Woodstock & Woodstock
[2024] FedCFamC2F 1661
•22 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Woodstock & Woodstock [2024] FedCFamC2F 1661
File number(s): MLC 13285 of 2023 Judgment of: JUDGE GLASS Date of judgment: 22 November 2024 Catchwords: FAMILY LAW – PROPERTY – where the husband is in default of his obligations to file material and make full and frank disclosure – where the husband failed to appear at the final hearing – where final Orders made as sought by the wife Legislation:
Family Law Act 1975 (Cth) ss 75, 79, 90XT, 95, 106A.
Family Law (Superannuation) Regulations 2001 pt 6.
Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) r 10.27.
Cases cited:
Fields & Smith (2015) FLC 93-638
Kingston & Field (No 2) (2020) FLC 93-986
Preston & Preston (2022) FLC 93-108
Stanford v Stanford (2012) 247 CLR 108
Division: Division 2 Family Law Number of paragraphs: 45 Date of hearing: 14 November 2024 Place: Melbourne Counsel for the Applicant: Mr Ambrose Solicitor for the Applicant: Rodda Legal Respondent: No appearance by or on behalf of the Respondent ORDERS
MLC 13285 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WOODSTOCK
Applicant
AND: MR WOODSTOCK
Respondent
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
22 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The Husband shall do all such acts and things and sign all such documents as may be necessary to transfer all his right title and interest in the property situate at and known as B Street, Suburb C and more particularly described in Certificate of Title Volume … Folio … ("Suburb C Property") to the Wife.
2.If the Husband refuses or neglects to do all such acts and things and sign all such documents as may be necessary to transfer all his right title and interest in the Suburb C Property to the Wife in accordance with paragraph 1 herein, pursuant to section 106A of the Family Law Act 1975 (Cth) an officer of the Court shall be appointed to execute all such documents in the name of the Husband and do all acts and things necessary to give effect to paragraph 1 herein.
3.Contemporaneously with the transfer referred to in paragraph 1 herein the Husband shall at his expense:
(a)do all such acts and things necessary to discharge the D Bank loan account numbers … and … and being secured by way of registered mortgage number … over the Suburb C Property; and
(b)do all such acts and things necessary to make payment to Ms E with respect to the personal loan from Mr F which was irrevocably assigned to Ms E.
4.That the Wife retain to the exclusion of the Husband all of her right title and interest in the following non-superannuation assets:
(a)the property situate at and known as G Street, Suburb H in the State of Victoria;
(b)the property situate at and known as J Street, Town K in the State of New South Wales;
(c)the Wife's banking accounts;
(d)chattels and furniture in the Wife's possession;
(e)all of the Wife's future inheritances and gifts;
and that, subject to these Orders, the Wife indemnify the Husband in relation to any liability associated with any of the items to be retained by her to the absolute exclusion of the Husband.
5.That the Husband retain to the exclusion of the Wife all of his right title and interest in the following non-superannuation assets:
(a)the property situate at and known as L Street, Suburb M in the State of Victoria;
(b)the Husband's banking accounts;
(c)chattels and furniture in the Husband's possession;
(d)all of the Husband's future inheritances and gifts;
and that, subject to these Orders, the Husband indemnify the Wife in relation to any liability associated with any of the items to be retained by him to the absolute exclusion of the Wife.
6.Within thirty (30) days of the date of these Orders the Husband shall pay to the Wife's nominated bank account the sum of $70,276 (“the payment”).
7.The following paragraphs, namely paragraphs 8 to 14 of these Orders are binding on Super Fund 1 (“the Trustee”).
8.The base amount allocated to the Applicant, Ms Woodstock, out of the interest of the Respondent, Mr Woodstock, in the Super Fund 1 ("the Fund") is $336,867.50 ("the Base Amount").
9.That pursuant to section 90XT(l)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the interest of Mr Woodstock (member spouse) in the Fund, Ms Woodstock shall be entitled to be paid an amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 (Cth) using the Base Amount (provided that such Base Amount shall not exceed the value of the interest determined under section 90XT(2) and there be a corresponding reduction in the superannuation interest of Mr Woodstock (member spouse) to whom the splittable payment would have been made but for these Orders.
10.That the operative time for the purpose of paragraphs 8 and 9 of these Orders is four (4) business days after service of the final sealed orders on the Trustee of the Fund.
11.Within fourteen (14) days of becoming entitled to receive a superannuation benefit from the Fund, Ms Woodstock will give the Trustee of the Fund:
(a)all such forms as necessary to enable it to determine the nature and quantum of her superannuation entitlements; and
(b)any other related information it may reasonably require.
12.Until such time as the superannuation split to Ms Woodstock pursuant to these Orders can be rolled over into a separate account to the said Applicant:
(a)Mr Woodstock will give to Ms Woodstock written notice not less than twenty-eight (28) days as they may elect notifying of the entitlement to access in whole or in part their entitlement in the Fund;
(b)Mr Woodstock will direct and authorise the Trustee of the Fund to communicate with Ms Woodstock and/or any other person authorised by them in writing;
(c)to answer any reasonable enquiries as may be made by them or on their behalf from time to time regarding their entitlement in the Fund;
(d)to give Ms Woodstock and/or her authorised representative, a copy of any notice of any application or request by Mr Woodstock which seeks release of entitlements in the Fund insofar as that release may affect Ms Woodstock's entitlement in the Fund pursuant to these Orders; and
(e)Mr Woodstock, his servants and/or agents be and are hereby restrained from doing any act or thing which would prevent Ms Woodstock, her heirs, executors, administrators or nominees from receiving the benefits in the Fund to which she is entitled pursuant to these Orders.
13.In the event the superannuation split to Ms Woodstock pursuant to these Orders can be rolled over into a separate fund to Ms Woodstock, each of the parties will do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.
14.There be liberty to each party and the Trustee of the Fund to apply regarding the implementation of these Orders affecting the interests of Mr Woodstock and Ms Woodstock in the Fund.
15.All extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
Ms Woodstock and Mr Woodstock commenced cohabitation in 1995, were married in 2001 and separated in October 2014.
They have two children, Mr N and X, who are now aged 20 and 17 years old respectively.
Arising for determination is Ms Woodstock’s application for orders altering the parties’ interests in property pursuant to Part VIII of the Family Law Act 1975 (Cth).
She proposes that Mr Woodstock pay her the sum of $70,276, transfer his interest in a property in Suburb C to her, discharge the mortgages associated with that property and discharge a personal loan. She also proposes a superannuation split of $336,867.50 in her favour from Mr Woodstock’s superannuation interests.
On 27 November 2023, Mr Woodstock was personally served with Ms Woodstock’s application for property settlement orders. He was also then served with Orders made by the Court on 16 November 2023 requiring him to file responding documents within 28 days of being served with the application. He failed to file any documents as ordered.
Mr Woodstock failed to attend the return date for the application on 2 February 2024. A copy of the Orders made that day was sent to him on 7 February 2024. Mr Woodstock was ordered to file responding documents by 10 May 2024. He failed to comply with that direction.
Mr Woodstock also failed to attend the next return date of the application on 16 May 2024. He was then ordered to file responding documents by 19 July 2024. He failed to do so. A copy of the Orders made on 16 May 2024 was sent to Mr Woodstock on 28 May 2024.
On 16 May 2024, the matter was listed for an undefended hearing on 5 August 2024. At the request of Ms Woodstock, that hearing was adjourned to 14 November 2024.
Mr Woodstock was served with the Further Amended Initiating Application particularising the relief sought by Ms Woodstock by email on 7 November 2024. Mr Woodstock subsequently corresponded with Ms Woodstock from one of the email addresses to which the documents were sent. I am satisfied he is on notice of the relief sought by her.
By email, Ms Woodstock also invited Mr Woodstock to attend Court on the day of the hearing. He failed to do so. The interlocutory Orders that have been served on Mr Woodstock repeatedly included information about those possible consequences. I am satisfied he was on notice of the hearing and the possible consequences of his non-attendance.
Mr Woodstock is in repeated default of his obligations to file responding documents. I accordingly have a discretion to proceed on Ms Woodstock’s evidence.[1] The overarching purpose of the Court’s practice and procedure provisions includes the just resolution of disputes as quickly, inexpensively and efficiently as possible.[2] These proceedings were initiated 12 months ago. Mr Woodstock has taken no step in the proceedings in that time. I determine it appropriate to proceed on Ms Woodstock’s evidence. By his failure to attend the hearing, Mr Woodstock has lost the opportunity to challenge that evidence in cross-examination or make submissions.
[1] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 10.27(1)(g).
[2] Family Law Act 1975 (Cth) s 95.
STATUTORY FRAMEWORK
Pursuant to section 79 of the Act, I have a discretion to make such order altering the parties’ interests in property as I consider appropriate. I am prohibited from making an order unless I am satisfied, in all the circumstances, it is just and equitable to do so.[3] If I am so satisfied, I am required to consider the matters prescribed by subsection 79(4) of the Act and by the device of paragraph 79(4)(e), relevant matters referred to in subsection 75(2) of the Act.
[3] Family Law Act 1975 (Cth) s 79(2).
PROPERTY INTERESTS
It is necessary to begin by identifying, according to common law and equitable principles, the existing legal and equitable interests of the parties in property.[4]
[4] Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) at [37].
Ms Woodstock’s evidence as to the identity and value of that property is unchallenged by Mr Woodstock and I accept it. I accordingly find the parties’ interests in property to comprise the following:
Asset O'ship Value 60% interest in B Street, Suburb C, Victoria Jt $582,000 less D Bank mortgages Jt ($138,000) Loan from Mr F (assigned to Ms E) Jt ($100,000) G Street, Suburb H W $1,000,000 less O Bank mortgage W ($430,000) 50% interest in J Street, Town K, New South Wales W $190,000 less O Bank mortgage W ($130,000) Westpac bank accounts W $19,330 P Bank accounts W $1,369 Motor Vehicle 1 W $82,750 less finance W ($85,000) Motor Vehicle 2 W $2,500 L Street, Suburb M, Victoria H $1,580,000 Westpac bank accounts H $680,000 Q Bank account H $5,476 Q Bank credit card H ($2,362) Total non-superannuation interests $3,258,063 Super Fund 2 W $368,202 Super Fund 1 Accumulation H $423,896 Super Fund 1 Defined Benefit H $618,041 Total superannuation interests $1,410,139 Total property interests $4,668,202 JUSTICE AND EQUITY
Ms Woodstock and Mr Woodstock are the joint proprietors of real property, they are jointly liable for liabilities secured against it and are also jointly liable for a personal loan. That joint proprietary interest and those joint liabilities must be severed, so it is just and equitable to make a property adjustment order.[5]
[5] Preston & Preston (2022) FLC 93-108 at [38].
CONTRIBUTIONS
I am required to take into account the parties’ financial and non-financial, direct and indirect, contributions to the acquisition, conservation or improvement of property.[6] I am also required to take into account the parties’ contributions to the welfare of the family.[7]
[6] Family Law Act 1975 (Cth), s 79(4)(a-b).
[7] Family Law Act 1975 (Cth), s 79(4)(c).
At the commencement of the parties’ relationship, they had no assets of significance.
In 1997, the parties commenced renting the Suburb M property from Mr Woodstock’s mother after she inherited the property from Mr Woodstock’s grandmother.
In 2002, the parties jointly purchased the Suburb C property for $305,000. Ms Woodstock’s parents contributed approximately $49,891.91 to the purchase price and made substantial improvements to the property at a cost of approximately $133,098.53. Those improvements were completed in around 2005. It was agreed that Ms Woodstock’s parents’ contributions would be recognised by them retaining a 40% interest in the property.
During the parties’ relationship, the parties jointly contributed towards the mortgage repayments on the Suburb C property.
In 2004, Mr Woodstock’s parents provided funds for the parties to build a new home on the Suburb M property. While works were undertaken, the parties resided with Ms Woodstock’s parents at the Suburb C property. Thereafter, the parties resumed occupation of the Suburb M property. The parties’ rent to Mr Woodstock’s parents increased from $120 per week to $250 per week. They ceased paying rent on the Suburb M property in approximately 2012.
During the parties’ occupancy of the Suburb M property, they were responsible for the payment of outgoings and repairs, including pest control and water rates. They made various improvements to the property, including installing fittings and outdoor furnishings.
In mid-2012, Ms Woodstock’s then brother-in-law, Mr F, gave the parties $100,000 to pay down the mortgage on the Suburb C property. Ms Woodstock paid interest on the loan from Mr F on a monthly basis. After Mr F separated from Ms Woodstock’s sister, Ms E, the $100,000 debt was assigned to her.
During the parties’ relationship, Ms Woodstock worked on a full-time basis, aside for short periods of maternity leave and a period of 18 months in 2010 when she worked 30 hours per week.
At the time of the parties’ separation in October 2014, the children were 10 and seven years old respectively. Mr N and X have lived with Ms Woodstock since that time. They spent time with Mr Woodstock by agreement, mostly by way of fortnightly weekend visits until approximately April 2020. Since then, their visits with their father have been sporadic. They have rarely stayed overnight with Mr Woodstock over the past two years.
The children have needs which have required additional care. Mr N suffers from a learning disorder. He attended upon psychologists, psychiatrists and other therapists to assist with school difficulties. Since his diagnosis in 2021, he has attended a speech pathologist and weekly tutoring. X has had school and social difficulties. She has received treatment from psychologists and therapists since September this year. Her mental health deteriorated significantly around that time, with her self-harming in late 2024. She was thereafter admitted as an inpatient to hospital for 10 days. Ms Woodstock has been solely responsible for caring for her since her discharge, including taking her to specialist and psychologist appointments.
Mr Woodstock made contributions towards expenses for the children into a joint bank account for approximately 12 months after the parties’ separation. He thereafter made no such contributions until he received a substantial inheritance in late 2020. In total, Mr Woodstock has made contributions of approximately $48,500 into the joint bank account for children’s expenses.
After the parties’ separation, Mr Woodstock has continued to occupy the Suburb M property.
In mid-2015, Ms Woodstock started her own business. The agreement with her principal client ceased in late 2022. In late 2022, Ms Woodstock had an accident causing significant injuries to her legs requiring surgery. She also suffered anxiety following her injuries for which she received mental health support.
In 2020, Mr Woodstock received an inheritance from his mother’s estate, comprising a cash payment of $1,835,340.25 and the Suburb M property. In early 2021, pursuant to agreement between the parties, Mr Woodstock paid Ms Woodstock $716,000 and applied $160,000 towards the Suburb C mortgage. Ms Woodstock applied $616,000 towards the purchase of the Suburb H property and applied the balance of $100,000 to support herself and the children. Mr Woodstock has also sporadically made payments to Ms Woodstock since November 2023 totalling approximately $101,000.
Given Mr Woodstock currently has savings of $685,476, he has accordingly otherwise had the benefit of $172,864 from his mother’s estate which is unaccounted for. Also unaccounted for is the use to which he has more generally put his income, particularly given that he resides in an unencumbered property.
From separation until February 2021, Mr Woodstock serviced the smaller mortgage on the Suburb C property and Ms Woodstock serviced the larger mortgage. Since that time, Mr Woodstock has serviced the larger mortgage and Ms Woodstock has serviced the smaller mortgage.
In early 2022, Ms Woodstock and her partner purchased the Town K property for $340,000. Each contributed $20,000 towards the deposit and the balance was funded by way of loan from the O Bank.
Mr Woodstock has failed to file a Financial Statement or otherwise explain the use of the cash balance from his mother’s estate of approximately $172,864 and his income. Because he has improperly failed to make disclosure of his financial affairs, I am entitled to make more generous provision for Ms Woodstock.[8]
[8] Kingston & Field (No 2) (2020) FLC 93-986 at [106] and the cases there cited.
Making a holistic assessment of the parties’ contributions over the whole period from the commencement of cohabitation to trial,[9] I am satisfied that those contributions to the parties’ non-superannuation assets should be assessed as 65% in favour of Mr Woodstock. So much leaves a differential between the parties’ respective positions with respect to that asset class of $977,419. Although Mr Woodstock has made a very substantial capital contribution in the post-separation period through his mother’s inheritance, Ms Woodstock has overwhelmingly been responsible for the care of the parties’ two children during that period.
[9] Fields & Smith (2015) FLC 93-638 at [168] per Bryant CJ and Ainslie-Wallace J.
I am also satisfied that the parties’ contributions to their superannuation interests ought be assessed equally.
PARAGRAPHS 79(4)(D, E, F AND G) AND SUBSECTION 75(2) FACTORS
Ms Woodstock is now 52 years old. She currently works between 30 and 45 hours per week depending on the children’s schooling and medical appointments. She generates income of approximately $46,000 per annum. She receives rental income of approximately $197 per week.
Although X will turn 18 next year, she remains living with Ms Woodstock. As has been discussed, she presently has a need for significant medical care. Ms Woodstock receives approximately $75 per week by way of child support from Mr Woodstock.
Mr Woodstock is now 55 years old. To the best of Ms Woodstock’s knowledge, he is in good health.
Mr Woodstock is employed by R Company, where he has worked for an extended period of time. He has made no disclosure of his income. Information from his superannuation fund reveals the “salary figure on which any benefit payable would be based if [Mr Woodstock] were eligible to retire at the appropriate date is $127,419.04.”[10] That information suggests that figure represents his current salary.
[10] Affidavit of Ms Woodstock filed 7 November 2024, page 77.
I am satisfied that a 5% adjustment to the assessment of the parties’ contributions to non-superannuation assets in favour of Ms Woodstock is appropriate in the circumstances. So much equates to a differential from that assessment in her favour of $325,806.
I find that no adjustment to the assessment of the parties’ contributions to superannuation interests is appropriate.
CONCLUSIONS
I am satisfied that an overall outcome of Ms Woodstock retaining 40% of the value of the parties’ known non-superannuation interests and 50% of their superannuation interests is just and equitable.
A result whereby Ms Woodstock retains 40% of the value of the parties’ non-superannuation interests requires her to retain assets with a total value of $1,303,225. She currently has assets in her name with a net value of $650,949. She accordingly needs a further $652,276 to make up her entitlement. She proposes that she retain the parties’ interest in the Suburb C property unencumbered, and receive a further payment from Mr Woodstock of $70,276. I am satisfied that the relief sought by her is appropriate.
Mr Woodstock’s defined benefit superannuation interest having been relevantly valued,[11] and procedural fairness having been accorded on the trustee of the fund,[12] I am also satisfied that the superannuation splitting order sought by Ms Woodstock is appropriate.
[11] Family Law Act 1975 s 90XT(2); Affidavit of Ms Woodstock filed 7 November 2024, page 77.
[12] Affidavit of Ms Woodstock filed 7 November 2024, page 81.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 22 November 2024
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