ABRESCH & ABRESCH

[2019] FCCA 3481

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABRESCH & ABRESCH [2019] FCCA 3481

Catchwords:
FAMILY LAW – Property adjustment – assessment of contributions – orders made.

Legislation:

Family Law Act 1975, ss.75, 79

Cases cited:

Trebiano & Trebiano [2018] FamCA 344
Chancellor & McCoy [2016] FamCAFC 256
Russell & Russell [1999] FamCA 1875
Teal & Teal [2010] FamCAFC 120
Kennon & Kennon (1997) FLC 92-757
Keating & Keating [2019] FamCAFC 46

Applicant: MS ABRESCH

Respondent: MR ABRESCH

File Number: PAC 5137 of 2017

Judgment of: Judge Newbrun

Hearing dates: 25 and 26 November 2019

Date of Last Submission: 26 November 2019

Delivered at: Parramatta

Delivered on: 9 December 2019

REPRESENTATION

Counsel for the Applicant: Mr Maddox

Solicitors for the Applicant: Mr Low

Counsel for the Respondent: Mr Blank

Solicitors for the Respondent: Mr Hargreaves

ORDERS

1.   Within 8 weeks of the date of these orders, the husband pay the wife $446,530 and in exchange the wife shall do all things necessary to transfer her right, title and interest in the property at A Street, Town B, NSW, being folio identifiers … and … (hereafter referred to as ‘the home’) to the husband. Contemporaneously, the husband shall cause the mortgage currently registered over the home to be discharged and refinanced into his name at his expense.

2.   If at the expiration of 8 weeks from the date of making these orders, the husband has failed to pay the wife $446,530 and discharge and refinance the mortgage currently registered over the home, then both parties shall cause the sale of the home and the proceeds of sale to be paid in the following manner and priority:-

2.1.Payment of monies owing on any mortgage;

2.2.Payment of outstanding rates, levies and taxes;

2.3.Payment of estate agent’s commission;

2.4.Payment of legal costs on sale;

2.5.Payment of the balance as to:

2.5.1.62.5% to the wife plus a cash payment of $63,285;

2.5.2.The balance to the husband.

3.   That for the purpose of the sale of the home, the parties shall comply with the following promises:-

3.1.The home shall, within 4 weeks, be placed on the market for sale by private treaty at a price to be agreed by the parties and, in the absence of agreement than at a price recommended by a valuer nominated by the President for the time being of the Australian Property Institute, which valuer the parties shall appoint for this purpose and the cost of which shall be deemed to be a legal cost on sale.

3.2.The home shall be placed in the hands of at least one reputable real estate agent practising within the property’s area. In the event that the parties do not agree on the agent/s the wife shall nominate three such agents and the husband shall select one of those three.

3.3.The wife covenants to co-operate with the agent so selected including, but not limited to, providing access at such times reasonably requested by the agent and ensuring that the home is in a neat and clean condition at the time of inspection by prospective purchasers.

3.4.If a sale is not effected (by exchange of Agreements) within three (3) months having regard to the foregoing criteria, the parties shall cause the home to be sold by public auction through the one selected agent for the best available price selecting such reserve as they agree, and, in the absence of agreement, then at such amount as the selected agent reasonably nominates on the day preceding the auction.

3.5.In the event that the reserve price of the home is not reached, the parties may negotiate with the highest bidder present at the auction or any other interested party in an effort to sell the home at a price not more than 5% below the reserved price of the home.

3.6.If agreements for sale of the home are not exchanged at a price of not more than 5% below the reserve price as aforesaid within 14 days of the auction taking place then the parties must forthwith re-list the home for sale by private treaty with the said listing agent and must in the absence of any mutually agreed price in writing between them sell the home at the highest price offered in writing and received by the said agent within a period of 30 days from the date of the auction, or such later date as they may agree in writing, provided that such price must not be more than 10% below the reserve price for the home.

3.7.In the event that the highest price offered as aforesaid is more than 10% below the reserve price, the parties agrees that the home must be forthwith listed for sale by way of public auction with the said listing agent and the said agent must determine the auction date and the home must be sold to the highest bidder at that auction, and it is further agreed by the parties that either party is at liberty to bid at any such auction and that there will be no reserve price to apply at such auction.

3.8.Low Doherty & Stratford Lawyers shall principally act in connection with the sale but in conjunction with each parties solicitors and their combined reasonable costs shall be included in the expression “legal costs on sale”.

3.9.The parties may agree in writing between themselves to a variation of the foregoing provisions.

4.   Within 28 days the husband and wife will take all reasonable steps to enable the husband to collect from the wife the Motor Vehicle N registration number …, and thereafter the husband is declared the sole owner of such vehicle.

5.   Pending the sale of the home, the husband be solely responsible for payment of mortgage, outgoings, rates and taxes as and when they fall due.

6. Pursuant to section 81 of the Family Law Act the parties intend these Orders to finally determine all financial relations and issues between them (including any spousal maintenance) and avoid further proceedings between them.

7.   Both parties do all acts and things and execute all documents, authorities and writings as are necessary to give effect to all or any of these Orders.

8. Pursuant to section 79 of the Family Law Act the parties are and are deemed to be the sole owner respectively at law and in equity to the exclusion of the other of all other assets and financial resources within their respective ownership, possession or control, whether vested or contingent.

9. In the event that either party fails, refuses or neglects to execute any document necessary to give effect to these orders, then, under section 106A of the Family Law Act, the Registrar of this Court be appointed to execute the documentation in the name of the defaulting party.

10. Liberty to the parties to apply to the Court on seven days’ notice in relation to the implementation of the above Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5137 of 2017

MS ABRESCH

Applicant

And

MR ABRESCH

Respondent

REASONS FOR JUDGMENT

1.These are Reasons for Judgment relating to property proceedings between the parties. 

2.In relation to property proceedings, the wife sought Orders as set out in her Initiating Application filed 13 October 2017.  The wife sought orders, inter alia, that the former matrimonial home (“the home”) be sold and the net proceeds be divided 70/30 in the wife’s favour. She sought an equal division of the husband’s car business, and an equal split of the husband’s superannuation.

3.The husband at the start of the trial sought Orders as set out in his Response filed 22 January 2018, inter alia, being that the pool of assets of the marriage, as agreed or assessed, be divided equally; and that the husband receive credit for 50% of sums expended in respect of the mortgage and outgoings on the home since separation against any amount payable to the wife.

4.During oral submissions, the husband did not press his proposed orders 2, 3 and 4; rather, he requested the Court to take into account the factual matters asserted in those orders when assessing the husband’s contributions.

Material relied upon by the wife

a)Initiating Application filed on 13 October 2017;

b)Affidavit of the wife filed on 18 November 2019;

c)Affidavit by Kelvin Low, solicitor, filed on 18 November 2019 and subpoena to Ms C;

d)Affidavit of Ms D (psychologist) filed on 12 November 2019;

e)Affidavit of Dr E filed on 20 November 2019;

f)Financial Statement of wife filed 6 November 2019.

Material relied upon by the husband:

a)Response filed 22 January 2018;

b)Affidavit of Mr Abresch sworn 7 November 2019;

c)Financial Statement sworn 7 November 2019.

Exhibits:

a)Exhibit A: ASIC search document regarding F Pty Ltd business registration;

b)Exhibit B: NSW Police subpoenaed records: document outlining the husband’s criminal history;

c)Exhibit C: joint Balance Sheet;

d)Exhibit  D: Newstart documents;

e)Exhibit  E: letter dated 8 October 2019 from wife’s solicitors to  Ms D, psychologist;

f)Exhibit  F: tender bundle: correspondence between Centrelink and the wife;

g)Exhibit  G: Colour photographs annexed to husband’s Affidavit (pp110-114);

h)Exhibit  H: Valuation of the home;

i)Exhibit I: Loan documents.

Evidence

5.Throughout these reasons the Court will refer to a number of facts.  Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.

6.The wife is aged 44 years.  The husband is aged 50 years.  The husband continues to operate a business.  The wife is not presently working in employment.

7.The parties’ relationship spanned the period from … 1991 to about November/December 2011.

8.At cohabitation, neither party had significant assets.

9.The parties had 2 children, now aged 24 and 26 years.

10.The wife was subjected to family violence perpetrated against her by the husband. The Court refers to the mother’s Affidavit evidence in this context which the Court accepts.  The Court refers to the history taken from the wife by the psychologist Mr G and referred to in his report dated 3 August 2013, in relation to certain family violence perpetrated against her by the husband, and which the Court accepts.

11.The parties’ son was subjected to family violence perpetrated against him by the father during the relationship. The Court accepts the wife’s evidence in this regard.  The Court accepts the history taken from the wife by the psychologist Mr G in this context and referred to in his report dated 3 August 2013. 

12.During the relationship the wife provided the majority of care for the children. She also worked full time in the parties’ business.

13.After the parties separated in November/December 2011, the husband remained living in the home and continued to pay the mortgage repayments and other outgoings on the home, and he has continued to make those payments to date. Since separation, the wife has lived in a refuge for about 3 months with the daughter, lived at a friend’s home for about a year, and then moved to rented accommodation which has continued to date. The daughter pays for the rent. The wife did not receive any formal child support or financial assistance from the husband post separation, however the husband did provide multiple cars to the parties’ son, paid for his toll notices and bought some clothes for the wife.

14.The Court accepts the evidence of the wife’s treating psychologist, Ms D, inter alia, that the wife suffers from a Panic Disorder and Major Depressive Disorder, and that presently the wife remains mentally unfit for employment. Accepting the evidence of Ms D, the wife has some prospect in the future of obtaining employment, subject to successful treatment of her conditions, as outlined by Ms D. The wife’s work background has been confined to her past work in the business, conducted with the husband during the relationship.

15.Since separation the wife’s only income has been Centrelink benefits.  Her parents would gift her monies for payment of day-to-day expenses such as electricity, gas and internet.  She asserted that she has borrowed $12,000 in varying amounts from her daughter and $5000 from another friend to assist her financially.  She asserts that these were loans.

16.The husband referred to the wife’s use of his Westpac MasterCard.  On the material before the Court, there is a lack of particularity in relation to this issue with the husband acknowledging that the wife pays the payments made with the card, albeit she has been repeatedly late in making such payments.  Whilst in his recent Financial Statement he states that this credit card is indebted to the sum of about $5,000, in his Affidavit the husband states that the card is still in credit for over $4,000.

17.At separation, the mortgage loan on the home was about $465,000. 

18.The wife gave oral evidence.  The Court does not propose to set out the entirety of her oral evidence.

19.The wife stated she is in receipt of a Newstart allowance. The wife asserted that she was exempted from having to find meaningful employment, through her GP and psychologist.

20.After one of the husband’s suicide attempts, the wife asked the husband why he attempted suicide.  The husband told the wife that it was business related issues.

21.The wife would like to obtain work.  However, she asserted that she was mentally quite disturbed and she could not do her own housecleaning.  She asserted that the parties’ son moved in with herself and their daughter two weeks ago.  She asserted that the parties’ daughter cares for her.  She asserted that she takes antidepressant medication.

22.The wife is a very good friend of Mr H.  She was not and is not in a relationship with him.

23.The wife asserted that when she left the home in 2011.  She asserted that there was a granny flat at the home at that time.  However she asserted that when she returned to the home three years post separation she observed a kitchen in the granny flat.

24.The wife’s friend operated a business which had a business name registered in the wife’s name.

25.The husband gave oral evidence.  The Court does not propose to set out the entirety of his oral evidence.

26.The husband asserted that the wife received $130,000 from Centrelink fraudulently and that he did not receive the benefit of any of those monies.  He then stated that it was possible that the wife had used some of these monies for the family but that he didn’t see it.

27.The husband asserted that the wife was the sole cause of his depression.  In this context, he asserted that the wife had been cheating (marital infidelities) behind his back.  The Court does not accept this evidence and refers to the causes of the husband’s mental health problems referred to in the psychiatric report of Dr J dated 15 June 2010, including financial stresses and relationship problems.  The Court does not accept the husband’s assertions that he had intentionally declined to inform Dr J that the wife had been cheating on him because he was embarrassed to so inform the doctor.

28.The husband asserted that the wife has retained his Motor Vehicle N registration number …, since about 2014. He had paid $2,500 for car insurance and over $1,000 registration, each per annum.  It was common ground that the car was now unregistered.  In closing submissions, the parties agreed to an order that this vehicle be collected by the husband from the wife within 28 days and that he retain ownership of the vehicle.  The parties agreed that the present value of this vehicle was $500.

29.The husband stated that he drives Motor Vehicle O owned by his new partner.  He stated that he has two cars at his disposal.

Legal principles: property

30.In Trebiano & Trebiano [2018] FamCA 344 Foster J stated:

“The approach to the determination of an application under s 79 of the Family Law Act 1975 (Cth) (“the Act”) is set out in Stanford v Stanford [2012] HCA 52 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman [2014] FamCAFC 91 and Scott & Danton [2014] FamCAFC 203.

The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.

Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.

There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4).

The Court in the application of s 79(2) of the Act needs to conclude that it would be unjust or unfair to leave the parties’ property rights intact.

In Chancellor & McCoy [2016] FamCAFC 256 the Full Court said:

In adopting the approach she did, her Honour proceeded in accordance with what the Full Court said in both Bevan and Chapman, namely that it is open to a trial judge to take into account the matters stated in s 79(4) (or s 90SM) of the Family Law Act 1975 (Cth) (“the Act”) when determining whether it is “just and equitable” to adjust existing property interests. However, consistent with Stanford, her Honour also recognised that it was not open to her to decide that issue merely by reference to those matters.

In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.

In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the wife seeks an order for adjustment of property as does the husband.

It would, in some circumstances, be unjust or unfair to leave property rights intact where there is common ownership and discrete assets are sought by each. Such is the case in this matter and the parties both agree that their common ownership of property is to be brought to an end so as to reflect their respective contentions as to entitlement.

It is appropriate that property adjustment orders be made.

Otherwise, a consideration of s 79(4) factors as discussed below reveals it would be unjust or unfair to leave the parties’ property rights as they are.

Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g), in particular, the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant: (s 79(4)(e)).

The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell [1999] FamCA 1875; (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.”

31.The parties agreed balance sheet was as follows:

Ownership		Description	Wife / de facto partner’s value	Husband / de facto partner’s value
ASSETS
1.	J	A Street, Town B	1,075,000	1,075,000
2.	W	NAB a/c …	50	50
3.	W	Household contents	1,000	1,000
4.	H	CBA cash	2,000	2,000
5.	H	Business –K Pty Ltd	80,000	80,000
6.	H	Household contents	5,000	5,000
7.	W or H	Motor vehicle N	500	500

Total 1,163,550 1,163,550

SUPERANNUATION
8.	H	Super Fund P	336	336

Total 336                 336

LIABILITIES
9.	J	Mortgage on Town B home	461,809	461,809

Total 461,809 461,809

ADDBACKS
Ownership		Description	Wife / de facto partner’s value	Husband / de facto partner’s value
10.	H	Husband’s legal costs paid	14,051	14,051

Total 14,051 14,051

32.From the above, it can be seen that the parties’ net non-superannuation assets, plus the agreed addback for legal fees of $14,051, is $715,792. The total of net non-superannuation assets plus superannuation of the husband ($336) is $716,128.

Section 79 (2) of the Act

33.The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of their property, and the fact that the continuance of the current legal ownership of their property would not afford them justice and equity. 

Contributions

34.The parties’ relationship was for about 20 years.

35.During the parties’ relationship, both parties made approximately equal contributions towards the partnership business L Pty Ltd.

36.As to the purchase of the home in about 2005 for $560,000, the parties borrowed about $400,000, and utilised their savings for the balance of purchase price. The mortgage loan repayments and outgoings on the home were met from profits in the partnership business.

37.The Court takes into account the husband’s payment of outgoings for the Motor Vehicle N, now agreed to be valued at $500, since about 2014, after which time the wife had possession of it.

38.Since separation, the Court takes into account that the husband has solely operated and maintained the business K Pty Ltd, and more recently L Pty Ltd.

39.Since separation, the Court takes into account that the husband has made the payments on the mortgage loan to the home and its other outgoings, whilst the Court takes into account that the husband has had sole occupation of the home since separation, with the wife having to rent accommodation with financial assistance from the parties’ daughter.

40.The Court observes that post separation, and in about 2017, the husband caused the home’s granny flat to be extended to include a kitchen, and caused landscaping be carried out at the home, whilst noting that he utilised a significant part of $165,000 drawn down on the mortgage loan on the home for this purpose. He also utilised a lesser sum of this drawdown to contribute towards the car sale. The Court takes into account in this context, the valuation report for the home, exhibit H, which refers to positive aspects of the granny flat (“studio accommodation”) with potential buyers.  Unlike the sewer line issue which the valuer states has had an impact on market value, the valuer makes no similar comment in relation to the studio accommodation.  The Court also refers to the copy photographs of the renovation work in exhibit G. 

41.During the parties’ relationship the wife’s contributions as a parent and homemaker were superior to those of the husband. And her parenting contributions in relation to the parties’ son post separation were clearly superior. 

42.Further, the wife contends that her contributions as a parent and homemaker were made more arduous by reason of the husband’s family violence perpetrated against her and towards the parties’ son during the relationship.  In this context, the wife refers to the decision in Kennon & Kennon (1997) FLC 92-757.

43.The father rejected the wife’s Kennon contention, and submitted that the wife’s evidence in this context did not meet the necessary threshold established in Kennon’s case. 

44.The Court refers to relevant legal principle in relation to the Kennon contention.  The decision in Kennon & Kennon (1997) FLC 92-757 was discussed in the recent decision of the Full Court of the Family Court of Australia in Keating & Keating [2019] FamCAFC 46. At paragraph 35 and following in Keating the Full Court stated:

35. Turning then to Kennon, the rationale for a contributions adjustment as a consequence of family violence was explained by Fogarty and Lindenmayer JJ at 84,294:

Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s.79. We prefer this approach to the concept of “negative contributions” which is sometimes referred to in this discussion.

And at 84,294 – 84,295:

It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party.  It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions).

(Emphasis added)

45.The Court is persuaded that the mother’s parenting and homemaker contributions were made significantly more arduous than they ought to have been and that her Kennon contention in this context is such that it falls within “the relatively narrow band of cases” to which the Kennon principles apply.

46.Again, the Court refers to the wife’s evidence in relation to family violence against herself and the parties’ son. There was no significant cross examination of the wife in relation to family violence.

47.The wife experienced family violence from the husband early on in the marriage. It began to escalate to about twice a week. There was significant physical violence and verbal abuse perpetrated upon the wife and their son. The wife gives as an example of family violence the husband coming up from behind her when she was doing the usual cleaning duties and striking her on the head resulting in the wife suffering disorientation and blackouts.  The wife states that for most of the marriage she slept in a separate room from the husband as she was fearful for her life. The Court places significant weight on this fearfulness of the wife in this Kennon context.  She states that she slept in the parties’ daughter’s bed, and the husband still came into the room and try and attack her.  The wife refers to being assaulted by the husband for trying to physically defend the parties’ son from physical violence at the hands of the husband.  The wife refers to a number of family violence incidents being reported to the police from about 2009.  The wife had no family in Australia to turn to in relation to this family violence.  The parties’ son experienced mental health issues as a result of the family violence perpetrated upon him by the husband, and the wife was solely responsible to taking this child to see child psychologists. 

48.The husband contended that his contributions should be assessed at 50%. 

49.The wife contended that her contributions should be assessed at 60% as at trial date.

50.Taking into account the above matters, and viewing the parties’ overall contributions holistically, the Court assesses the parties’ contributions as at trial date to be 55% to the wife and 45% to the husband. That results in a disparity of about $71,613 in favour of the wife.

Section 75(2)

51.The wife is aged 45 years, and the husband is aged 50 years.

52.The husband appears to be in reasonable health. The husband has historically experienced significant mental health issues, however there is no contemporary health professional evidence relating to his mental health.

53.The husband continues to operate a business, and he is in a new relationship. He has a child aged 2 years from that new relationship and his new partner is pregnant again. 

54.The husband obtains certain financial advantages by claiming what might otherwise be personal expenses as business expenses through the business.

55.The wife suffers from Panic Disorder and Major Depressive Disorder. She is presently not mentally fit for employment. However, prospectively, should she continue to ingest anti-depressant medication and have cognitive behavioural therapy, with symptomatic and behavioural improvements as referred to in the evidence of her treating psychologist, Ms D, there is some prospect that the wife may be able to return to some form of employment. However, the Court would observe, in relation to prospective employment, that the wife’s past work has been confined to the car sale business. The Court accepts the evidence of Ms D. The brief report of Dr E lacks particularity (eg, in relation to an asserted PTSD), and no significant weight is placed on that report.

56.The wife presently obtains a Newstart allowance. She has an exemption from having to find employment. Should the wife have continued medical support for a continued exemption she may progress to a disability pension (see exhibit F) with increased benefits. The parties’ daughter presently pays rent on behalf of the wife.

57.The Court would assess that presently the husband has a superior earning capacity to that of the wife. 

58.The wife contends that the husband has failed to adequately disclose the financial circumstances relating to his relationship with his new partner.

59.The husband had disclosed in his recent Financial Statement that his new partner, age 33 years, was earning an average of $900 per week. In oral evidence he stated that he did not have access to that money earned by  his new partner. In his Affidavit he stated that she is financially independent, although shortly, as she is 7 months pregnant, she will be dependent upon him. He refers to his new partner’s name being included in the (changed) business name (ie K Pty Ltd). He asserted in his recent Financial Statement that his total weekly personal expenditure of about $803 was paid for the benefit of not only himself, but also his new partner and new son. The husband has the use of his new partner’s motor vehicle, a Motor Vehicle O. He states that he has 2 cars at his disposal.

60.In oral evidence he stated that every time he talked with his new partner about disclosing her financial circumstances to this Court, his new partner became unwell because she was pregnant. This oral evidence, which the Court accepts, is relevant in relation to the wife’s contention that a Jones & Dunkel inference should be drawn in relation to the husband not having filed and served an Affidavit from his new partner (the Court declines to draw such an inference).

61.Whilst Part F of the husband’s recent Financial Statement contained no entries, noting that the husband stated in his oral evidence that the business pays significant expenses on his behalf, there is no significant evidence relating to his new partner actually working in this business.

62.The husband was cross-examined in relation to certain bank accounts in the joint names of the husband’s new partner and himself (eg a business transaction account “Abresch & M Pty Ltd trading as K Pty Ltd”). The husband stated in oral evidence, on several occasions, that he had provided details of these bank accounts to the wife’s side previously. 

63.The Court notes that at the conciliation conference on 15 February 2018, the Registrar noted the disclosure of one such bank account by the husband being account number ending …, which the husband agreed in oral evidence was a joint bank account with his new partner being a CBA Smart access account.

64.On 31 July 2018, this Court made an order that within 28 days the husband provide full financial disclosure as set out in a letter dated 25 July 2018 from the wife’s solicitors to the husband’s solicitors. 

65.On 5 September 2018 the wife had filed an Application in a Case relating to alleged financial non-disclosure by the husband.  It would appear that no relevant orders were made in relation to that Application in a Case thereafter. 

66.The Court also observes that on 15 November 2018 it directed the husband to respond in detail to the contentions made by the wife in her solicitor’s Case Outline dated 14 November 2018, which was said to supplement and explain the wife’s contentions of non-disclosure by the husband in her solicitor’s letter of 24 August 2018. It would appear that there were no relevant orders made in that context thereafter. 

67.On 18 December 2018 the Court observes that a costs order was made in the wife’s favour in relation to the wife’s Application in a Case filed 27 July 2018, but no other orders or directions were made relating to financial disclosure. 

68.On 17 January 2019 property proceedings were listed for final hearing.  The Court also refers to the parties’ consent orders relating, inter alia, to the husband’s production of documents, and dated 8 November 2019. 

69.On 8 November 2019, consent orders were made relating to, inter alia, the husband’s production of subpoenaed documents, those orders stating, inter alia, that the husband has produced documents in response to the subpoenae to him dated 19 July 2019, with the production on or about 6 November 2019, with the wife reserving the right to submit that full production has not been made.

70.The Court observes that a subpoena served upon the husband’s new partner, to produce documents, was ultimately not sought to be enforced against that person, there having apparently been no production of documents to the Court by that person, with an Application in a Case having being filed by the wife on 15 November 2019.

71.The husband was cross-examined in relation to an apparent application by the husband to Westpac for a credit card or cards, in August 2019.  The husband could not recall the precise details of the financial information recorded in the “unsecured lending Origination” document.  Whilst the financial information appearing in this document is prima facie at odds with the husband’s entries in his recent Financial Statement, the Court is not satisfied on the balance of probabilities that such financial information in fact indicates the husband’s personal present or recent financial position.

72.In Exhibit ‘I’, the wife tendered a copy of one bank statement from a business transaction account in the name of the husband and his new partner (CBA account …).  The Court notes that this was a business transaction for the business.  In this context, the Court also refers to the copy financial statements of this business attached to the husband’s trial affidavit.

73.The Court accepts the oral evidence of the husband in respect to alleged financial non-disclosure. 

74.Having regard, in particular, to the husband’s oral evidence (referred to immediately above), the financial information provided by the husband in his trial Affidavit, his recent Financial Statement, the exhibited documentary material in evidence, and the contents of the Court’s discussion above relating to the interlocutory proceedings in this Court relating to alleged financial non-disclosure by the husband, the Court is not satisfied that there has been material financial non-disclosure by the husband in relation to the financial circumstances relating to his relationship with his new partner.

75.The wife contended for an adjustment of 10%, thereby resulting in an adjusted contributions assessment finding of 70%. 

76.The husband contended that there should be no adjustment under section 75(2).

77.Taking into account the above matters, there should be an adjustment in favour of the wife of 7.5%. This results in an adjusted contributions finding of 62.5% in favour of the wife and 37.5% in favour of the husband.

Justice and equity

78.Pursuant to the Court’s adjusted contribution assessment, the husband should be left with assets representing in value, 37.5% of the net assets, $268,548 (37.5% of $716,128) less the addback of $14,051, being net $254,497. 

79.Pursuant to the Court’s adjusted contribution assessment, the wife should be left with assets representing, in value, 62.5% of the net assets, $447,580 (62.5% of $716,128).

80.This results in a disparity in favour of the wife of $193,083.

81.Should the husband retain:

- the home, net $613,191

- cash: $2,000

- the business: $80,000

- the motor vehicle to be collected by him from the wife: $500

- household contents: $5,000

- superannuation: $336

less the addback, $14,051, leaving net $686,976,

then he will be required to make a cash payment to the wife of $446,530 ($447,580 less her retained assets of $1,050).

86. The above sum of $446,530 payable to the wife, together with the wife retaining:

- cash: $50

- household contents: $1,000

would leave her with $447,580, being her 62.5% of the net assets.

82.The husband should be given 8 weeks to pay the wife $446,530 in return for the transfer of the wife’s interest in the home. Otherwise, the home should be sold.

83.In the event that the home is sold, then the net proceeds of sale of the property, shall be divided between the parties as to 62.5% to the wife, together with a cash payment to her of $63,285 (see the paragraph immediately below), with the balance remaining to the father.

84.The Court now summarises its calculations relating to the above sum of $63,285.  Assuming that the parties shall each retain the assets presently in their respective names, then the husband should pay the wife additionally a cash sum of $63,285. In relation to the net assets in the final balance sheet, apart from the home and associated mortgage debt, including the add back of $14,051 (assets totalling $102,937), the wife should at the outset receive 62.5% of $102,937, being $64,335. Because she already holds net $1,050, she should receive a payment of $63,285.

85.The husband, if he can retain the home, will be able to live in the home with his new family. If not, he can utilise the cash he receives pursuant to the Orders to obtain suitable housing accommodation. Similarly, the wife can utilise the cash she receives pursuant to the Court’s Orders to obtain suitable housing accommodation. 

86.The husband will be left with modest liabilities which did not enter the balance sheet (see his recent Financial Statement). The wife will be left with certain liabilities which did not enter the balance sheet (see her recent Financial Statement).

87.The Court is of the view that its proposed property adjustment Orders will represent a just and equitable property settlement between the parties.

I certify that the preceding eighty seven (87) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date:  9 December 2019