WILKINSON & WILKINSON

[2014] FCCA 1722

FEDERAL CIRCUIT COURT OF AUSTRALIA

WILKINSON & WILKINSON [2014] FCCA 1722

Catchwords:
FAMILY LAW – Application for alteration of property interests – where the husband does not accept the jurisdiction of the court – how the court has jurisdiction – assessment of contribution and future needs – just and equitable orders.

Legislation:

Australian Constitution, ss.51

Family Law Act 1975, ss.39(1A,)75(2), 79, 114

Bevan & Bevan [2013] FamCAFC 116
Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395
Stanford & Stanford [2012] HCA 52

Applicant: MS WILKINSON

Respondent: MR WILKINSON

File Number: WOC 1166 of 2012

Judgment of: Judge Altobelli

Hearing date: 18 June 2014

Date of Last Submission: 18 June 2014

Delivered at: Wollongong

Delivered on: 12 September 2014

REPRESENTATION

Counsel for the Applicant: Ms Humphreys

Solicitors for the Applicant: Kells The Lawyers

Respondent: In person

ORDERS

(1)That within 42 days of these Orders, the Applicant sign all documents and do all things necessary to transfer to the Respondent all her title and interest in the property situated and known as Property W.

(2)That upon completion of the transfer pursuant to Order 1, the Respondent pay to the Applicant, by way of alteration of property interest, the sum of $113,981.52.

(3)That simultaneously with the transfer referred to in Order 1 the Respondent shall do all such acts and things necessary to refinance the mortgage secured over the property known as Property W into his sole name, and the Respondent shall indemnify and keep indemnified the Applicant in relation to all outgoings in respect of the said property.

(4)That if the Respondent fails to do any such act or thing to complete transfer pursuant to Orders 1, 2, 3 within the strict time frame set by these Orders, that the Respondent forgo his right to seek the Transfer of the property at Property W into his sole name.

(5)That failing compliance with Order 1, 2 and 3, that the Applicant be granted exclusive occupation of the property at Property W, and the Respondent vacate the property, leaving it in a fit and proper state.  Thereafter the Respondent be restrained from re-entering the property or otherwise interfering with the Applicant’s enjoyment of the same.

(6)That the Respondent continue to pay all mortgage payments, rates payments and any other outgoings in connection with the property until the date of vacating the property, and indemnify the Applicant regarding such payments.

(7)That both parties be restrained from further encumbering the property at Property W or otherwise making any further withdrawals against the mortgage of that property.

(8)That failing compliance with Order 1, 2 and 3, that the Applicant be provided an opportunity to transfer property at Property W into her sole name as outlined in the following Orders.

(9)That within 126 days of these Orders, the Respondent sign all documents and do all things necessary to transfer to the Applicant all his title and interest in the property situated and known as Property W, in consideration of payment to the Respondent of $46,463.14.

(10)That simultaneously with the transfer referred to in Order 9, the Applicant shall do all such acts and things necessary to refinance the mortgage secured over the property known as Property W into her sole name and the Applicant indemnify and keep indemnified the Respondent in relation to all outgoings in respect of the said property.

(11)That failing compliance with Order 8, 9 and 10, that the Applicant take steps to cause the property situate and known as Property W to be sold by private treaty.

(12)That the Applicant be appointed the Trustee of the sale of Property W.

(13)That if after 126 days from the date of these orders, the above mentioned orders have not been complied with, that the parties immediately sign all documents necessary to cause the property situate at and known as Property W to be sold by private treaty at the earliest possible date, at a price agreed upon between the parties and failing such agreement the price to be determined by the President of the Real Estate Institute of New South Wales (or any successor of it) or his/her nominee and to distribute the proceeds of the said sale in the following manner and priority:

(a)Payment of agent’s commission and advertising expenses and legal expenses of the sale.

(b)Payment of costs incurred, if any, in relation to determination of value or selling price by the President of the Real Estate Institute of New South Wales or his/her nominee.

(c)Payment of the mortgage secured against the property.

(d)To the Applicant Wife, the sum of $113,981.52, together with interest calculated under the Family Law Act 1975, calculated from 42 days from the date of these Orders.

(e)Remaining balance to the Husband.

(14)That the Respondent retain all right, title and interest in the business trading as (business omitted) and the Respondent indemnify the Applicant from any liability, however arising, from the business (business omitted).

(15)That the parties do all such acts and things to close any other joint account still standing in the names of the parties and divide the proceeds of that account equally, or share equally in any costs incurred in closing that account.

(16)That the Applicant be entitled to have the sole right title and interest in the following items:

(a)The fridge purchased by her located at Property W

(b)The (omitted) fruit juicer

(c)The Lamp and table held in the lounge room at Property W.

(17)That other than set out in these Orders, each party is entitled to have the sole right title and interest in:

(a)Any chattels, goods, furnishings and other property which are, at the date hereof, in their possession respectively;

(b)Any moneys, shares, debentures, and superannuation entitlements which stand in their sole name respectively at the date hereof;

(c)Any and all amounts outstanding or accruing under any debts which stand in their sole name respectively at the date hereof.

(18)That as between the Applicant and Respondent, and subject to the above Orders, the Applicant and Respondent shall each respectively remain solely liable for any liabilities standing in their sole name, however arising, and each party shall indemnify and keep indemnified the other party in respect to such liabilities.

(19)Both the Applicant and Respondent hereby release the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter of thing.

(20)That the parties shall do all acts and things necessary to give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed.

(21)That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

Notation

(22)That pursuant to section 81 of the Family Law Act, these Orders will finally determine the financial relationship between the parties and avoid further proceedings between them.

IT IS NOTED that publication of this judgment under the pseudonym Wilkinson & Wilkinson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 1166 of 2012

MS WILKINSON

Applicant

And

MR WILKINSON

Respondent

REASONS FOR JUDGMENT

Introduction and background

1.These reasons for judgment explain the orders that I have made in this matter. It is an application under s.79 of the Family Law Act 1975 for an order altering the property interests of the parties.  The Applicant is the Wife, she is 57 years old, lives in (omitted), and describes herself as a (occupation omitted).  The Respondent is the Husband.  He is 60 years old, lives in Property W, and described himself as a part-time (occupation omitted).  The parties commenced a relationship in 1986, started living together in that year, and married in 1991.  They have one child of the marriage, X, who is 16 years old, and who lives with her mother.

2.The parties separated in 2004, resumed cohabitation later that year, and separated on a final basis in April 2011, when the Wife moved out of the then family home.  The Husband continues to live in the family home. 

3.Apart from matters relating to whether or not the Court has jurisdiction to deal with this case, an issue that will be discussed below, the issues raised are not complex.  The contribution that each party made during the marriage, and in the post-separation period, will need to be assessed.  If there are any future needs arising under s.75(2) of the Act, those needs will also need to be assessed.  A just and equitable order will need to be made.

4.By way of overview, both the Wife and the Husband worked during their relationship, either part-time or full-time, and the Wife appears to have been engaged in homemaking and parenting duties.  The Husband was involved in various business ventures.  After marriage, they lived in (omitted), and then returned to Sydney, living in (omitted) in 1999.  In 2001, they purchased the former matrimonial home at Property W for $197,000.  The evidence indicates that that property is valued at $340,000 today.  It represents the largest asset available to the parties, for distribution purposes.

5.After separation, there were a number of financial transactions the implications of which need to be considered.  The Wife removed $80,000 from the parties’ offset account attached to their mortgage.  The Husband also withdrew $10,000 from the offset account.  The Husband then, somehow, withdrew $60,000 of the funds that the Wife had withdrawn, deposited it back into the mortgage account, and then again withdrew some funds for his own purposes.  In addition, in July 2012, the wife received by way of inheritance $82,377.

6.The matter ultimately proceeded on an undefended basis as the Respondent Husband indicated to the Court that he would not accept the Court’s jurisdiction, and left the courtroom.

The Applicable Law

7.The Husband in this case indicated to the Court that he did not accept the Court’s jurisdiction.  Whilst it was difficult at times to understand what he was concerned about it seems that he felt that the Court had no jurisdiction over him, his marriage, or his property.  For his benefit, therefore, the basis of the Court’s jurisdiction will be explained.

8.Section 51 of the Constitution of Australia sets out the powers of the Parliament to make laws with respect to certain matters.  Specifically ss.51(xxi) and (xxii) states:

Part V - Powers of the Parliament

51.The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: -

(xxi.) Marriage:

(xxii.) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants:

9.Pursuant to those powers, and indeed pursuant to other powers referred by the States to the Commonwealth (which are not relevant here), the Parliament passed and subsequently amended the Family Law Act 1975 (Cth). Section 39(1A) of the Family Law Act confers jurisdiction on the Federal Circuit Court of Australia in these terms:

Jurisdiction in matrimonial causes

(1A) Subject to this Part, a matrimonial cause (other than proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b) of the definition of matrimonial cause in subsection 4(1)) may be instituted under this Act in the Federal Circuit Court of Australia.

10.The present application is a ‘matrimonial cause’ for the purposes of s.39(1A) because that phrase is defined in s.4(1) of the Act in the following terms:

"matrimonial cause" means:

(ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:

(i) arising out of the marital relationship;

(ii) in relation to concurrent, pending or completed divorce or validity of marriage proceedings between those parties; or

(iii) in relation to the divorce of the parties to that marriage, the annulment of that marriage or the legal separation of the parties to that marriage, being a divorce, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that divorce, annulment or legal separation is recognised as valid in Australia under section 104

…

11.The creation of the Federal Circuit Court of Australia was likewise an exercise of the Parliament’s powers conferred by the Constitution of Australia.  The jurisdiction of the said Court is exercised by one of its Judges.

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

Alteration of property interests

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

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

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

including:

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

(d)  an order requiring:

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

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

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

(2)    The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

(4)    In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:

(a)  the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

(b)  the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

(c)  the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

(d)  the effect of any proposed order upon the earning capacity of either party to the marriage; and

(e)  the matters referred to in subsection 75(2) so far as they are relevant; and

(f)  any other order made under this Act affecting a party to the marriage or a child of the marriage; and

(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

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

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

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

(b)  the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

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

(d)  commitments of each of the parties that are necessary to enable the party to support:

(i)  himself or herself; and

(ii)  a child or another person that the party has a duty to maintain; and

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

(f)  subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

(i)  any law of the Commonwealth, of a State or Territory or of another country; or

(ii)  any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

and the rate of any such pension, allowance or benefit being paid to either party; and

(g)  where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

(h)  the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and

(ha)  the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and

(j)  the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

(k)  the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

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

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

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

(i)  the property of the parties; or

(ii)  vested bankruptcy property in relation to a bankrupt party; and

(naa)  the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

(i)  a party to the marriage; or

(ii)  a person who is a party to a de facto relationship with a party to the marriage; or

(iii)  the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

(iv)  vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

(o)  any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

(p)   the terms of any financial agreement that is binding on the parties to the marriage; and

(q)  the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

14.In Bevan & Bevan [2013] FamCAFC 116 the Full Court of the Family Court of Australia considered the High Court’s decision in Stanford & Stanford [2012] HCA 52, which provided guidance on how s.79 was to be interpreted and implemented. Bevan endorsed the continuing application of the four-step approach articulated by the Full Court in Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA395, but on the basis that it is a shorthand distillation of the words of s.79, as opposed to being a statutory edict. The four steps articulated in Hickey at paragraph 39 are:

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

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

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

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

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

16.Both decisions also emphasise the importance of identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.  This is not inconsistent with step one in Hickey.  A problem that commonly arises, and indeed does arise in this case, relates to property that once existed but no longer does.  It is no longer appropriate to notionally “add-back” this property.  This disposed of property may still be significant, however, and needs to be considered as part of the history of the marriage, as well as a s.75(2)(o) consideration.  As the Full Court said in Bevan, such disposals must be dealt with carefully.  In practical terms this means carefully assessing the evidence about the disposal, attempting to quantify it if this is at all possible, and then assessing its weight whilst neither placing too much, or too little, weight on it.  Maintaining jurisprudential rigour, transparency and accountability may well be challenging in the era post the demise of the traditional add-back.

The Evidence

17.The Wife relied on her Affidavit sworn 10 June 2014 and Financial Statement also sworn on the same date.  The Wife gave brief evidence-in-chief but was not cross-examined, as the Husband had left, having expressed his view to the Court that the Court had no jurisdiction over him.

18.Also relied on in the Applicant Wife’s case is the Affidavit of Mr S, sworn 11 June 2014, annexing his property valuation report for the former matrimonial home at Property W, which establishes its current market value of $340,000.

19.The Court has regard to the evidence that was filed on behalf of the Husband, namely his Financial Statement sworn 3 December 2013, and his Affidavits sworn 3 December 2013 and 22 January 2014.

20.A number of documents were tendered in evidence, and where relevant will be referred to in these reasons.

Orders Sought

21.The orders sought by the Applicant Wife became Exhibit A1 and is reproduced in the first schedule to these reasons.  The Wife’s Counsel, Ms Humphreys, also made an oral application for an Order under s.114(1)(b) of the Act restraining the husband from re-entering the property, should the Court make the Orders the Wife sought in relation to exclusive occupation.

22.The Outline of Case document filed 13 June 2014 on behalf of the Wife explained the basis of her claim. The Wife seeks a 10 per cent adjustment in her favour under s.79(4), primarily attributable to the inheritance she received after the date of separation, which is included in the balance sheet. She otherwise contended that, but for the inheritance, contribution would have been assessed as being equal. The wife also sought a further adjustment in her favour of 5 per cent under s.75(2), for reasons that will be discussed below.

23.The Respondent Husband’s proposal is contained in his Response of 5 December 2013.  He seeks an order that the Wife transfer to him her interest in the home at Property W, that he assume responsibility for the existing mortgage of the property, but that otherwise each party keep what they have.

24.In simple terms, whereas the Wife proposed that she pay to the Husband $145,000 in return for his interest in the property, the Husband proposed paying nothing to the Wife for her interest in the property.

25.In circumstances where the Respondent Husband chose not to participate in the hearing of this matter and, indeed, had clearly signalled to the Court that he did not accept its jurisdiction, the Court believes that it was entitled to proceed in his absence.  In the circumstances, where the evidence of the Husband and the Wife differs, the Wife’s evidence is preferred.

The Balance Sheet

26.Exhibit A2 became the initial balance sheet for the purposes of establishing what assets were available to the parties, for distribution purposes.  It is reproduced below.  

Balance Sheet Note: This document can be sent by electronic means between the parties prior to it being filed at court.	Article I.	Name
	File No	WOC1166/2012
	Date	6 DEC 2013	Time  9.30am
	Before

ASSETS
Ownership		Description				Wife/de facto partner's value	Husband/de facto partner's value
1	J	Property W (from (omitted) Report dated 29 January 2014)				340,000	340,000
2	W	(omitted) Bank Account (from internet banking statement dated 03/06/2014 – current balance $476)				148.82	148.82
3	W	(omitted) Bank Account ending in (omitted) (from internet banking statement dated 03/06/2014 – current balance $600)				716.12	716.12
4	W	(omitted) Bank Account (from internet banking statement dated 03/06/2014)				62,000	62,000
5	W	(omitted) Saver account				E 3,000	E $3,000
6	H	(omitted) Bank Account				16,446	14,000
6.5	J	Joint Account				124.20	124.20
7	W	Toyota Corolla (Redbook valuation of wife)				5,900	5,900
8	H	Toyota				2000	2,000
9	H	Further Motor Vehicles owned by Husband/ business				29,700	6,800
10	W	Furniture and Personal Effects				5,000	5,000
11	H	Furniture and Personal Effects				10,000	6,000
12	J	Business trading as (omitted)				Not known	Not Known
Total		$          475,035	$         444,700

ADDBACKS
Ownership		Description				Wife/de facto partner's value	Husband/de facto partner's value
13	H	Monies removed by husband				55,000	55, 000
14
Total		$            55,000	$           55,000

LIABILITIES
Ownership		Description				Wife/de facto partner's value	Husband/de facto partner's value
15	J	Mortgage to (omitted) (see (omitted) statement dated 30 April 2014)				175,000	175,000
16	W	(omitted) Bank Credit Card (from internet banking statement dated 03/06/2014)				3500	3,500
17	H	(omitted) Bank Card				850	850
18
Total		$          179,350	$         179,350

SUPERANNUATION
Member		Name of Fund			Type of Interest		Wife/de facto partner's value	Husband/de facto partner's value
19	W	(omitted) Super  (see (omitted) statements dated 20 and 21 May 2014)			Accumulation		65,700	65,700
20	W	(omitted) Super			17,367	17,367
21	H	Combined Super			12,500	12,500
Total		$            95,567	$           95,567

FINANCIAL RESOURCES
Ownership		Description				Wife/de facto partner's value	Husband/de facto partner's value
22
23
24
25
Total		$                  0	$                 0

NETT TOTAL ASSETS (including Superannuation) $          438,885 $408,550         

27.In relation to the balance sheet, item 1, the jointly owned family home at Property W is valued at $340,000 in accordance with the valuation evidence before the Court.  

28.The evidence as to the Wife's (omitted) Bank Account accounts at items 2-4 of the balance sheet was updated.  In this regard, Exhibit A3 establishes that item 2 should be $148.82, item 3 should be $716.12, and item 4 should be $62,076.43.

29.The Court will accept the Wife’s value of item 5, in the absence of other evidence.

30.The value of item 6, the Husband’s (omitted) bank account is consistent with matters deposed to by the Husband in his Affidavit of 22 January 2014.

31.The Wife proposed a new item 6.5, being the (omitted) Bank joint account which has a balance of $124.20.  This seems appropriate as it is the only evidence about this matter.

32.Item 7 is the vehicle driven by the Wife.  She asserts it has a value of $5,900.  In the circumstances, this is the only evidence before the Court, and will be accepted.

33.Item 8 is the Husband’s motor vehicle, which he himself asserts has a value of $2,000, so that will be accepted for present purposes.

34.The value at item 9 is in dispute. It represents vehicles in the Husband’s possession or control. The Husband contends that the figure should be $6,800, the wife $29,700.  In this regard, the Wife relied on a document which became Exhibit A5, which is reproduced in the second schedule to these reasons.  This document represents a summary of records produced by (omitted).  The documents in question satisfy me that, in the circumstances of this case, it represents the best indication of the value of the motor vehicles in question, which should therefore be as asserted by the Wife, that is, $29,700 (noting that the total value in the summary documents is higher than the figure asserted on the Balance Sheet by the Wife, nevertheless, the Court accepts the figure proposed by the Wife, that is, $29,700).

35.The values of items 10 and 11 are consistent with the Financial Statements filed by each party.  Accordingly, the Wife’s furniture and personal affects would be $5,000, and the Husband’s $6,000.

36.The Wife conceded that item 12, the value of the Husband’s business, was not known.

37.In relation to item 13, the Wife contends that these funds should, in effect, be added back or taken into account as part of the history of the marriage.  The evidence seems to suggest that the Wife made a pre-emptive strike on the offset account, but, somehow, the Husband managed to negative this with his own retaliatory strike, the net effect of which is, the Court is satisfied, that he retained $70,000.  The Husband, in effect, concedes in his Affidavit of 21 January 2014 that he still has $15,000.  His Affidavit of that date, purportedly in response to a request to answer specific questions, fails to satisfactorily explain to the Court how the balance of the funds were utilised and, to the extent that some explanation was attempted, it seems to indicate that he applied these funds for his own use.  Indeed, he asserts in the said Affidavit that

I have misplaced these two amounts of money (referring to cash of $23,000) their whereabouts, where they have been put or inadvertently shifted to.  They are my responsibility.  It is embarrassing for me to admit I’m not in a position at this date to be able to say where they have been applied…

In all the circumstances, particularly having regard to what is at least a partial admission by the Husband in relation to the balance of the $70,000 he obtained back from the Wife, the Court accepts that it is appropriate to add this money back, and even if it were not appropriate to add the money back, it would still need to be taken into account in a meaningful way.  The Court recognises the possibility that some part of this money is represented in the Husband’s business account at item 6.  No evidence was adduced by the Husband in this regard.

38.Item 15 represents the (omitted) mortgage, and Exhibit A7 establishes that the balance on 31 May 2014 was $175,151.

39.The value of the Wife's (omitted) Bank Account credit card debt is established by Exhibit A3.  The value of item 17 is established from the Husband’s own Financial Statement.

40.The value of item 19, the Wife’s superannuation, is $65,700 and item 20, $17,367.09, are consistent with evidence of an update that the Wife obtained from the Trustee on the day of the hearing.  Item 21, the Husband’s superannuation, is consistent with his own Financial Statement.

41.Having regard to the matters referred to above, the final balance sheet for present purposes will be as follows:

ASSETS
Ownership		Description				Value
1	J	Property W (from (omitted) Report dated 29 January 2014)				340,000.00
2	W	(omitted) Bank Account (omitted) (from internet banking statement dated 03/06/2014)				148.82
3	W	(omitted) Bank Account ending in (omitted) (from internet banking statement dated 03/06/2014)				716.12
4	W	(omitted) Bank Account (omitted) (from internet banking statement dated 03/06/2014)				62,076.43
5	W	(omitted) Saver account				3,000.00
6	H	(omitted) Bank Account (omitted)				14,000.00
6.5	J	Joint Account				124.20
7	W	Toyota Corolla				5,900.00
8	H	Toyota				2,000.00
9	H	Further Motor Vehicles owned by Husband/ business				29,700.00
10	W	Furniture and Personal Effects				5,000.00
11	H	Furniture and Personal Effects				6,000.00
12	J	Business trading as (business omitted)				Not known
Total		$       468,655.57

ADDBACKS
Ownership			Description				Value
13		H	Monies removed by husband				55,000.00
Total			$        55,000.00

LIABILITIES
Ownership		Description				Value
15	J	Mortgage to (omitted)				175,151.00
16	W	(omitted) Bank Credit Card (from internet banking statement dated 03/06/2014)				3,554.34
17	H	(omitted) Bank Card				850.00
Total		$       179,555.34

SUPERANNUATION
Member		Name of Fund			Type of Interest		Wife/de facto partner's value
19	W	(omitted) Super  (see (omitted) statements dated 20 and 21 May 2014)			Accumulation		65,700.00
20	W	(omitted) Super			17,367.09
21	H	Combined Super			12,500.00
Total		$        95,567.09

NET TOTAL ASSETS (including Superannuation) $       439,667.32

Assessment of Contribution

42.The Applicant Wife’s claim of a 10 per cent adjustment in her favour under s.79(4) of the Act is intended to reflect the inheritance that she received of $82,000 shortly after separation. At paragraphs 95-99 of her Affidavit of 10 June 2014 she explained how the money was used. Most of it is, indeed, still represented on the balance sheet, in the form of her Toyota Corolla motor vehicle, and the largest of her (omitted) Bank accounts. There is no evidence, from either the Husband or the Wife, about how the Husband might have contributed to this inheritance. In the circumstances, all the Court can assess is that he made no contribution to it and that in circumstances where most of the inheritance is reflected in the current balance sheet, it would not be just and equitable to her if this contribution on her part were not recognised. An adjustment of 10 per cent is appropriate, in the court’s estimation.

43.The Court does record that it has had regard to the Husband’s assertions contained in his Affidavit filed 5 December 2013, in order to try to understand whether there is any matter that he refers to which, having regard to the provisions of the Family Law Act, might suggest that the assessment of contribution should not be that which the Wife asserted.  There are no such relevant matters.  There is nothing that the Husband asserts which, relevantly, for the purposes of the Family Law Act, suggests that the assessment of contribution, submitted on behalf of the Wife, is anything but just and equitable in the circumstances. This was a not atypical marriage.  The parties started out with no significant assets.  They worked hard in different capacities. Even though their contribution was diverse, in qualitative terms, after a long marriage, the Court assesses their contribution to otherwise be equal.

Assessment of Section 75(2) Considerations

44.On behalf of the Wife it was submitted that there should be a five per cent adjustment in her favour, pursuant to s.75(2) of the Act.  Ms Humphreys’ case outline contains detailed submissions in this regard.  The Court accepts these submissions except as to quantum.  The Wife asserts she suffers from a number of health issues, and the Husband makes the same assertion in his Affidavit.  The Wife asserts that her employment suffers from some vulnerability.  She has also had to reaccommodate herself, whilst the Husband remains in the home.  According to the Husband, he continues to receive regular income from his business, (business omitted), as well as continuing to live in the former matrimonial home, whilst paying the mortgage.  Each of the parties enjoys shared care of their daughter.  During school holidays, as a result of the nature of the Wife’s employment as a casual (omitted), she becomes dependent on Centrelink benefits.  The Husband does not appear to suffer from this difficulty in terms of earning his income.

45.Overall, the Court does accept that the Wife’s circumstances are more parlous than that of the Husband.  An adjustment of 2.5 per cent in her favour is appropriate in all the circumstances.

Conclusion

46.For the reasons stated above the Wife would be entitled to an order that reflects her receiving 62.5 per cent of the net matrimonial property.  This amounts to $274,792.08 with the husband receiving $164,875.24.  It is, in the circumstances, and having regard to all of the evidence, as just and equitable as the Court is able to assess, particularly in the context of an undefended hearing.  The Wife, in the Orders that she seeks, seems quite content with the Husband retaining the home, provided that she is paid out her entitlement.  In the circumstances, in order to effect this outcome, as the Husband’s total assets including the home amount to $278,856.76, then having regard to his entitlement under these orders, he would need to pay her $113,981.52, thus taking into account what she already has, as well as what he already has.  The following table demonstrates this:

Total net assets: $439,667.32

a)Wife’s entitlement (62.5%): $274,792.08

b)Husband’s entitlement (37.5%): $164,875.24

Husband’s share of the pool of assets:

ASSETS
Ownership		Description				Value
1	H	Property W (from (omitted) Report dated 29 January 2014)				340,000.00
6	H	(omitted) Bank Account (omitted)				14,000.00
6.5	H	Joint Account				62.10
8	H	Toyota				2,000.00
9	H	Further Motor Vehicles owned by Husband/ business				29,700.00
11	H	Furniture and Personal Effects				6,000.00
Total		$       391,762.10

ADDBACKS
Ownership			Description				Value
13		H	Monies removed by husband				55,000.00
Total			$        55,000.00

LIABILITIES
Ownership		Description				Value
15	H	Mortgage to (omitted)				179,555.34
17	H	(omitted) Bank Card				850.00
Total		$       180,405.34

SUPERANNUATION
Member		Name of Fund			Type of Interest		Value
21	H	Combined Super			12,500.00
Total		$        12,500.00

HUSBAND’S NET TOTAL ASSETS (including Superannuation) $       278,856.76

47.According to the above calculations, the Husband is to pay to the Wife the amount of $113,981.52.

48.Some complexity is potentially caused as a result of the Husband not recognising the jurisdiction of this Court, and the authority of its orders.  In the circumstances, the Order proposed by the Wife wisely envisages the possibility that the Husband will not pay her out, in which case the property will need to be sold.  The Court is satisfied that this (that is, the sale) could not be reasonably achieved in the circumstances where the Husband is in occupation and purports not to accept the Court’s jurisdiction.  It is clear from his own evidence, that he has excluded her from the property.  He also deposes to the fact that the “property is secured prohibiting entry.” 

49.At paragraph 24 of his Affidavit he explains that he does not receive mail there, unless it is registered mail, and that “junk mail is dropped on the ground outside the boundary fence”.  These facts, together with the Husband’s refusal to accept the Court’s jurisdiction are indicators that he may not cooperate, whether passively or actively, in Orders that the court makes.  This means, regrettably, that an Order for exclusive occupation is necessary, should he fail to comply with the Orders that give him the opportunity to pay her out.  It also justifies the making of an Order injuncting him from returning to the property.  When the Wife takes occupation she would then be entitled to pay him out, and it would be her responsibility to refinance the mortgage, but Order 9 needs to reflect the payment to the Husband in this regard.  This is calculated as follows: 

Husband’s share of the pool of assets if he does not retain the home, and the Wife purchases from him

ASSETS
Ownership		Description				Value
6	H	(omitted) Bank Account (omitted)				14,000.00
6.5	H	Joint Account				62.10
8	H	Toyota				2,000.00
9	H	Further Motor Vehicles owned by Husband/ business				29,700.00
11	H	Furniture and Personal Effects				6,000.00
Total		$        51,762.10

ADDBACKS
Ownership			Description				Value
13		H	Monies removed by husband				55,000.00
Total			$        55,000.00

LIABILITIES
Ownership		Description				Value
17	H	(omitted) Bank Card				850.00
Total		$       850.00

SUPERANNUATION
Member		Name of Fund			Type of Interest		Value
21	H	Combined Super			12,500.00
Total		$        12,500.00

HUSBAND’S NET TOTAL ASSETS (including Superannuation) $       118,412.10

50.According to the above calculations, if the Husband’s entitlement is $164,875.24, the Wife would need to pay to the Husband the amount of $46,463.14.

51.The Wife also contemplates, in her Orders, the need to sell the property and, again in the circumstances, it is appropriate that she have the rights and powers consequent on being appointed trustee for sale.

52.The Court, therefore, considers that it is just and equitable to make Orders in terms of that sought by the Applicant Wife, modified having regard to the matters set out above, together with a further Order under s.114(1)(b) which injuncts the Husband from returning to the property, once he has been excluded from the same.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:              12 September 2014

Schedule 1

Minute of Orders
FAMILY LAW ACT 1975

IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA

AT WOLLONGONG  File No.  WOC1166/2012

BETWEEN  MS WILKINSON

(Applicant)

AND  MR WILKINSON

(Respondent)

BEFORE:

DATE:_____ / _____ / 2014

UPON APPLICATION MADE TO THE COURT the legal representative appearing for the applicant and the legal representative appearing for the respondent.

THE COURT ORDERS THAT:

1.That within 42 days of these Orders the Applicant sign all documents and do all things necessary to transfer to the Respondent all her title and interest in the property situated and known as Property W.

2.That upon completion of the transfer pursuant to order 1, the Respondent pay to the Applicant, by way of alteration of property interest, the sum of $145,000.00.

3.That simultaneously with the transfer referred to in order 1 the Respondent shall do all such acts and things necessary to refinance the mortgage secured over the property known as Property W into his sole name and the Respondent forgo his right to seek the Transfer of the property at Property W into his sole name and the Respondent shall indemnify and keep indemnified the Applicant in relation to all outgoings in respect of the said property.

4.That if the Respondent fails to do any such act or thing to complete transfer pursuant to Orders 1, 2, 3 within the strict time frame set by these Orders, that the Respondent forgo his right to seek the Transfer of the property at Property W into his sole name.

5.That failing compliance with Order 1, 2 and 3 that the Applicant be granted exclusive occupation of the property at Property W, and the Respondent vacate the property, leaving it in a fit and proper state.

6.That the Respondent continue to pay all mortgage payments, rates payments and any other outgoings in connection with the property until the date of vacating the property, and indemnify the Applicant regarding such payments.

7.That both parties be restrained from further encumbering the property at Property W or otherwise making any further withdrawals against  the mortgage of that property.

8.That failing compliance with Order 1, 2 and 3 that the Applicant be provided an opportunity to transfer property at Property W into her sole name as outlined in the following orders.

9.That within 126 days of these Orders the Respondent sign all documents and do all things necessary to transfer to the Respondent all his title and interest in the property situated and known as Property W.

10.That simultaneously with the transfer referred to in order 1 the Applicant shall do all such acts and things necessary to refinance the mortgage secured over the property known as Property W into her sole name and the Applicant indemnify and keep indemnified the Respondent in relation to all outgoings in respect of the said property.

11.That failing compliance with Order 8,9 and 10, that the Applicant take steps to cause the property situate and known as Property W to be sold by private treaty.

12.That the Applicant be appointed the Trustee of the sale of Property W.

13.That if after 126 days from the date of these orders, the above mentioned orders have not been complied with, that the parties immediately sign all documents necessary to cause the property situate at and known as Property W to be sold by private treaty at the earliest possible date, at a price agreed upon between the parties and failing such agreement the price to be determined by the President of the Real Estate Institute of New South Wales (or any successor of it) or his/her nominee and to distribute the proceeds of the said sale in the following manner and priority:

a.    Payment of agent’s commission and advertising expenses and legal expenses of the sale.

b.    Payment of costs incurred, if any, in relation to determination of value or selling price by the President of the Real Estate Institute of New South Wales or his/her nominee.

c.    Payment of the mortgage secured against the property.

d.    Balance of the remaining proceeds to the Applicant wife.

14.That the Respondent retain all right, title and interest in the business trading as (business omitted) and the Respondent indemnify the Applicant from any liability, however arising, from the business (business omitted).

15.That the parties do all such acts and things to close any other joint account still standing in the names of the parties and divide the proceeds of that account equally, or share equally in any costs incurred in closing that account.

16.That the Applicant be entitled to have the sole right title and interest in the following items:

(a)The fridge purchased by her located at Property W

(b)The (omitted) fruit juicer

(c)The Lamp and table held in the lounge room at Property W.

17.That other than set out in these Orders, each party is entitled to have the sole right title and interest in:

(a)Any chattels, goods, furnishings and other property which are, at the date hereof, in their possession respectively;

(b)Any moneys, shares, debentures, and superannuation entitlements which stand in their sole name respectively at the date hereof;

(c)Any and all amounts outstanding or accruing under any debts which stand in their sole name respectively at the date hereof

18.That as between the Applicant and Respondent, and subject to the above orders, the Applicant and Respondent shall each respectively remain solely liable for any liabilities standing in their sole name, however arising, and each party shall indemnify and keep indemnified the other party in respect to such liabilities.

19.Both the Applicant and Respondent hereby release the other form all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter of thing.

20.That the parties shall do all acts and things necessary to give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed.

21.That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

22.That the Respondent pay the Applicant’s Cost’s.

Notation

23.That pursuant to section 81 of the Family Law Act, these Orders will finally determine the financial relationship between the parties and avoid further proceedings between them.

Schedule 2

Plate Number	Make	Model	Shape	Colour	Owned from	Buyer declared value	Current Status	Registration period expiry	Note
(omitted)	(omitted)	(omitted)	(omitted)	(omitted)	08/04/1997	$50	Cancelled	07/04/2004	Not separately listed in previous FS. May be taken as part of other personal property under part 43. Note appears again at item 3 below.
(omitted)	FORD	FALCON	SED	(omitted)	04/10/2010	$2800	Cancelled	22/3/2006	Possible item listed at Part O of FS. Valued at $500
(omitted)	(omitted)	(omitted)	(omitted)	(omitted)	27/02/2006	$1250	Active	26/02/2015	Note separately  listed in previous FS. May be taken as part of other personal property under part 43. 07/04/2004
(omitted)	FORD	FALCON	SED	(omitted)	27/05/2007	$7250	Cancelled	31/07/2013	Possibly item listed at Part O of FS. Valued at $800
(omitted)	MERCEDES BENZ	UNKNOWN	SED	(omitted)	19/07/2007	$4500	Cancelled	06/11/2008	Not disclosed
(omitted)	(omitted)	UNKNOWN	(omitted)	(omitted)	18/09/2007	$2700	Cancelled	16/01/2009	Item  listed at Part O  of FS. Valued at $600
(omitted)	MITSUBISHI	(omitted)	SED	(omitted)	19/09/2007	$3500	Cancelled	18/09/2010	Not disclosed
(omitted)	MERCEDES BENZ	(omitted)	SED	(omitted)	11/10/2007	$5500	Cancelled	10/10/2011	Item  listed at Part O  of FS. Valued at $1,200
(omitted)	TOYOTA	(omitted)	(omitted)	(omitted)	14/02/2008	$6800	Cancelled	13/02/2012	Not disclosed
(omitted)	MITSUBISHI	(omitted)	SED	(omitted)	19/04/2011	$2000	Cancelled	18/04/2012	Not disclosed
(omitted)	(omitted)	SED	(omitted)	(omitted)	06/08/2011	$11000	Cancelled	23/01/2014	Not disclosed. See specific question number 7.1. Husband denies ownership and says was purchased for brother. Registration is cancelled 2 days after signing affidavit to Specific Questions.
(omitted)	MERCEDES BENZ	(omitted)	SED	(omitted)	08/02/2012	$2000	Cancelled	07/02/2013	Item  listed at Part O  of FS. Valued at $500
(omitted)	(omitted)	(omitted)	SED	(omitted)	13/08/2012	$5800	Cancelled	22/01/2013	Not disclosed. See specific question number 7.2. Husband denies ownership. Registration is cancelled  1 day after year before  signing affidavit to Specific Questions.
(omitted)	MITSUBISHI	(omitted)	SED	(omitted)	20/10/2012	$1200	Active	19/10/2014	Listed at item 40 of FS.  Valued at $1,200
(omitted)	TOYOTA	(omitted)	(omitted)	(omitted)	18/12/2012	$2000	Active	17/12/2014	Listed at item 40 of FS.  Valued at $2000
(omitted)	FORD	FALCON	SED	(omitted)	23/03/2013	$4000	Active	19/08/2014	Listed at Part O  of FS.  Valued at $2000