Bissett & Bissett [2017] FCCA 2815 (20 October 2017)

the Husband be and is hereby restrained by himself, his servants or agents from executing a Death Benefit Nomination in favour of any person or doing any other act or thing which would render any part of his interest in the Superannuation Fund a "not splittable payment" within the meaning of Regulations 12 or 13 of the Family Law (Superannuation) Regulations 2001.

(10) That the Court notes:

• (i) That the value of the transferable benefits from the Husband's interest to the Wife's interest are calculated in accordance with r.7A.13 of the Superannuation Industry (Supervision) Regulations 1994;

• (ii) Pursuant to r.14F of the Family Law (Superannuation) Regulations 2001, any payments from the Husband's superannuation interest in the Superannuation Fund made after the Trustee has created a new interest in the Wife's name in the Superannuation Fund, as contemplated in these Orders, are not splittable payments; and

• (iii) The Trustee will be relieved of its obligations to calculate and split payments under these Orders in the event that a lump sum is paid to the Wife in accordance with the requirements under the Superannuation Industry (Supervision) Regulations 1994.

(11) That each party and the Trustee have liberty to apply in relation to the implementation of the Orders affecting the Husband's superannuation interest.

(12) That a copy of these Orders be served forthwith upon the Trustee.

(13) That within 21 days of the date of these Orders the parties do all such acts and things and sign all documents necessary to place the real property situate at and known as Property A, being the whole of the land more particularly described in Certificate of Title Volume (omitted) Folio (omitted) ("the Property A property") on the market for sale on the following terms and conditions:

• (a) The Wife have the sole conduct of the sale and be authorised to communicate directly with the real estate agent appointed in the sale of the property and authorise the said real estate agent to undertake all necessary actions in relation to the said sale without reference to the Husband;

• (b) (omitted) of (omitted), shall be the appointed real estate agent;

• (c) The reserve price shall be as determined by the Wife in consultation with the real estate agent (NOTING THAT the estimated selling range is between $780,000 and $830,000);

• (d) The method of sale of the Property A property shall be as determined by the Wife in consultation with the real estate agent;

• (e) (omitted) Conveyancing, shall be retained by the Wife for the purposes of the sale and be remunerated on their standard conveyancing rates applicable to such transactions;

• (f) The Wife is authorised to communicate directly with the real estate agent having control of the leasing of the Property A property and authorise the said agent to undertake all necessary actions in relation to the said sale without reference to the Husband including making the key available and allowing inspection of the real property at times requested by the real estate agent appointed in the sale of the property; and

• (g) The Husband is restrained by injunction from in any way interfering with the sale of the Property A property, including but not limited to obstructing the real estate agent appointed in the sale of the property or the leasing agent.

(14) That within seven days of being so requested, the parties sign all documents necessary to give effect to the sale of the Property A property including signing the contract of sale, vendor's statement, all necessary transfer documents, mortgage discharge documents and any other document necessary to effect settlement of the sale.

(15) That upon the settlement of the sale of the Property A property the sale proceeds shall be applied as follows:

• (a) Firstly, to pay all costs, commissions, and expenses of the sale including conveyancing costs;
• (b) Secondly, to discharge the mortgage and any other encumbrance affecting the Property A property;
• (c) Thirdly, to pay any council and water rates and other charges affecting the Property A property;
• (d) Fourthly, to pay to the Husband a sum to be calculated in accordance with order 23, on account of the capital gains taxation arising from the sale;
• (e) Fifthly, the balance then remaining as to:

  • (i) 55% to the Wife, to be paid in the first instance to the Cahill & Rowe Family Law Trust Account; and

  • (ii) 45% to the Husband, subject to order 25(b).

(16) That pending the settlement of the sale of the Property A property:

• (a) The Husband shall continue to have the sole right to receipt of any rental income;
• (b) The Husband shall continue to pay all instalments pursuant to the mortgage secured against the Property A property and all rates, taxes and apportionable outgoings of the Property A property as and when they fall due and at the level as at the date of these orders;
• (c) The parties are restrained by way of injunction from further encumbering the Property A property, including but not limited to increasing the value of the mortgage encumbering the property as at the date of these orders; and
• (d) The parties shall hold their respective interests in the Property A property upon trust pursuant to these orders.

(17) That within 21 days of the date of these Orders, the parties do all such acts and things and sign all documents necessary to place the real property situate at and known as Property B, being the whole of the land more particularly described in Certificate of Title Volume (omitted) Folio (omitted) ("the Property B property") on the market for sale on the following terms and conditions:

• (a) The Wife have the sole conduct of the sale and be authorised to communicate directly with the real estate agent appointed in the sale of the property and authorise the said real estate agent to undertake all necessary actions in relation to the said sale without reference to the Husband;

• (b) Mr T of (omitted) shall be the appointed real estate agent;

• (c) The reserve price shall be as determined by the Wife in consultation with the real estate agent (NOTING THAT the estimated selling range is between $1,300,000 and $1,500,000);

• (d) The method of sale of the Property B property shall be as determined by the Wife in consultation with the real estate agent (NOTING THAT the recommended method of sale is by public auction);

• (e) (omitted) Conveyancing shall be retained by the Wife for the purposes of the sale and be remunerated on their standard conveyancing rates applicable to such transactions;

• (f) The Wife is authorised to communicate directly with the real estate agent having control of the leasing of the Property B property and authorise the said agent to undertake all necessary actions in relation to the said sale without reference to the Husband, including making the key available and allowing inspection of the real property at times requested by the real estate agent appointed in the sale of the property; and

• (g) The Husband is restrained by injunction from in any way interfering with the sale of the Property A property, including but not limited to obstructing the real estate agent appointee in the sale of the property or the leasing agent.

(18) That within seven days of being so requested, the parties sign all documents necessary to give effect to the sale of the Property A property including signing the contract of sale, vendor's statement, all necessary transfer documents, mortgage discharge documents and any other document necessary to effect settlement of the sale.

(19) That upon the settlement of the sale of the Property B property the sale proceeds shall be applied as follows:

• (a) Firstly, to pay all costs, commissions, and expenses of the sale including conveyancing costs;
• (b) Secondly, to discharge the mortgage and any other encumbrance affecting the Property B property;
• (c) Thirdly, to pay any council and water rates and other charges affecting the Property B property;
• (d) Fourthly, to pay to the Husband a sum to be calculated in accordance with order 23, on account of the capital gains taxation arising from the sale; and
• (e) Fifthly, the balance then remaining as to:

  • (i) 55% to the Wife, to be paid in the first instance to the Cahill & Rowe Family Law Trust Account; and

  • (ii) 45% to the Husband, subject to order 25(b)

(20) That pending the settlement of the sale of the Property B property:

• (a) The Husband shall continue to have the sole right to receipt of any rental income;
• (b) The Husband shall continue to pay all instalments pursuant to the mortgage secured against the Property B property and all rates, taxes and apportionable outgoings of the Property B property as and when they fall due and at the level as at the date of these orders;
• (c) The parties are restrained by way of injunction from further encumbering the Property B property, including but not limited to increasing the value of the mortgage encumbering the property as at the date of these orders; and
• (d) The parties shall hold their respective interests in the Property B property upon trust pursuant to these orders.

(21) That forthwith upon a contract of sale being signed in relation to the Property B property and the Property A property respectively, the Wife appoint Ms M of (omitted) to prepare an advice on the estimated capital gains taxation payable upon each of the respective sales.

(22) That the cost of Ms M's advice pursuant to order 21 be treated as cost of sale for the purposes of orders 15(a) and 19(a) respectively.

(23) That the amount to be paid to the Husband pursuant to orders 15(d) and 19(d) respectively be the amounts estimated by Ms M in her advice pursuant to order 21.

(24) That the Husband otherwise shall be solely liable for and indemnify the Wife absolutely against any and all capital gains taxation liabilities which may be triggered upon the settlement of the sale of the Property A property and the Property B property which will be assessed in his name.

(25) That the Husband pay to the Wife the total sum of $1,036,411 ("the payment"), as follows:

• (a) By 3pm on 25 October 2017, the Husband do all such acts and things and sign all documents necessary to pay to the Wife the entire proceeds held by him in Account number (omitted) with the (omitted) Bank (NOTING THAT the balance held in that account as at 1 March 2017 was $476,190.30); and
• (b) If there is a shortfall after the payment to the wife pursuant to order 25(a), the funds to be paid to the Husband from the sale of the Property B property pursuant to order 19(e)(ii) and the Property A property pursuant to order 15(e)(ii) be paid to the Wife in whatever sum is necessary to make the complete payment due to the Wife pursuant to this Order, and for the purpose of this order the payment shall be paid to the Wife directly at settlement of the sale of the respective properties; and
• (c) If there is a shortfall after the payments to the wife pursuant to orders 25(a) and 25(b), within 30 days of the date of the settlement of the Property B property or the Property A property (whichever is later), the Husband do all such acts and things and sign all documents necessary to transfer to the Wife (at the Husband's expense) shares held by him personally with an equivalent value to the amount due to the Wife pursuant to this order and for the purpose of this order:

  • (i) the value of the shares is to be taken as at the date of the transfer pursuant to this order; and

  • (ii) the shares to be transferred are as follows and in the following order, as necessary until the full payment is made to the wife:

    • (A) (omitted) shares;
    • (B) (omitted);
    • (C) (omitted);
    • (D) (omitted); and

  • (E) The wife has liberty to apply in relation to which further shares are to be transferred to her in the event that there remains a shortfall after compliance with order 25(c)(ii)(A)-(E).

(26) In the event that the Husband defaults in the payment due to the Wife pursuant to Order 25, interest shall accrue on the outstanding amount due to the Wife in accordance with the penalty interest rate as determined by the Family Law Rules 2005 (Cth) such interest to begin to accrue upon a default pursuant to order 25(c).

(27) That pending the payment pursuant to order 25(a):

• (a) the Husband be restrained by way of injunction from withdrawing or in any other way diminishing the funds held by him in Account number (omitted) with the (omitted) Bank save for the purpose of giving effect to order 25(a).

(28) That pending the full payment being made to the Wife pursuant to order 25, the Husband be restrained by injunction from selling, encumbering or in any way dealing with the shares in his personal name as at the date of these Orders.

(29) That contemporaneously with the full payment being made to the Wife pursuant to order 25:

• (a) The Husband and the Wife do all such acts and things and sign all documents as may be necessary to transfer to the Husband, at the expense of the Husband, all of the Wife's right, title and interest (30%) in the real property situate at and known as Property C being the whole of the land more particularly described in Certificate of Title Volume (omitted) Folio (omitted) ("the Property C property"); and
• (b) The Husband, at his expense, discharge the mortgage registered number (omitted) in favour of the (omitted) Bank secured against the Property C property absolutely (NOTING THAT the Wife does not believe that any monies are owing under the Property C mortgage.

(30) That upon the making of Final Orders it shall be declared that the Husband has no right, title or interest in, nor any right to claim any interest in, the real property situate at Property D being the whole of the land more particularly described in Certificate of Title Volume (omitted) Folio (omitted) ("the Property D property").

(31) The Wife shall indemnify the Husband absolutely against all payment and liability for the mortgage registered number (omitted) in favour of the (omitted) and the funds owed to her brother in relation to the purchase of the property.

(32) That unless otherwise specified in these Orders and save for the purpose of enforcing these Orders:

• (a) Each party shall be solely entitled to the exclusion of the other to all property (including choses in action) in their own name or possession or in the name of an entity controlled by the said party;
• (b) Insurance policies shall remain the sole property of the owner named therein;
• (c) Each party foregoes any claim they may have to any superannuation benefits belonging to or earned by the other;
• (d) Monies standing to the credit of the party in any bank accounts are to be retained by the party in whose name the account is held;
• (e) Any joint tenancy of the parties in any real or personal estate is hereby expressly served; and
• (f) Each party shall be solely liable for any liability in their name or in the name of an entity controlled by them or in which they otherwise have an interest or encumbering any item of property which they are to retain pursuant to these Orders, and shall indemnify the other party in relation thereto.

(33) If the Husband does not comply with his obligations (or any of them) pursuant to these Orders, a Registrar of this Court be appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) to execute, in the name of the husband, all deeds and instruments necessary to give effect to the orders herein or any of them and do all acts and things necessary to give validity and operation to the said deeds and instruments.

(34) That the Wife have liberty to apply to this Court at short notice:

• (a) In the event that the mortgages encumbering the Property A and/or the Property B properties are greater than the figures estimated by the Wife in her supporting Affidavit;
• (b) In the event that the bank balances in the Husband's (omitted) bank account to be transferred to the Wife herein have been depleted below the balances referred to herein;
• (c) In relation to the terms of the sale of the Property B and/or Property A properties; and
• (d) In the event that the Husband defaults with his obligations pursuant to these Orders.

(35) That in order to give effect to these Orders, the Wife be permitted to provide a copy of the Orders to:

• (a) The (omitted) Bank;
• (b) The (omitted) Bank;
• (c) The real estate agents appointed in the sale of the Property A and Property B properties, respectively;
• (d) The respective leasing agents in relation to the Property A and Property B properties; and
• (e) The conveyancer appointed in relation to the sale of the Property A and Property B properties.

(36) That the Husband pay the Wife's costs of and incidental to this Application fixed in the sum of $8685.

(37) A copy of this Order be served by forwarding same by email to (omitted) by ordinary prepaid post to the Husband's address at (omitted) and by sending an SMS message to the Husband on (omitted) with a message in the form "final orders have been made against you on 20 October 2017. You should contact the Chambers of Judge McNab on (omitted)."

1. The Court finds that there has been service of the Court documents and the affidavits relied upon in the final hearing and the minutes of proposed final orders having regard to the affidavits of Ms K sworn 20 December 2016, 27 February 2017 and 18 October 2017.
2. An application may be made within 21 days of the date of this Order to set aside this Order pursuant to r. 16.05(1) of the Federal Circuit Court Rules by reason that it has been made in the absence of the Respondent.

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

1. One of the marked features of this proceeding is the complete lack of involvement by the respondent husband in the proceeding. The Court has not been assisted by any submissions made on his behalf and he has not filed any evidence. The wife has had to ascertain the asset pool in circumstances where she has little or no direct involvement in the financial investment decisions made by the husband over the years. This has led to the wife incurring costs unnecessarily because of the husband's failure to make disclosure. The costs order made reflects this circumstance.
2. The attempts of service of documents and attempts to make the respondent husband aware of these proceedings are detailed in affidavits of service affirmed by Ms K on 20 December 2016, 27 February 2017 and 18 October 2017. There have been numerous attempts of personal service of the application and documents.
3. The Court is persuaded that the husband has received and has been served with the Court documents and the affidavits relied upon in the final hearing and the minutes of proposed final orders having regard to those affidavits. A notation to that effect will be included in the orders of the Court.
4. The legal principles that I have applied in determining this matter, which is an application for property orders, are set out in the decision of the Full Court in In the Marriage of Hickey [2003] FamCA 395; (2003) 30 Fam LR 355, wherein that decision identified a four step process the Court was required to adopt in property matters under the Family Law Act 1975 (Cth) ('the Act'), being:

1. to identify the pool of assets and liabilities generally and usually at the time of hearing; 2. to assess the relative contributions of the parties, both financial and non-financial of direct and indirect nature, as specified by section 79(4) of the Act; and

1. to consider the relevant factors in section 75(2) of the Act to finally determine whether the order the Court proposes to make is just and equitable to both parties.
2. In my view, it is just and equitable for the Court to make orders in this case having regard to the fact that over the period of the marriage, substantial assets have accrued but many in the name of the husband only and there should be an adjustment to reflect the wife's interests in those assets.

1. The Court has had to rely on the affidavits of the applicant wife in order to ascertain the background facts of this matter. I set them out having regard to the material in the affidavits, in particular, an affidavit sworn 27 February 2017, an affidavit sworn 7 October 2016 and an affidavit sworn 22 September 2017.
2. The applicant and the respondent commenced a relationship in (omitted) 1993, were married in 1994 and commenced residing together on that date. They separated on a final basis on about 1 December 2015. At that time they continued to live separated under one roof until 21 April 2016, at which time the wife moved into separate accommodation with her children.
3. There are three children to the marriage, only one of whom remains under the age of 18:

1. Ms S, born (omitted) 1995, who is aged 22 years and is in her fourth year of study of (course omitted) at (omitted); 2. Ms C, born (omitted) 1998, who is aged 19 years and commenced a (omitted) apprenticeship in (omitted) 2017; and

1. X, born (omitted) 2002, who is presently aged 15 years and is completing year 10 at (omitted) School.
2. The proceedings were commenced on 10 October 2016. There were attempts to negotiate settlement with the husband, which did not bear fruit. In fact, the husband failed to participate in negotiation.

1. The husband has not participated in these proceedings and the wife has had to ascertain the pool of assets to the best of her ability without any assistance from him. This has required the issuing of numerous subpoenas. The pool of assets, liabilities and superannuation interests are set out at paragraph [24] of the wife's affidavit of 22 September 2017.
2. The pool of assets shows a total pool of non-superannuation assets in the sum of $3,580,775 and superannuation interests in the sum of $1,132,639.
3. The wife records liabilities in favour of her brother, Mr S, in the sum of $117,904, inclusive of interest. Having regard to an affidavit filed by Mr S, tendered in the proceeding, I am persuaded that there is a further loan of $3,690 owed to the same person. I am of the view that those loans are bona fide loans and are owing to Mr S. They were moneys advanced at or about the time that the wife left the family home with the children and were required by her to fund the purchase of her current residence at Property D in Property D. I am of the view that that is a bona fide liability which is required to be paid back by the wife to Mr S and therefore will be taken into account in the pool of assets.
4. The substantial assets are:

1. the home where the respondent currently lives in Property C to the estimated value of $310,000; 2. a residential property in Property B with an estimated value of $1.4 million;

1. a house in Property A with an estimated value of $805,000; and

1. cash in the husband's name in a (omitted) bank account in the sum of $476,190.
2. The balance of the assets is made up of the property where the wife currently resides and various shareholdings, which are outlined in the affidavit.
3. The pool of assets represent the wife doing the best that she can to ascertain the true pool and she has done so through the use of subpoenas and without any assistance from the husband disclosing assets. Assets were accrued, in particular, the cash in the bank account without the knowledge of the wife. It seems that the husband was largely responsible for investment decisions made on behalf of the family.
4. The Court finds that the pool of non-superannuation assets is $3,950, and the sum of the superannuation assets is $1,132,649.

1. Turning to the matter of contributions, there has been a significant contribution made by the husband to the pool of assets, principally through his acquisition of the property in Property B, having obtained a transfer to that property in 1998 for the sum of $258,000.
2. The wife's evidence in relation to contribution is set out in paragraphs [39] to [55] of her affidavit sworn 7 October 2016. I accept the evidence that she has given in relation to contribution.
3. I take into account the husband's contribution, by reason of his initial introduction of the asset and the other matters which are dealt with in paragraphs [39] to [55] of the affidavit in the sum of five per cent.

Section 75(2) factors

1. In terms of section 75(2) factors, I refer to paragraphs [51] to [66] of the affidavit of the wife, sworn on 22 September 2017. The wife is 49 years of age, and is employed on a permanent part-time basis as a (occupation omitted) in (omitted). Her 2017 group certificate reflects that she earned a gross income of $49,266, made up of about $46,000 from employment, and the remainder represents share proceeds.
2. She receives $112 per fortnight by way of government benefits, being Family Tax Benefits A and B. She has to make payments of her mortgage, and otherwise has to meet the needs of her family. All of the children reside with her, and she meets the rates, utilities, and maintains the vehicle.
3. She is a sole parent and the sole caregiver to her three children, who are, as mentioned earlier, aged 22, 19 and 15. The husband does pay child support, but there have been periods where he has been in arrears. Apart from the child support paid, the payment of the school fees for the youngest child and the payment of private health insurance, the wife otherwise supports herself and the children on her own.
4. On the other hand, the husband is employed on a full-time basis as a (occupation omitted) at (employer omitted). The evidence ascertained through the use of subpoenas shows that his income as at 23 February 2017 was in the sum of $143,958 plus superannuation. Whilst the subpoenaed documents indicate that the respondent has not completed his 2016 income tax return, his 2014 tax return showed a taxable income of $209,683, and his 2015 tax return revealed a taxable income of $224,738.
5. The wife, in the position she holds, is unlikely to see a significant change to her income, and I find that she is likely to continue to earn something in the order of $50,000 per annum. There is no evidence before the Court which would suggest that the husband is not likely to continue to derive a far more substantial income and have the benefit of that income, with the opportunity to make investments and to accrue superannuation at a higher level. The wife has ongoing needs in relation to the care of her children. Whilst two of them are over the age of 18, both of them are studying, and the youngest will be studying or training, and there will be ongoing costs associated with the children.
6. In those circumstances, having regard to the disparity in the earnings and the ongoing financial needs of the wife, I assess her needs in the quantum of 15 per cent of the pool as against the husband. In my view, it is just and equitable that the wife receives 55 per cent of the total pool of the assets, and that there be an equalisation of the superannuation interests. I note that the superannuation fund, (omitted), has been accorded procedural fairness, and does not oppose the orders being made in those terms.
7. The Court has made orders in the terms of the order provided by the applicant.
8. In regards to the form of the orders, the Court was helpfully referred to a decision of decision of the full Court of the Family Court of Australia in Chang & Su [2002] FamCA 156. In my view, the orders made show that the husband will be able to meet the order made and still retain for himself adequate assets so as to make the outcome of the proceedings just and equitable. In that regard I refer to paragraph [72] of that decision.
9. I was also referred to the decision of the full Court in Turner & Turner and Anor [2016] FamCAFC 121 and in my view, the proposals of the applicant took into account the cost of realising assets and transferring assets, in particular the shares, and there has been active consideration of the actual costs associated with the orders and the transfers of shares.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge McNab.