Xu-Mao and Xu-Mao

[2009] FamCA 375

FAMILY COURT OF AUSTRALIA

XU-MAO & XU-MAO [2009] FamCA 375

FAMILY LAW – PROPERTY – Undefended hearing
FAMILY LAW – CHILDREN – Undefended hearing – Presumption of equal parental responsibility rebutted

Family Law Act 1975 (Cth)

Coghlan (2005) FLC 93-220
Hickey v Hickey and Attorney-General (Cth) (2003) FLC 93-143

APPLICANT: Mr Xu-Mao

RESPONDENT: Ms Xu-Mao

FILE NUMBER: MLC 1074 of 2008

DATE DELIVERED: 24 April 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 24 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr C.S. Nehmy

SOLICITOR FOR THE APPLICANT: Schetzer Constantinou

COUNSEL FOR THE RESPONDENT: No appearance

Orders

1. That all outstanding applications be adjourned part-heard to 9.00am on 8 May 2009.

2. That my reasons for judgment this day be transcribed and be made available to the solicitors for the husband.

3. That pending the further and final determination of the matter on 8 May 2009:

   (a)the wife do all acts and things and sign all such documents as may be required to transfer to the husband at the expense of the husband all her interest in the real property situate at and known as G property being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“the real property”) (“the transfer”);

   (b)the husband shall refinance the mortgage registration number … secured over the real property (“the mortgage”) and provide to the wife a discharge of the said mortgages and shall thereafter indemnify the wife in relation to any liability held over the real property and/or rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.

   (c)       The husband retain for his sole use and benefit the following:

   (i)the property known as and situate at S being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“the S property”);

   (ii)the proceeds of any bank account in his name;

   (iii)the 1997 Toyota Camry registered in his name;

   (d)That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:

   (i)each party be solely entitled to the exclusion of the other to all property (including choses in action) in the possession of such party as at this date.  The chattels in the real property are considered to be in the possession of the husband;

   (ii)each party be solely liable for and indemnify the other against any liability encumbering any item or property to which that party is entitled pursuant to these orders.

   (e)In the event that the wife fails or neglects to execute a deed and/or instrument in compliance with the provisions of these orders, and such refusal or neglect continues for a period of 14 days, the Registrar or Deputy Registrar of the Family Court of Australia at Melbourne is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute all deeds and/or instruments in the name of that party and do all acts and necessary things to give validity and operation to the deeds and/or instruments.

4. That the wife pay the husband’s costs fixed in the sum of $5000 such sum be reflected as having been paid by the wife as a result of any splitting order made on 8 May 2009.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1074 of 2008

MR XU-MAO

Applicant

And

MS XU-MAO

Respondent

REASONS FOR JUDGMENT

1. On 15 October 2008 the husband filed an application seeking parenting and property orders.  The parenting orders related to two children.  At that time the wife had been living in China for three years and her whereabouts had been unknown. The proceedings have not progressed with any cooperation with the wife.  The husband now seeks to proceed on an undefended basis.  The wife was served with a divorce application in June 2008 by substituted service.  The recipient of the documents was her sister in Hong Kong.  No response was received and the sessional registrar hearing the divorce dispensed with service.

2. On 9 January 2009, upon an application in the case, a registrar of this court ordered service of the relevant parenting and property application documents on the wife's sister in Hong Kong.  That was done.  On 16 February 2009 I set the matter down for hearing today and made further substituted service orders.  The husband has filed an affidavit of service on 22 April 2009, sworn by the solicitor acting for him in which it is said that the orders I made on 16 February 2009 and the amended application of the husband seeking final orders, which was filed on 20 February 2009, together with some other documents were served on the wife by post to a Hong Kong address and also to an email address. 

3. That information as to those details came from the husband.  The purpose of substituted service is to do the best the parties can do to bring the proceedings to the attention of the other litigant.  Unlike civil proceedings, family law proceedings have a dimension which is unusual because the recipient party knows of the existence of the unresolved problem.

4. Even though they may not wish to proactively participate there can usually be no doubt that they know there are children and financial issues that exist.  In circumstances such as this where there has been a long period since separation and the contact between parent and child has either been non-existent or negligible, one can safely infer that the party does not wish to be involved.  That is particularly so where there are no issues of violence or pressure suggested to have given rise to the breakdown of the relationship and the husband here has knowledge has whereabouts of at least the wife's sister.

5. The absence of response from the sister may mean many things but I would infer here that because the documents have not been returned they have been passed on to the family member involved.  I am satisfied that the wife has had an opportunity to be involved in the proceedings and has been conscious of them for the best part of a year and not made any contact.  I am satisfied therefore that the husband should have the opportunity to proceed on an undefended basis.

6. Having said that it does not mean that the husband can proceed to have the orders that he necessarily seeks on the basis as I have indicated in discussion that it may very well be that a prudent litigant might say that there is no possibility of the orders being made, having regard to the state of the law.  The documents relied upon are the husband's amended application for final orders, filed 20 February 2009; his affidavit filed 19 March 2009; and his financial statement filed 15 October 2008. 

7. As I said, there are no materials filed by the wife before the court.  As to the orders that the husband seeks, he, in relation to children's issues, asks for orders that the children V and K live with him; that he have sole parental responsibility; and that the children spend time with and communicate with their mother by agreement between the parties.  I have some reservation about the third of those orders on the basis that it is always open to parties to communicate with one another and reach agreement about their children but in this case I do not see any problem making the order.

8. In relation to property matters he seeks orders that:

   a)the wife transfer to him her interest in the property at G

   b)that he refinance the mortgage over the former matrimonial home and indemnify the wife in relation to any liability; tax or outgoings.

   c)that pending the transfers he have the sole right to occupy that home and pay all expenses associated with it

   d)that he retain the property at S; any proceeds of any bank account held in his name; a 1997 Toyota Camry; and the furniture and possessions in the house, as well as his superannuation.  It is to be noted that he seeks all of his superannuation, and

   e)that the wife retain any proceeds of any bank account in her name; any motor vehicle registered in her name; furniture and chattels in her possession at the date of these orders; and also her superannuation.

9. The husband also seeks orders that the registrar sign any documents in the name of the wife pursuant to s 106A of the Family Law Act 1975 (Cth) (“the Act”) and there is also a pending application by the husband that the wife pay costs.

10. What I now set out as statements of fact are indeed findings by me as to fact.  By way of background, the applicant husband was born in December 1963 in China.  He is 45 years old.  He is a teacher in Melbourne.  The respondent wife was born in February 1961 in Hong Kong and is 48 years old.  She is a qualified teacher.

11. The parties married in England in March 1990 and moved to Australia in 1991.  The husband was granted Australian Citizenship in 1994.  The three children of the marriage are; S, who is 18 years old and in her first year of university.  I shall return to her in a moment.  The second is V who was born in September 1994; and K who was born in May 2000.  V is 14 years of age and is in year 9 at a Melbourne secondary college and K is eight years old and in the third grade at a local primary school.

12. The parties separated on 12 October 2005 when the wife returned to Hong Kong, or shortly thereafter.  At that stage she went with K.  K returned to Australia in November 2005 and has not seen the wife since that date.  V has not seen his mother since October 2005 when she left to go to Hong Kong.  The children have been entirely supported by and cared for by, the husband.  That, in my view, is a significant contribution by him.

13. Dealing firstly with the children's matters. The basis upon which a court makes a parenting order is governed by Part VII of the Act. Section 60B sets out the objects and principles under which this court is to operate. Fundamentally, the court is to ensure the best interests of children are met by ensuring that they have the benefit of having both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests.

14. The legislation goes on to say that it is in the best interests of children that they are protected from physical and psychological harm from being subjected to or exposed to abuse, neglect or family violence and to ensure that children receive adequate and proper parenting to help them achieve their full potential.  The objects then turn to the parents saying that, it is in the best interests of children that parents fulfil their duties and to meet their responsibilities concerning the care, welfare and development of their children.

15. Section 60CA says that, in deciding whether to make a particular parenting order in relation to a child the court must regard the best interests of the child as the paramount consideration.  Section 60CC(1) says that, subject to subs (5), in determining what is in the best interests of a child the court must consider the matters that are set out in subss (2) and (3).  Subss (2) and (3) of s 60CC set out primary considerations and additional considerations.

16. In respect to the primary considerations the Act says the court is to consider the benefit to the child in having a meaningful relationship with both parents and the need to protect the children from physical and psychological harm, as I have earlier described. The additional considerations are a checklist that must be considered in relation to the children and I shall turn to those that are relevant in a moment.

17. The reality of this matter is that the two youngest children have not seen the wife since late 2005.  The children have lived with and been cared for by the husband for the past three and a half years.  The husband's affidavit material makes it clear that the wife telephones the children on occasion and she has only attempted to spend time on one occasion since separation.

18. The wife contacted the husband to arrange for the children to spend time with her during Christmas 2007 but the parties could not agree upon travel arrangements and the children therefore remained in Australia.  As the wife has not participated in these proceedings it is difficult to arrange for them to have a meaningful relationship with their mother.  The onus of making the parenting relationship work falls upon the parent not the child.

19. One can only conclude that the wife is not prepared to fulfil her parental responsibilities to create that meaningful relationship.  There is no evidence before me that the children are at risk of physical or psychological harm.  The husband says the wife has been diagnosed with bipolar disorder and has spent time in psychiatric units for this in the past and whilst that may explain the dilemma it does not assist me here.  I am very conscious in this case that the wife does has post-graduate tertiary qualifications. 

20. In respect of the s 60CC additional considerations there is no evidence before the court of the views of expressed by the children.  It seems to matter little here, however, because the mother has had little, if anything, to do with them since separation.  The children have been solely cared for by the husband since separation and any contact has been limited to the occasional phone call.

21. S, who is 18 years of age, visited the wife in Hong Kong earlier this year but there is no evidence of the impact of the absence of the mother upon the other children.  The husband has had a very limited ability to facilitate and encourage a close and continuing relationship between the children and the wife, as he does not know where the wife is currently living in any precise detail, nor does he have any significant contact details for her other than through the family.  The family seems remarkably shy as well. 

22. The orders sought by the husband will not change the circumstances of the children that have existed for some years now.  The practical difficulties in making orders are also obvious.  The wife sought some time in China in 2007 and the parties could not reach agreement.  In those circumstances one would have expected an application to be made to the court but that did not occur and another Christmas has passed by since then.  There is no suggestion that the wife is intending to return and there is a paucity of evidence of the circumstances under which she is currently living or, for that mater, could care for the children if she had them.

23. The evidence before the court is that the husband has the capacity to provide for the needs of the children and has done a wonderful job in the past three and-a-half years. He has demonstrated that he undertakes the responsibility of parenthood seriously.  Unfortunately I cannot say the same for the wife.

24. Section 60CC(4) requires me to consider how each party has fulfilled or failed to fulfil their responsibilities in relation to not only spending the time with children but also facilitating the time of the other parent.  In this case the wife has failed to fulfil her parental responsibilities to the children for the past three‑and-a-half years.  I am satisfied however that the husband has fulfilled his and that there is no criticism I could make within the meaning of s 60CC(4) or (4)(a).

25. In those circumstances I am satisfied that it is appropriate to make a finding that the orders sought by the husband in respect of the children are in their best interests. 

26. I then turn to s 61DA.  Section 61DA(2) says that in making a parenting order in relation to a child the court must apply a presumption that it is in the best interests of the child for the parents to have equal-shared parental responsibility.  That provision relates to decision-making for children rather than the time that they spend with parents.  The wife has shown no propensity to be involved in that process and I have no understanding of her views about her capacity to communicate with her husband so that decisions on an ongoing basis in relation to the children could be made.

27. In circumstances where the husband has had sole parental responsibility for the children since late 2005, where the wife lives overseas and does not communicate with her husband whatsoever I find it is not in the best interests of the children for their parents to have equal-shared parental responsibility.  Accordingly for the purposes of s 61DA(4) the presumption is rebutted.

28. I then turn to the question of the division of property.  In Hickey v Hickey and Attorney-General (Cth) (2003) FLC 93-143 the Full Court set out the four-step process that a court must follow in relation to the determination of a property dispute:

    i)the court to make a finding as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing; 

    ii)the court should identify and assess the contributions of the parties within the meaning of s 79 and determined those contribution-based entitlements of the parties expressed as a percentage of the net value of the property of the parties; 

    iii)the court should identify and assess the relevant matters set out in s 79(4)(d), (e), (f) and (g) including, because of s 79(4)(e), the matters referred to in s 75(2) insofar as they are relevant and determine the adjustment, if any, that should be made to the contribution-based entitlements that the parties established in the second step; and

    iv)finally, the court should consider the effect of those findings and determinations and resolve what order is just and equitable in all of the circumstances of the case. 

29. That is the path that I have to follow, notwithstanding the matter remains undefended.  As I earlier said, the husband does not obtain judgment by default.  He has to prove his case.  The standard of proof is the balance of probabilities.

30. On the information provided to me, which is not only unchallenged but the only available credible material, I find that the parties' asset pool comprises: the former matrimonial home at G, valued at $230,000;  the property at S, valued at $191,000; the husband's 1997 Toyota Camry which has not been valued but, using the husband's estimate as an admission against interest, I am prepared to put it into the pool at the value of $3000; the husband's ANZ Bank savings of approximately $3000 which I have put in on the basis that I have presumed there were some savings at the time of separation; and the husband's nominal amount of shares in the Commonwealth Securities but I am proposing to then delete them on the basis that I have no real understanding of their values.

31. I propose also to ignore the furniture and chattels which have not been valued and which I have presumed are used extensively by the children in any event.  The liabilities of the parties are the St George Bank mortgage over the former matrimonial home which seems on the material to have an outstanding balance of about $115,000; and the same bank's mortgage over the S property, which seems to have a mortgage of about $191,000.

32. The husband also has a credit card debt liability but it is not appropriate that the wife share in that so I propose to exclude that from the list of liabilities.  I have left out the husband's superannuation because of its structure and type.  I do not see in this case how I can compare it with the other assets to which I have just referred. The husband's superannuation is valued at $531,000. It is a combination of defined benefit fund and accumulation fund.  I have been provided with the amounts as to the components and they are quite starkly different with the bulk of that money notionally in the defined benefit fund.

1. In Coghlan (2005) FLC 93-220 the majority of the Full Court said,

   We consider the preferred approach to the determination of property settlement cases must be to prepare, in addition to the list of items of property which would clearly fall within the definition of that term in s 4(1), a separate list containing any superannuation, interest or interests valued according to the regulations if a splitting order is sought in any application before the court or if no such order is sought that either according to the regulations or otherwise.

2. Their Honours said that whether or not a splitting order was sought on either party's application, their contributions to both the property as defined in s 4(1) and also the superannuation interests should be assessed. The other factors in s 79(4)(d), (e), (f) and (g) would then need to be considered. The s 75(2) factors would then be considered.

3. Similarly, the parties' future superannuation prospects, be they in capital or income form, would also need to be considered.  The overall justice and equity of the ultimate award, including any proposed splitting order or the need for such an order, would then be considered.  The Full Court then went on to set out how that pathway was to be followed.  Their Honours then said:

   In the context of the consideration of the matters referred to in subparagraphs (b) and (c) of a preceding paragraph in which they referred to the pathway the following matters may be relevant: the relationship between years of fund membership and cohabitation;  actual contributions made by the fund member at the commencement of the cohabitation (if applicable) at separation and at the date of hearing; preserved and non-preserved resignation entitlements at those times;  and any factors peculiar to the fund or to the spouse's present and/or future entitlements under the fund.

4. Their Honours then said: 

   If this approach is adopted whereby superannuation interests are dealt with separately from properties defined in s 4, but are subject to the considerations in s 79(4) then not only will any contributions both direct and indirect by either party to such superannuation interests be more likely to be given property recognition, but the real nature of the superannuation interests in question can also be taken into account both in consideration of the s 75(2) matters and in the final assessment of whether the ultimate order is just and equitable.

5. The Full Court referred to the real nature of the relevant superannuation interest and by that they were referring to not just the value of the superannuation interests according to the regulations but also the relevant value to the party in the future.  In this case, when also dealing with both superannuation and non‑superannuation assets, the husband is not aware of what assets or financial resources the wife has in Hong Kong or China but he does say in evidence that she has been working as a teacher in Hong Kong and on what he knows she would be earning approximately half of what he would earn in his position, and sharing the same teaching profession, he would have some idea of her current earnings.

6. In terms of contributions therefore, the essence of the second step is to assess and give weight to the various contributions of the parties. The categories are already set out in s 79(4) of the Act and I do not intend to repeat them. In this case the evidence that goes to the question of contributions is as follows:

   a)The parties met as students in Britain and had no significant assets at the start of their relationship

   b)During the marriage the wife made contributions as parent and home-maker.

   c)In turn the husband made financial contributions as the sole income earner and non-financial contributions as parent and home-maker.

   d)The husband and wife renovated the former matrimonial home and although the husband says he did most of the work himself there would no doubt be some similar non-financial contributions made by the wife it is nigh on impossible in a subjective judgement to try and quantify those particular contributions when they are so different.

7. Until the time of separation therefore, in respect at least of the non‑superannuation assets, I find that the parties have contributed equally.  Post separation, however, things have been radically different.  The wife has not made any post-separation contribution to the support of the household and certainly does not pay child support.  The husband has made significant post‑separation contributions as he currently pays the mortgage repayments which provides the roof over the head of the children; the day-to-day living expenses of the children and, importantly, their education costs.

8. In addition he has had the significant physical burden of caring for the children by himself.  In this case I find that to be very relevant.  Whilst it might be said that the husband and wife contributed equally until separation I cannot ignore the three years since separation where the burden has fallen specifically on the husband alone.  Accordingly, when making a subjective assessment, I would find that the contributions of the non-superannuation assets amount to 70 per cent to the husband and 30 per cent to the wife.

9. In relation to superannuation, it is a similar situation.  Up until separation it is clear that the parties contributed in their own significant ways such that I could not be satisfied that there was anything other than equality to that point in time.  I do have evidence, set out in the husband's affidavit, that as at the date of separation the value of the superannuation was $294,000.  It has now risen to $531,000.  The disparity between the two sums, which arises as a result of a three-and-a-half year gap, may have many bases.

10. The first of course is that the husband has continued to work and this is a defined-benefit fund.  In addition he has had salary increases which have put him in the category that he now enjoys.  In addition to that, the accumulation component has continued to amass some interest, presumably at government rates.  However, offset against those increases has been the fact that there was seed capital, not only in terms of the value as at separation, but also that the husband has the position of employment that he does by virtue of the wife's contribution during the period of time that the parties were together.

11. To that extent it is a little more difficult to try and quantify the contributions and, having regard to the totally different nature of non-superannuation and superannuation assets, I cannot find the same contributions.  In this case I find the contributions favour the husband as to 60 per cent and to the wife 40 per cent.

12. I turn then to the factors set out in s 75(2) of the Act. I am at a significant disadvantage here because I do not have any information from the wife. I do have the evidence of the husband about what she might be earning in the event that she is engaged as a teacher but not much more than that. The husband will continue to provide the support of the children and to pay their educational expenses and provide housing for them for a significant period of time. The ongoing care of children in these circumstances is the most significant factor.

13. The youngest child is aged eight years; and thus, there are many years of contribution as a parent yet to go without the support, physically or financially, from the wife.  I have to offset that however against the husband's earning capacity which shows that his current income is in excess of $100,000 per annum. 

14. The other unusual feature of this case relates to the child S, who is 18 years of age and is now in her first year of university at the Australian National University.  In his affidavit the husband set out the costs that he is incurring by providing rental accommodation, as well as living expenses and the necessary costs that are needed to enable S to attend university in terms of books and the like. 

15. S is an adult but she has the ongoing expenses providing she continues in her degree. It is obvious that the costs of maintaining S will fall either upon the husband or S herself. The evidence is that at least the last 12 months, and in the next four years, the husband will pay something in the vicinity of $100,000, if not more, towards S’s support. Normally when I deal with s 75(2) factors, as I pointed out in Hickey's case, the adjustment should be made in percentage terms.

16. The court is not obliged to necessarily make a percentage adjustment because the ultimate objective is to obtain an outcome which is just and equitable. This case is difficult because of trying to factor in the S component. Accordingly I propose to separate the S component out from the rest of the s 75(2) adjustments. It is quite clear in this case that the wife is unlikely to provide child support. The husband does not have a new partner for the purposes of s 75(2) but he does enjoy good health and has a significant earning capacity.

17. The wife has a Bachelor Degree with Honours from the United Kingdom and a recent post-graduate qualification as well. Her state of health is not known; nor is the question of whether or not she has re-partnered. In my view this is a case where I ought to make an adjustment in the husband's favour for s 75(2) factors in relation to the question of both the two youngest children and S, and simply quantify it by saying that the husband should have 100 per cent of the non-superannuation assets; in other words, an adjustment of about 30 per cent all up.

18. In respect of the superannuation assets it is a little difficult also, because I can factor in that the superannuation will continue to grow.  I am also conscious of the fact that the wife may very well have superannuation in the future but I do not have any evidence about that.  The dilemma for me is that the superannuation trustee has not been served with any notice of a potential splitting order.

19. That is perhaps not surprising in this case because the husband's application was for 100 per cent of all of the assets.  What I propose to do in this case is to make orders relating to the non-superannuation assets and to adjourn the proceedings part-heard, for a short period of time to enable the question of whether or not the superannuation trustee is wishing to have some input or say in relation to a splitting order in relation to the husband’s superannuation fund.

20. What I have in mind at this stage is a flat figure of $100,000 out of the total of the husband's entitlement in that fund.  I propose to reserve the question of whether or not I will ultimately make that order in respect of the superannuation fund until I hear from the trustee.  If the trustee is content for that splitting order to be so made then that is the order I propose to make.  I propose to have the matter re-listed in two weeks' time so that that consideration can then be finalised. 

21. The final aspect of this case relates to the husband's application for an order under s 106A on the basis that, as the wife has not participated in the proceedings, one can conclude that that situation will continue. On that basis, giving effect to these orders will be difficult without the assistance of a registrar having the capacity to sign the necessary documents to implement the orders I propose.

22. I have now had an application made by the husband for costs. The provisions of s 117 of the Act apply in relation to costs, namely, that each party bears their own costs. The exception to that rule is where the court is satisfied that it is justified in making an order for costs, in other words departing from the principle that each party pays their own.

23. In making the determination to depart from that principle the court is obliged, under s 117(2A) to take into account a number of factors. Those factors include the financial circumstances of each of the parties to the proceedings. In this case I have no material from the wife so I am unaware of her financial position. As a result of the orders that I propose to make, it is most likely that she will end up with a significant sum of money in a superannuation fund in the future.

24. I am also obliged to take into account whether or not there are parties represented by a legal aid grant and that has not occurred here.  I am also obliged to take into account the conduct of the parties in relation to the question of pleadings, particulars, discovery, inspection, directions to answer questions, production of documents, submissions of fact, and similar matters.  In this case the wife has not provided any material and to that extent, she has failed to comply with her obligations under chapter 13 of the rules to makes proper disclosure.

25. I am also entitled to take into account whether the proceedings were necessitated by the failure of the party to the proceedings to comply with previous court orders.  To some extent that does not matter in this case because the proceedings would have probably got some way down the litigation path anyway but it is certainly something that I can take into account.  There is also an entitlement to take into account whether any party to the proceedings has been wholly unsuccessful and I do not doubt in this case that the wife has been wholly unsuccessful.

26. The husband has not been entirely successful having regard to the fact that he has not got 100 per cent of all the assets but I am not sure what else he could have done.  In this case it is appropriate that I exercise my discretion.  The husband has had to incur costs as well as expenses such as valuations which are not being shared by the wife.

27. I think in those circumstances I think it appropriate that the wife make a contribution towards his costs.  The husband says that he has incurred $11,419 which include the costs for appearances today but those are pursuant to a cost agreement and that amount substantially departs from the schedule to the rules and this is not a case where I would make an order for indemnity costs.

28. In the exercise of discretion however I propose to order that the wife pay the husband's costs of $5000.  It is clear from what I have already set out in the judgment that the prospects of recovery against the wife are negligible and there are no other assets that could otherwise be attached.  Having regard to the obligations of the husband to support the two younger children and his adult daughter it would be unfair in my view to make an order for costs that would be unlikely to be recovered. 

29. In those circumstances I propose to reduce what I had intended to make, and may still make, in relation to the superannuation splitting order as an adjustment for those costs.  I will adjourn the matter part heard to 8 June 2009.  I will make formal orders relating to the property non-superannuation assets and I will adjourn for the production of material for the view of the trustee which should be way of affidavit.  It is for a proposed superannuation splitting order of $95,000. 

30. I will order that my reasons this day be transcribed and the orders that I have indicated I will make in relation to the non-superannuation assets are effectively interim orders pending the further determination on 8 May.

I certify that the preceding Sixty Two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  11 May 2009