WILKINSON & KEMP
[2020] FCCA 69
•16 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WILKINSON & KEMP | [2020] FCCA 69 |
| Catchwords: FAMILY LAW – Property – prior hearing ordered husband to pay wife monies and costs – wife sought superannuation splitting order in alternative but alternative order not made by primary Judge – husband voluntarily entered bankruptcy before time for payment expired – wife’s application for superannuation splitting order – Court’s duty to endeavour to ascertain rights of self represented litigants – machinery provisions power to amend s.79 order – variation of orders after default s.79A(1)(c). |
| Legislation: Family Law Act 1975 (Cth), ss.75(2), 79, 79A, 79A(1)(b), 79A(1)(c), 90XT(1)(a), 90XE, 106A, 117 |
| Cases cited: Neil v Nott (1994) 121 ALR 148 |
| Applicant: | MS WILKINSON |
| Respondent: | MR KEMP |
| File Number: | SYC 7637 of 2012 |
| Judgment of: | Judge B Smith |
| Hearing date: | 15 March 2019 |
| Date of Last Submission: | 15 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 16 January 2020 |
REPRESENTATION
| The Applicant appeared in person |
| The Respondent appeared in person |
ORDERS
Within three (3) months from 17 June 2015, the respondent, Mr Kemp born … 1966, pay the applicant, Ms Wilkinson born … 1983 the sum of $45,352.42 by way of settlement of property.
Except as otherwise provided for in these Orders:
(a)Each party will be solely entitled, to the exclusion of the other, to all other property including real property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders and that for this purpose bank accounts are deemed to be in the possession of the party whose name appears on the bank’s record thereof, insurance policies are deemed to be in the possession of the owner of the policy, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements; and
(b)Each party is to be solely liable for and indemnify the other party against any debts or liabilities in their respective names.
Within three (3) months of 24 August 2015, the respondent is to pay the applicant’s costs as ordered by the Order of 29 April 2014 in the sum of $2,060.00.
All other extant Applications be dismissed.
If Order 1 herein has not been complied with by 18 September 2015 then Orders 6-9 below shall take effect.
That the base amounts of $45,352.42 is allocated, as required by Section 90XT(1)(a) of the Family Law Act 1975, to the applicant out of the interest held by the respondent in Superannuation Fund A.
That whenever a splittable payment within the meaning of Section 90XE of the Act becomes payable to or on behalf of the respondent from his interest in Superannuation Fund A, the trustee shall pay the applicant the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, and make a corresponding reduction in the entitlement the respondent would have had but for these Orders.
That this Order has effect from the operative time.
That the operative time is 19 September 2015.
If Order 3 above has not been complied with by 25 November 2015 then Orders 11-14 shall take effect in the alternative.
That the base amount of $2,060.00 is allocated, as required by Section 90XT(1)(a) of the Family Law Act 1975, to the applicant out of the interest held by the respondent in Superannuation Fund A.
That whenever a splittable payment within the meaning of Section 90XE of the Act becomes payable to or on behalf of the respondent from his interest in Superannuation Fund A, the trustee shall pay the applicant the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, and make a corresponding reduction in the entitlement the respondent would have had but for these Orders.
That this Order has effect from the operative time.
That the operative time is 26 November 2015.
That this Order binds the Trustee of Superannuation Fund A.
That the respondent shall do all things necessary and sign all documents necessary to give effect to these Orders. In the event that the respondent refuses or neglects to do all things necessary and sign all documents necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to s.106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the document.
As the Court has found that the respondent has not complied with Order 1 or with Order 3, the provisions Orders 6-9 and of Orders 11-14 apply forthwith.
IT IS NOTED that publication of this judgment under the pseudonym Wilkinson & Kemp is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7637 of 2012
| MS WILKINSON |
Applicant
And
| MR KEMP |
Respondent
REASONS FOR JUDGMENT
A: Introduction and overview
Parties
The Applicant, Ms Wilkinson (“the wife”) born … 1983, is 36 years old. The wife now works as an officeworker.
The Respondent, Mr Kemp (“the husband”) born … 1966, is 53 years old. He is and at all relevant times has been a public servant employed by the Employer B.
Both parties were self-represented.
The issue
The issue for determination is whether the Court should vary s.79 property orders and consequential costs orders made following a final property hearing, either by way of the machinery provisions power or pursuant to s.79A of the Family Law Act 1975 (Cth) (“the Act”).
Brief background
The parties relationship history was summarised in the Reasons for Judgment of this Court of 17 June 2015, Kemp & Wilkinson [2015] FCCA 1621 (“the primary judgment”), following a contested property hearing (“the primary hearing”).
In summary the husband was born in Country C. The wife in Country D. They met on the internet in December 2009 and in person in July 2010. The wife moved to Australia to join the husband on 22 March 2011 and the parties commenced cohabitation. They married on … 2011. The parties had a son [X] (“the child”) on … 2012. [X] is now 8. The parties separated on 15 October 2012.
Primary and costs orders
The Court ordered the husband to pay the respondent the sum of $45,352.42 within 3 months and otherwise ordered each party to be entitled to and liable for their own assets and liabilities. The wife had sought a superannuation splitting order in the alternative, but that order was not made.
On 24 August 2015 the Court ordered the husband to pay the wife’s costs in the sum of $2,560 and again allowed the husband 3 months to pay. Kemp & Wilkinson (No.2) [2015] FCCA 2268.
The total was $47,912.42.
Husband’s bankruptcy
The husband voluntarily entered bankruptcy on 27 August 2015, prior to the expiration of the 3 months allowed for payment. The orders were therefore not enforceable. The husband exited bankruptcy on 28 August 2018. The husband voluntarily re-entered bankruptcy again on 2 January 2019 just prior to the hearing of this application. In each case the sole declared creditor was the wife.
Wife’s application
The wife seeks a superannuation splitting order to give effect to the intention of the primary and costs judgments and orders.
The wife’s application was formulated pursuant to s.79A. However, as both parties were self-represented this has required the Court to “assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.” Per Neil v Nott (1994) 121 ALR 148 at [5].
On that basis I have also considered whether the effect of the primary and costs orders can, and if so should, be given effect by varying the primary and costs orders made by adding machinery provisions by way of a superannuation splitting order in the event of default of payment.
B: Primary proceedings
The husband commenced proceedings seeking property and parenting orders on 19 December 2012, two months post separation. The parenting proceedings were resolved by consent on 29 July 2013 with the child to live with the mother and spend increasing time with the father through to age six, including school holiday and special occasions.
The competing property applications were heard on 21 October 2014. The husband’s case was that there should be no property adjustment. The wife sought a s79 adjustment.
There was no appeal from the primary or costs judgments. They speak for themselves and should be read with these Reasons. However, for convenience I set out some of the key findings of fact.
At hearing the Court found that the parties’ total identified assets excluding superannuation were $22,811.29 and that the parties’ total liabilities were $631.85. The known net assets were therefore $22,179.44, of which the wife owned $6,427.46 net and the husband $15,751.98 net.
The husband’s superannuation with Superannuation Fund A (“the superannuation trustee”) was then $65,311.47, the husband’s Country C superannuation was found by the Court to be “$UKNOWN”, and the wife’s retirement fund in Country D, which was dealt with as if superannuation, was $571. That was $65,882.47. The husband’s undisclosed superannuation in Country C is referred to further below.
The Court found that the husband “transferred various amounts of the E Bank accounts only five days after the parties separated totalling $170,837.50” and that in December 2012 he sold the former matrimonial home (“the house”) which he had brought to the relationship and received net proceeds of $124,185.85.
The Court found that it was appropriate to take into account the $170,837.50 as a notional “addback” to the husband’s assets.
It is not clear what if any finding were made in relation to the $124,185.85 received by the husband consequent on the sale of the house, however, it was not “added back” at that time.
Taking into account total known assets and total liabilities and notionally taking into account the “addback”, the Court determined the relevant figure for consideration excluding superannuation to be $193,016.94 With superannuation included, the figure was therefore $258,899.41.
In the context of a short marriage with a child, the Court found that the husband’s contributions were 90% and the wife’s 10%, but that the s75(2) factors favoured the wife requiring a further adjustment of 10% in favour of the wife, bringing the wife’s position to 20% of the total.
To achieve 20% of the total the Court found that a property adjustment was required to the wife from the husband in the sum of $45,352.42. With the costs order for $2,560 the total payable was $47,912.42.
C: Husband’s first bankruptcy
On 19 August 2015 the husband filed a Declaration of Intention to Present a Debtor’s Petition stating that his only asset was $700 in his bank account. His only debts were the judgment debts to the wife. His annual income was stated to be $74,341.00.
The husband was declared bankrupt as of 27 August 2015. The Report to Creditors of 8 October 2015 identified assets of $1,566 and superannuation of $65,311. The wife remained the only creditor. The husband was not required to contribute given his income. The date of discharged was 28 August 2018.
The Official Trustee noted that enquiries were to be made in respect of the net proceeds of the house, but there is no evidence that any enquiries were made.
D: Wife’s attempt to enforce judgment debts
The wife’s attempt to enforce the judgment debts was dismissed on 10 December 2015 due to the husband’s bankruptcy, Wilkinson & Kemp [2015] FCA 3308.
The wife filed an application for final orders seeking a superannuation split on 12 April 2016. The matter came before another Judge of the Court on 20 June 2016. It is recorded, Wilkinson & Kemp [2016] FCCA 1628 at [1], that “When the matter came on before me on 20 June 2016 the application was withdrawn and dismissed.”
The Court noted at paragraph [2] that “It appears that final property orders were made on 17 June 2015 and the only remedy [the wife] might have would be by way of section 79A”. No reference was made to the possible application of the machinery provision powers of the Court, considered further below.
At Order 2 the Court ordered the wife to pay the husband $500 in costs, noting neither party was represented. I note that this Judgment in respect of the husband’s costs incorrectly proceeded on the basis that the wife had previously been ordered to pay the husband’s costs of $2,560, rather than the other way around, which appears to have influenced the decision to award costs of $500 against the wife.
E: This Application
The matter came before a further Judge of this Court on 6 December 2016 in respect of the husband’s application in a case filed 27 September 2016 to enforce the judgment for his $500 costs.
On that date that Judge dismissed the husband’s application and made orders granting the wife leave to file and serve an amended application pursuant to s79A, with consequential orders for filing of materials, procedural fairness notices to the superannuation trustee and referral to a conciliation conference.
The wife filed an Initiating Application on 31 January 2017 in compliance with those orders. The wife seeks orders for superannuation splitting in the sum of the two outstanding judgment sums.
On 27 March 2017 the superannuation trustee wrote advising that they did not have any objections to the proposed orders and did not wish to be heard in the proceedings. The Court file was noted to that effect by a Judge of the Court on 30 April 2018.
At that time the husband was still a bankrupt. The Official Trustee in Bankruptcy (“the Official Trustee”) was notified. The Official Trustee and wrote a letter dated 10 May 2017, addressed to the Court, to the effect that as the application was only in respect of superannuation, which is a non-divisible asset pursuant to s.116(2) of the Bankruptcy Act 1966 (Cth), The Official Trustee did not intend to take part in the proceedings and that the husband was “permitted to represent himself or to seek legal representation…”.
The husband’s bankruptcy was discharged on 28 August 2018.
On 19 December 2018 orders were made listing the proceedings for hearing on 15 March 2019 with orders for service of evidence and submissions.
F: Husband’s second bankruptcy
Between the directions hearing of 19 December 2018 and the hearing the husband again had himself declared a bankrupt as of 2 January 2019. His only disclosed debts were the wife’s judgment sums.
The husband objected to the s79A application being heard as he was again bankrupt. However, the Official Trustee had previously advised they did not object to these proceedings, which have continued, as they relate solely to an application for a superannuation splitting order, which cannot affect the Official Trustee’s position. On that basis the husband’s re-entry into bankruptcy does not affect the Court’s capacity to hear and determine the wife’s application.
G: Does the Court have the power to modify or vary the original order pursuant to “machinery provision” powers?
The intention of the Court was that the wife should receive the ordered sums. The wife originally sought a superannuation splitting order in the alternative. The Court did not make such an order in the alternative. Inferentially, given the primary judgment, this was because the Court considered that the husband both could and would comply with the orders noting his undisclosed assets which had been taken into account.
There was no appeal from the primary or costs orders by the wife in respect of the lack of an alternative superannuation splitting order. However, the time to appeal from the primary decision and orders had elapsed prior to the husband’s entry into bankruptcy.
It is well established, from as far back as In the Marriage of Molier and Van Wyk (1980) 7 Fam LR 18, that a Court exercising jurisdiction under the Act has power to amend orders to remedy a lacuna or gap required to give effect to the intent of the original orders.
In that case an order valuing the wife’s interest in real property and transferring it to the husband on payment by him to her of a sum within a certain period of time did not make provision for what would occur if he did not make the payment. When he did not make the payment it left the wife with no effective remedy.
The Full Court added an order allowing the forced sale of the property in the event of default of payment and requiring the wife’s interest be paid out of the proceeds of sale.
This was described as a “machinery provision” as it gave effect to the intention of the original judgment and orders without affecting the substantive rights of the parties. The Full Court said:
“It has been decided that while this Court has no power to vary an order for property settlement, it has power to enforce the order and to modify the machinery provisions of the order to effect enforcement provided that this does not affect the substantive property rights of the parties.”
And
“When the Court has made an order (… under section 79) settling or altering interests in property, it is established that the order may not be varied as to its substance, but only in regard to the machinery provisions which give it effect. The Court can, under general liberty to apply (or otherwise), make orders to give effect to its original order, by clarifying the intent of that order, or by altering its provisions in some manner which does not affect the parties' substantive rights.”
And
“In Kaljo it was held that an application can be made to the Court for further orders in relation to the implementation of the substantive order if such orders are necessary to give effect to the order or to work it out to cover unforeseen circumstances. This principle is, in our view, capable of extension to cover further orders necessary to give effect to the clear intention of the original order, where that order has failed to cover certain eventualities, including the failure to comply with an order for the settlement of a lump sum within the time prescribed.”
And
“It is an order which can properly be made under section 79 under the express liberty-- to apply contained in the order, or under the general liberty to apply available in respect of property orders. There is, in any event, in our view inherent power in the Court to make the original order effective in accordance with the substance and intention of that order.”
I am satisfied that it is open to this Court to vary the primary order pursuant to the power in the Court arising from the general liberty to apply and pursuant to the implied power of this Court as an inferior Court of law and equity to make such orders as are required to give effect to its decisions. I will consider whether the Court should exercise this power further below.
H: Does the case fall within section 79A?
The Court must also consider the issue of whether the wife’s application comes within s79A.
There was no miscarriage of justice within s79A(1)(a), nor have any exceptional circumstances arisen relating to the child within s79A(1)(d) and there are no proceeds of crime order enlivening s79A(1)(e).
S79A(1)(c) – default in carrying out an obligation
This provisions relates to circumstances where a person has:
“defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order”.
The husband has not complied, at any time, with these orders including during the times when he was not in bankruptcy, and is in default of the obligation imposed on him by the orders.
I am satisfied on all of the evidence that these proceedings come within s79(A)(1)(c).
S79A(1)(b) - impracticable
This provision applies where “in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out” within s79A(1)(b).
The wife submitted that the husband’s entry into bankruptcy in respect solely of the husband’s debts to the wife is a circumstance which has made the order “impracticable to be carried out”.
The husband’s submission was that it was “unlawful” for the order to be carried out because of the operation of the Bankruptcy Act rather than “impracticable” so that the proceedings do not fall within this provision.
While I do not accept the husband’s reasons for his submission, I do not consider that the facts in this case fall within the concept of impracticability as it applies in s79A(1)(b), noting for example that the commercial failure of a party post orders would not constitute impracticability.
Finding
I find that s79(A)(1)(c) does apply to the facts in this case and enlivens the discretion to vary the order. I consider whether, and if so how, the Court should exercise that discretion further below.
I: S79 re-assessment
As s79A applies it is necessary to reconsider the s79 issues.
No evidence was placed before me in respect of the issues relevant to the date of the primary hearing and I proceed on the basis that the factual findings in the primary judgement were correct at that time.
That is the starting point in terms of the known assets, liabilities and superannuation at the time of the primary judgment and of contributions during the relationship, and appropriate s75(2) adjustments at that time.
The husband did not file an up to date financial statement. His financial statement filed 14 February 2017 asserted he had $1,149 in assets, superannuation of $84,081, weekly income of $1,312 and expenditure of $1,273. The wife tendered documentary evidence, which I accept, from the Child Support Agency assessing his weekly taxable income for 2018 as a public servant at $1,520 per week. Documents from Superannuation Fund A showed that as at 13 September 2018 his superannuation was $112,505.68.
The husband’s superannuation has grown considerably since the primary orders consistent with his work as a public servant.
The wife’s financial statement dated 7 March 2019 disclosed assets of $520,508 primarily made up of a house, with liabilities of $423,551 primarily being the mortgage secured over the house, for net assets of $96,957, superannuation of $12,556, weekly income of $1,227 and expenses of $1,132.
The wife has used her income, which is and has been lower than the husband’s, to purchase and build equity in a house post separation and has also built a small superannuation balance.
The husband did not seek to explain in his evidence in these proceedings what had occurred to the $170,837.50 taken by him, or to the $124,185.85 received for the house, or to the $15,751.98 net which he had disclosed at the time of the primary hearing, noting that he has been employed as a public servant throughout.
Further, the wife’s affidavit included an email from the husband to her dated 1 June 2010 which included the statement inter alia that:
“I also have more money in Country C than I have here. I cannot access the cash until I am 57, which is the retirement age for Country C.”
There was no evidence or disclosure from the husband about his Country C superannuation or equivalent account either in the primary proceedings, where it was found to be “$UNKNOWN”, or in these proceedings.
I am comfortably satisfied and find, noting the matters for consideration in s140(2) of the Evidence Act 1995 (Cth) and the gravity of the allegations, that the husband has an undisclosed sum of money in Country C which he will be able to access in approximately 4 years when he turns 57 and which was not disclosed in these proceedings and the amount of which is not known. That is consistent with the primary judgment which noted the husband’s Country C superannuation at an unknown sum.
The wife’s affidavit also included an email from the husband to an unknown person named “Ms F” dated 16 March 2013. That email reads, inter alia:
“I have moved all my funds to (omitted) and deposits in Country C before she starts making claims and she is entitle to 50% of everything. When is the election in Country C?”
The primary judgment does not refer to this evidence, which may have been acquired after the primary hearing.
The husband did not dispute the authenticity of this email nor make submissions in respect of the issue. I give great weight to this email as an admission against interests which explains the disappearance of the $170,837.50 in cash, and which may also explain the $124,185.85 net received from the sale of the house, which in either case was the overwhelming majority of the husband’s and the parties assets.
I am comfortably satisfied and find that the husband moved assets from Australia to Country C post separation and prior to the primary hearing and failed to disclose those assets in the primary proceedings for the purpose of frustrating this Court’s capacity to do justice and equity between the parties and to defeat the wife’s legitimate interests pursuant to s79 of the Act. I am comfortably satisfied given this finding that, on the balance of probabilities, it is likely that the husband retains at least some portion of these sums in Country C and has intentionally not disclosed them in these proceedings.
Given the above findings it follows that I am also comfortably satisfied and find on the balance of probabilities and noting the totality of the evidence in the proceedings, that it is likely that the husband has failed to fully declare his assets outside of Australia to the Official Trustee, and has voluntarily entered into bankruptcy despite having undeclared assets solely in order to defeat the wife’s legitimate claims and to frustrate this Court’s processes.
I have considered the post primary decision evidence and there is nothing in the subsequent material which leads me to conclude that the quantum of the primary and costs orders were not and do not remain a just and equitable sum for payment by the husband to the wife.
J: Should the Court vary the original order pursuant to “machinery provision” powers?
The intention of the original orders was that the wife should receive a certain percentage of the total pool including superannuation. The orders made were ineffective because the husband had unilaterally removed the overwhelming majority of the non-superannuation assets from Australia prior to the primary hearing and then voluntarily entered bankruptcy.
If no order is made the wife will suffer a substantial injustice. I am satisfied that it is both just and equitable and also necessary to make a superannuation splitting order by way of a machinery provision amendment.
To ensure that there is no interference in the substantive rights of the parties the superannuation sums must be, as the wife seeks, in the sums originally ordered, and taking effect as at the date for payment of the original orders in order to give effect to the substance and intention of the primary order.
I note that I would arrive at this conclusion, even if I had not made the findings set out in paragraph’s 68, 72 and 73 above, on the basis that these machinery provision orders are necessary to give effect to the primary and costs judgment of this Court.
K: Should the Court vary the original order pursuant to s79A?
The proceedings fall within and enliven the jurisdiction pursuant to s79A.
The wife does not seek a higher re-assessment and merely seeks a variation to allow a superannuation splitting order effectively in the same form as the machinery provision order.
Having re-considered the s79 issues, including the parties post separation conduct and current known assets and liabilities and superannuation and the relevant s75(2) factors, I find that the original order remains just and equitable, subject to including a machinery provision to allow for superannuation splitting in default of payment by the husband.
L: Is the wife estopped from maintaining these proceedings?
The husband submitted that as a superannuation splitting order was not made in the primary proceedings the “application is stopped”. I take it by this the husband seeks to rely on a form of estoppel. However, the nature of the machinery provisions power and of s79A of the Act are inconsistent with the argument proposed by the husband.
The husband further submitted that having sought a superannuation splitting order in 2016 and having withdrawn the application the wife was required to Appeal rather than commence these proceedings.
By this I take it that the husband seeks to rely upon the form of estoppel now most commonly referred to as an “Anshun estoppel” by reference to Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 and the cases which follow and refine it, see for example Tomlinson v Ramsey Food Processing Pty Limited (2015-16) 256 CLR 507.
These principles may be broadly conceptualised as relating to fairness and reasonableness of in the conduct of litigation, as well as importing an element of the principle relating the need for finality in litigation. These are important principles.
However, in the context of these proceedings and given my findings above, I consider that the husband’s conduct both prior to and after the primary hearing preclude him from relying upon such arguments with regards the wife’s conduct in trying, mainly as a self-represented litigant with occasional legal assistance, to obtain the assistance of this Court in amending the primary and costs orders to give effect to the intention of the primary and costs judgment in the face of his ongoing improper conduct designed to defeat the processes of the Court.
Any weighing of the justice of the competing claims in this regard must come down firmly in favour of the wife and accordingly I would not find that any estoppel arises to bar the wife’s maintenance of these proceedings.
M: What should happen to the husband’s $500 costs order?
Although the Judge appeared to err in the basis for making the order, and the husband’s conduct has been intentionally designed to frustrate these proceedings, nevertheless the $500 costs order against the wife remains a valid order of this Court and the wife did not make any contrary submissions.
To achieve finality I consider the most appropriate course is to set this off against the wife’s costs order and reduce the superannuation splitting order in respect of the wife’s costs by $500.
N: Decision
In summary, I find that it is appropriate to exercise the Court’s power to make amendments to the primary and costs order by way of the machinery provisions power to give effect to the clear intent of those orders, and that this can be best achieved by making a superannuation splitting order in the same sums as contained in the primary and costs order, less $500 for the husband’s costs order, to take effect at the date that would have applied if these machinery provision orders had been contained in the original orders.
Further, and in the alternative, I find that s79A of the Act applies and that it is just and equitable to vary the primary and costs orders in the same way as I would by reference to the machinery provisions power.
O: Costs of this Application
The wife obtained some legal advice and was represented for some parts of these proceedings but not at hearing. She tendered evidence of those costs.
Given my findings above concerning the husband’s conduct this is, prima facie, a case in which it is arguable that costs should follow the event, and where even indemnity costs might be appropriate, within a proper application of s117 of the Act. That would be a matter for submissions.
In order to make an effective costs order in the circumstances of the husband’s bankruptcy the Court would need to consider whether it is appropriate to make further orders pursuant to s79A(1) to allow a sum for costs by way of a further superannuation splitting order.
If the wife seeks such further costs orders she should notify the husband and Chambers within 28 days so that the matter may be listed for submissions and argument in respect of costs. If no notification is given to the Court within that time there will be no order for costs.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge B Smith
Associate:
Date: 16 January 2020
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