company A in 1995 the husband said that was possibly the reason he paid the outgoings.
111 Documents after that date indicate that the husband paid outgoings and the interest on the loan was apportioned between Property C and the business by his former accountant. Between 2004 and 2010 the husband received the rent, although he said there were periods when he and the second respondent both received rent. The husband paid the interest on the loan, the expenses pertaining to the property and claimed the depreciation. When this was put to the husband his explanation was that after the loan was paid in full the "dynamics changed". In an application to CommSec the husband referred to his ownership of two investment properties, one of which was Property C. Upon the sale of Property C the husband disclosed the whole of the capital gain of $87,729 in his tax return.
112 In relation to the alleged loan the wife pointed out that the funds which had been allocated to business purposes were not recorded as a loan in the financial statements of the business. The husband responded to this by saying the loan was separate from the business and was a commercial arrangement between himself and the second respondent. Other loans from the second respondent had been recorded in the financial statements, but the husband said because he had a business partner at the time, who was very motivated to exit the business, he did not want to "muddy the waters by the capital injection".
113 When the husband was asked why small loans from the second respondent were recorded in the financial statements of the business, but a significant loan of $950,000 was not, the husband was unable to say stating he could not answer for the accountancy practices of different firms of accountants.
114 The wife pointed out to the husband that in the deed of loan the second respondent charged him 5% interest on the loan and yet he charged no interest on the loans he provided to the business. The wife said such interest if charged to the business would have been tax deductible.
115 The husband said it was connected to Mr C retiring from the business and he did not want complex financial arrangements at the time.
116 The wife submitted that the second respondent charging 5% interest on the loan was inconsistent with her also giving Property F to the bank as security.
117 The wife questioned why in 2010 the husband undertook a fit out of a building he did not own when he was in a dire financial position and why he did not apply funds to outstanding loans. She said the husband did not inform her that he owed the second respondent $950,000 and that a deed of loan existed. The first she knew of it was in August 2016 in these proceedings.
118 The wife was sceptical of the alleged miscellaneous loans. For example she questioned why the husband would borrow $500 from the second respondent in 2000, the year in which he purchased a new Motor Vehicle B for $160,000. The wife also questioned other alleged loans, for example a payment of $1,000 on 28 January 2004, when the husband's [Bank A] account had a credit balance of $69,665 and the account did not show the funds going into it.
119 Financial statements of the husband were not consistent with the asserted loans. They recorded a loan from the second respondent to the husband in the years 1997 to 2018 but at the relevant times the amounts did not tally with the statement of miscellaneous loans from the second respondent. The financial statements of the husband did not record a loan of the sale proceeds of Property C at all. The husband explained that he and the second respondent had been partners in business since 1989. He said they lean on each other. He said money flows from one party to another and substantial amounts were documented. The husband said the outstanding amounts have to be paid back sometime.
120 The wife's criticisms with respect to the deed of loan included the following:
• the first page has no page number;
• the second and third pages are numbered;
• the first page is the only page showing the amount of the loan;
• the top of the first page is missing a day and month;
• page 1 refers to 1.1, but over the page 1.2 is missing;
•the first page is missing the footer, but the second and third pages have the footer; and
•there is no term of repayment in the agreement. 4.1 refers to 90 days on a written demand.
121 The husband's enquiries revealed that the wife had already contacted the solicitors who took over from those who had drafted the deed of loan and she had received correspondence from them which she had not disclosed. That correspondence was a letter from [Law Firm A] to the effect that the deed of loan and their copy on file were the same and nothing was missing or changed. The correspondence provided an explanation for the asserted defects.
122 At trial the amount of the husband's loan to the second respondent pursuant to the deed of loan was asserted to be $1,547,449.
123 In Biltoft and Biltoft (1995) FLC 92-614 the Full Court said:
Notwithstanding the general practice which has developed, the Court has indicated that it may properly determine not to take into account or to discount the value of an unsecured liability in certain circumstances. Such liabilities would include but are not limited to a liability which is vague or uncertain, if it is unlikely to be enforced or if it was unreasonably incurred.
124 The Full Court in Rodgers and Rodgers (No. 2) (2016) FLC 93-712 confirmed what was said in Biltoft (supra) at [41] to [42] where it said:
41.The usual practice or “rule” sits comfortably and conformably within that rubric — in many cases, perhaps almost all, liabilities will be deducted from the “gross” value of the property because it will be clear (and even if not expressly stated, determined) that the justice and equity of the case demands that the liabilities should be met by the parties in the proportions in which the court determines the property is to be divided. Liabilities that are vague, uncertain, unlikely to be enforced and the like might be treated differently because those circumstances might, in the circumstances of the particular case, render it unjust and inequitable for liabilities to be deducted in that manner. Those so-called “exceptional cases” are but instances of the broader consideration of the justice and equity of the particular case.
42.We conclude, therefore, that:
•the failure of the trial judge to include the calculated taxation liability as a liability to be deducted so as to arrive at the value of the parties’ property is not, of itself, an error of law; and
• it was within discretion for her Honour to treat the liability as a matter to be considered by reference to s 79(4)(e).
125 The second respondent contributed funds to the acquisition of Property C. In doing so I accept she assisted the husband as she had done with his siblings. I am unable to make a finding as to whether the siblings are or are not required to repay loans made to them by the second respondent. There is no evidence that deeds of loan were executed to record their loans or that they were required to pay interest. The siblings were not called as witnesses by a party. In the context of his siblings the husband said there would be a "day of reckoning" and that the loans would have to be paid back "sometime somehow".
126 I am not entirely sure of the extent to which the second respondent contributed to the loan repayments of Property C in the early years. I am however satisfied that in the later years and most probably after 1995 when the property was used as security for the husband's loan to purchase his interest in Company A, to all intents and purposes this property was treated as that of the husband and he was largely responsible for the financial arrangements pertaining to it.
127 I do not accept that ownership of Property C was 90% to the second respondent and 10% to the husband, nor that the sale proceeds ought to have been or in fact were divided in those proportions.
128 Having regard to the relationship between the second respondent and the husband and the second respondent's practice of providing funds to her children without interest, I do not accept that interest at 5% is payable by the husband on any sum which may be due by him to the second respondent.
129 The alleged miscellaneous loans totalling $113,360 are in my view vague and uncertain. The wife's criticisms are valid ones. They include circumstances where loans were allegedly made to the husband in amounts which do not appear to have reached his bank account and occurred at times when his account had a significant credit balance. I do not accept that the payments to the extent that they were received, were loans. Similarly, the inconsistency in the way in which loans from the second respondent were treated in the financial statements of the husband and the business gives rise to further uncertainty.
130 I consider the deed of loan was constructed at a time when the husband and the second respondent sought to protect their interests against a background of marital disharmony between the parties. The second respondent and the husband at that time enjoyed a close and financially supportive relationship and they continue to do so.
131 At best the second respondent provided the husband with a contribution towards the purchase of Property C. The financial history suggests it was limited to this payment and not much more. I consider it unlikely that the second respondent intends to enforce a debt of $1.5 million against the husband.
132 In the circumstances as discussed above, I do not intend to take this alleged liability into account in determining the existing interests of the parties in their property. I will take into account the husband's receipt of the entire sale proceeds of Property C and its application to Company A when considering the parties respective contributions.
133 Having regard to my findings with respect to the deed of loan, it follows that I decline to make the declaration sought by the second respondent that the funds which are the subject of the deed or loan are due and owing and payable in accordance with the deed. Further, I decline to make the order sought that within 90 days of orders and upon written demand from the second respondent, the parties pay or cause to be paid monies to her as set out in the deed of loan.
Later financial history
134 The husband deposed that after the GFC, the parties' financial situation gradually began to recover, although their debt levels and mortgage payments remained significant. The wife ceased work at Company A and in 2012 began a TAFE course in a Diploma of Business which she completed in 2015. The turnover levels of Company A increased and returned to pre-GFC levels. In the financial years 2014 to 2016 the turnover was between $2.5 million to $2.6 million.
Purchase and sale of shares in Entity E trading as Company A
135 Mr C sought to withdraw from Company A and the husband deposed that in April 2014 he bought out Mr C's 50% share for $240,000. The husband deposed that Mr C also received a benefit of about $60,000 by receiving tickets to [Sporting Team A games] in the box which was maintained by Company A.
136 The husband further deposed that a short time later, in 2014 he sold 25% of his shares in Entity E (which later became Entity A) to the second respondent for $150,000. He deposed the pricing formula was the same as with Mr C however the transaction price was different due to stock and debtor levels at the time.
137 The wife's position was that the transfer of shares was a means by which the husband attempted to reduce his asset base. The wife pointed to various inconsistencies between the evidence of the husband and the second respondent and between their evidence and the documentary evidence.
138 In her affidavit sworn 6 November 2017 the second respondent deposed she acquired her shares in the business in 2013 for $150,000. She deposed that Mr C wanted to sell out of the business and that the husband acquired half of his shares and she acquired the remaining half. She further deposed that to fund the purchase she sold shares totalling $115,000 and the remaining $35,000 was contributed by the husband from outstanding loans. Immediately after swearing her affidavit, the second respondent corrected it and a letter from her then solicitors, [Law Firm B], dated 7 November 2017 was sent to the husband's solicitors to the effect that the loans which made up the $35,000 as stated in the affidavit were incorrect and the letter contained the correct position.
139 There was inconsistency between the husband and the second respondent in relation to these loans and in particular whether a $20,000 loan made on 26 August 2010 was outstanding or not. The husband was referred to a list which became Exhibit 58 which he said were funds provided by the second respondent to him in 2010 and 2016 which were still outstanding. However the first item on the list was a loan dated 26 August 2010 which had been applied in part payment of the shares in Company A according to the second respondent and the said letter from Law Firm B.
140 In her affidavit sworn 12 January 2018, the second respondent deposed that Mr C sold his interest in Company A to her and the husband in 2014. She deposed they each acquired 250 shares and that the price was $150,000. She confirmed that the loans to the husband totalling $35,000 as set out in Law Firm B's said letter were applied to the purchase. She deposed that to fund the remaining $115,000 she sold shares to a value of $41,370 and the balance was from funds in her account.
141 A cheque for $115,000 dated 2 August 2013 was paid to the husband at that time. The Bank C deposit slip dated 2 August 2013 became Exhibit 60. Handwritten on the deposit slip are the words "interest free loan from [Ms Wardon Snr]". Both the husband and the second respondent denied this payment was an interest free loan. Neither could explain why those words were written on the deposit slip. The husband said Mr C wanted to delay his exit from the business until after the [Season A] period and therefore the transaction by which the second respondent acquired 25% of the shares did not take place until April 2014. The ASIC certificate records the second respondent's acquisition of the shares on 7 April 2014.
142 The balance sheet for Mr Wardon became Exhibit 61. In 2013 a loan from the second respondent was recorded as a financial liability in the sum of $47,216. In 2014 that loan did not reduce as would have been expected had $35,000 of loans been applied to the purchase price of the shares. In fact the loan increased by $115,000 to $162,216. This is consistent with what was written on the Bank C deposit slip and the evidence of the husband and the second respondent is inconsistent with this entry in the balance sheet. In 2015 and 2016 the same amount appears as a loan from the second respondent and it increased to $179,216 in 2017 and 2018. The husband said he did not know why this amount was recorded as a loan and he said he did not bother reading the financial statements. In contrast, his accountant, [Mr E] confirmed that the amount of $115,000 appeared as a loan. He said his client is responsible for the information he inputs in accounts and he works on the information provided.
143 The wife's counsel submitted the second respondent's 25% share in Company A is either the alter ego of the husband, in that the second respondent has not taken any distributions and the husband uses the second respondent's share for his purposes. The wife's counsel submitted if not his alter ego it is a financial resource available to the husband. He submitted accordingly the value of the business to the husband is 100%.
144 It is necessary to look at the facts of the matter. I consider it more probable than not that the second respondent paid the sum of $115,000 in 2013 to the husband by way of a loan. Subsequently the husband and the second respondent attributed those funds to the purchase price of shares. Had the $115,000 been payment for the shares, it would not be recorded in the husband's financial statements as a loan and appear as such for several consecutive years. It cannot be both the purchase price of the shares and a loan.
145 Prior to 2019 the second respondent did not take dividends from Company A. Those dividends to which she was entitled remained in the business and the husband applied them to his own use. The second respondent said she only needed her wages and it was her choice not to take dividends or directors fees. Mr E confirmed that as the second respondent did not take her dividends, they were available to the husband. The second respondent's dividends were applied to legal costs of the husband.
146 Between late 2019 and 2020 the second respondent drew from her dividends and those funds were applied to the husband's purposes, in particular repayment of his loans with the Bank A.
147 I reject the husband's assertion to the effect that after the second respondent became a shareholder he was not able to manage the business finances with the same degree of autonomy and flexibility as he had when in business with Mr C. There is little, if any evidence that the second respondent played a part in the management of the business. She is employed there. I find the husband retained the same autonomy as he had previously enjoyed.
148 As stated the husband and the second respondent enjoy a close relationship and one in which the second respondent has been and continues to be financially supportive to the husband. The payment of $115,000 was noted on the deposit slip as an interest free loan and consistent with that notation, it was and continues to be recorded in the husband's financial statements as such.
149 Upon the facts I find that the company is the alter ego of the husband. As such I accept the wife's submission to the effect that 100% of the value of Company A should be ascribed to the husband in the balance sheet.
150 Having regard to my findings above, I refuse the declaration sought by the second respondent that neither the applicant nor the first respondent have any interest in the 250 shares in Entity A issued to the second respondent and held in her name.
151 The second respondent's financial support to the husband is to be recognised either when considering the parties' respective contributions or when considering matters relevant to s 75(2) of the Act.
Financial circumstances prior to separation
152 In 2014 the husband started a manufacturing company called Company B which supplied [goods] to other [business ventures]. The turnover and profits of the business were modest.
153 The wife began teaching music and charged $50 per lesson. She had a small number of students who came to the parties' home.
154 In 2014 Child A commenced Year 4 at School A. The husband paid the school fees until the parties separated, after which time the fees were paid by the second respondent.
Separation
155 The wife suffered mental health difficulties and in December 2014 admitted herself to hospital. The parties attended counselling.
156 In around August 2015 the parties separated under one-roof.
157 In November 2015, Bank A approved the application by Entity A for finance in an additional sum of $200,000. The loans were secured over Entity A and by existing guarantees and indemnities given by the husband and the second respondent as set out in the letter from the Bank A to the directors of Entity A dated 27 November 2015 which became Exhibit 89.
158 In December 2015, the husband purchased a 50% interest in a wholesale business, Entity C, trading as Company C. The second respondent provided the husband with $50,000 to enable him to purchase that interest in Entity C. In 2018 the business closed down after a falling out between the parties.
159 The husband left the family home in March 2016. The parties disagreed as to the extent to which the husband would have access to the home for business purposes. The husband maintained that a lack of access to the home had a direct impact on the profitability of Company A, something the wife did not accept. She pointed out that profit margins were significant at that time, the husband had said the business was trading well and it was therefore open to him to rent warehouse space, the cost of which would be tax deductible. I accept it is cost effective for the husband to use part of Property B for business purposes.
160 In 2016 the husband was assessed to pay child support of about $230 per month which he paid for about a year. Thereafter child support was assessed in minimal amounts. With assistance from the second respondent the husband paid medical and education expenses for the children. The husband paid some outgoings relating to Property B.
161 Between June and September 2016 the second respondent paid between $400 and $500 per week to the wife. At this time the wife had a friendship with Mr A.
162 On 15 July 2016, the second respondent wrote to the wife informing her that she had revised the payment of $500 per week down to $400 per week as it had been brought to her attention that the wife had re-partnered.
163 The wife had started a part-time job working four days a week. She earned $25 per hour, but was subsequently made redundant.
164 In August 2016 the second respondent wrote again to the wife informing her that the funds she was depositing to the wife's bank account on behalf of the husband were suspended by reason of "your de facto (lodger) residing at Mr Wardon's house for some time now". The second respondent stated that should the wife require reinstatement of supplementary funds (loans) she would do so after verification of the wife's remuneration from her employer and information regarding her de facto partner's contribution to rent and house expenses.
165 The wife received Centrelink benefits.
166 In 2016 the husband removed the Motor Vehicle A from the wife. He provided her with Motor Vehicle B which was transferred to the wife's name in December 2016. She said it was not roadworthy. She borrowed a car from a friend which was cheaper to run and a friend assisted with the cost of petrol. Motor Vehicle B is unregistered. The wife cannot afford the cost of repair.
167 As at January 2017, the husband's Bank A home loan security structure was as set out below.
Borrower
Original Limit
Account
EndingSecurity
[Mr Wardon]
$2,000,000
[1111]
[Property B, Property A]
[Mr Wardon]
$1,250,000
[2222]
[Property B, Property A]
[Mr Wardon]
$2,000,000
[3333]
[Property B, Property A]
Consumer guarantee for $2 million given by [Ms Wardon Snr] supported by:
[Property F]
[Property G]
168 The husband sent an email to the wife on 2 March 2017 in which he stated "I think it only fair that I notify you of your upcoming liabilities and our intent to change the arrangements of utility payments in light of the exponential increases". He wrote that it was unsustainable to continue subsiding the living arrangements of the "hangers on the [Wardon] family home". The latest electricity bill for Property B was $2,671 and the husband analysed this cost in the email. He said "we" will cover the bill and make arrangements to put the account in the wife's name. He pointed out that there were other accounts falling due.
169 In cross-examination the husband showed the wife a series of photographs depicting Mr A's car at Property B. The wife confirmed it was parked at the house because he lent it to her while hers was being fixed. Mr A also came to the home to assist her with the Court documents. The wife was extensively cross‑examined about her relationship with Mr A. I am satisfied that he provided financial and emotional support to her. They were in a romantic relationship, but I am satisfied they were not in a de facto relationship.
170 The wife said and I accept, that she struggled financially. She described the measures she took to reduce her utility bills when the husband stopped assisting her with them.
171 The wife said the husband disconnected the internet in August 2017. She used to take the children in the car to public areas where there was internet at the car park so they could do their homework.
172 By late 2017 the husband was receiving between $27,500 and $35,000 per month from Company A. He also received gross rent from Property A of $2,218 per month. He calculated he received between $29,700 to $37,200 per month available to pay Bank A loans in the sum of $12,000, $8,000 and $11,750 per month, a total of $31,750 per month. He deposed the funds he received from Company A was off-set against the balance in his loan account. This is discussed further below. As at November 2017, the husband was paying child support of $53 per week pursuant to an assessment. The school fees were paid by the second respondent.
173 In late 2018, the husband and the second respondent negotiated a $50,000 extension of finance from Bank A, all of which was used to meet liabilities to creditors.
174 Based on the husband's 2018 tax return, child support was assessed in the sum of $247 per week and payments were to commence in August 2019. This gave rise to the first child support payment in 18 months. As I understand the wife's evidence, there was an amendment to the husband's tax return and she did not receive this child support.
(ib)because of the earning capacity of either parent; or
…
363 By agreement of the parties Child B attends School A.
364 The husband's income and earning capacity is significantly greater than that of the wife. I also take into account his financial resources and his commitments, including the order for spousal maintenance which I intend to make.
365 The wife does not have the capacity to contribute to the support of the children.
366 I am satisfied that the grounds are established and amount to special circumstances within the meaning of s 117 of the Assessment Act.
367 The parties have a primary duty to maintain the children. That duty has priority over all other commitments, other than those necessary to enable the parties to support themselves. At Part N of the wife's said financial statement, she set out the weekly expenses for both children as required in the sum of $832. The wife has not apportioned the expenses for the children between them. Although Child B attends a private school, the wife's weekly expenses do not include school fees. These are paid on behalf of the husband by the second respondent.
368 If I make the orders sought by the wife, hardship would not be caused to the husband as he consents to the order sought and his income and financial resources are such that he will be able to meet the amount ordered. If I refuse to make the orders sought, the wife will suffer hardship in that her income does not enable her to meet the proper needs of the children and the additional expenses which she seeks to have the husband pay.
369 I am therefore satisfied it would be just and equitable as regards the children, the wife as the carer entitled to child support and the husband as the liable parent to make the order sought.
370 I refer above to the parties' primary duty to maintain the children. The wife is in receipt of Centrelink benefits. At this time she has no capacity to contribute to the financial support of the children and is unlikely to be able to do so in any meaningful way in the immediate future. I am therefore satisfied it would be otherwise proper to make the order sought.
371 I am further satisfied that pursuant to s 124(1) of the Assessment Act, it would be just and equitable as regards the children, the wife and the husband and otherwise proper to make an order that the husband provide child support for the children other than in the form of periodic amounts by way of education and extracurricular costs and health costs for the children.
372 I am further satisfied that the child support payable otherwise than in the form of periodic amounts should be paid in addition to the periodic child support payable.
THE PROPOSED CHILD SUPPORT ORDERS
373 Subject to hearing from the parties I propose to make the following orders.
By consent:
1Pursuant to section 117 of the Child Support (Assessment) Act 1989 (Cth) there be a departure from the administrative assessment of child support payable by the husband to the wife in respect of the children [Child A] born [in] 2005 and [Child B] born [in] 2007 ("the children") such that from 11 March 2020 the rate of child support for the children shall be $250 per week per child, such sum to be paid on a weekly basis, the first payment to be made within 7 days of 11 March 2020, until the date of a terminating event.
2The periodic child support referred to in order 1 shall be varied on 1 July in each year (commencing 1 July 2021) by increasing the amount payable by the child support inflation factor.
3Pursuant to section 124 of the Assessment Act, from 11 March 2020 the husband provide child support for the children otherwise than in the form of periodic amounts paid to the wife as and when they fall due as follows:
(a)all school fees, costs of extracurricular and sporting activities, uniforms and school supplies for the children; and
(b)all health costs for the children.
4Pursuant to section 125(2) of the Assessment Act, the child support payable by the husband under orders 1 and 2 will not be reduced by the child support ordered to be provided pursuant to order 3.
PROCEDURAL ORDERS
1The following applications be and are hereby dismissed:
(a)the form 1A response filed by the second respondent on 10 January 2018;
(b)the application in a case filed by the husband on 1 June 2018;
(c)the application in a case filed by the husband on 14 November 2018, and response filed by the wife on 26 November 2018;
(d)the application in a case filed by the wife on 28 November 2018;
(e)the application in a case filed by the husband on 27 November 2018;
(f)the application in a case filed by the wife on 2 October 2019 and response filed by the husband on 13 November 2019; and
(g)the application in a case filed by the husband on 24 February 2020.
2The proceedings insofar as they relate to the financial matters be otherwise dismissed.
3All documents produced by named persons pursuant to subpoena in relation to financial matters be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
4In relation to material tendered as an exhibit into evidence in these proceedings:
(a)all parties must collect the exhibits tendered by them ("their exhibits"), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today's date;
(b)all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits; and
(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the Court without notice to the parties.
5In the event of an appeal being lodged prior to the expiration period of 42 days, orders 3 and 4 above do not apply.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
Associate
17 JULY 2020
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