Arrighi & Kirch
[2025] FedCFamC1F 145
•17 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Arrighi & Kirch [2025] FedCFamC1F 145
File number(s): SYC 138 of 2020 Judgment of: KARI J Date of judgment: 17 March 2025 Catchwords: FAMILY LAW – PROPERTY – Where the parties’ relationship was 11 years in length – Whether various addbacks should be included in the property pool – Where the de facto husband made greater contributions than those of the de facto wife –– Where the children of the relationship live with the de facto wife – Where there is an income disparity between the parties – Where the Court considers there should be an adjustment in favour of the de facto wife pursuant to s 90SM(3) – Two pool approach – Where the Court makes final orders for property settlement to effect a 52 percent division in favour of the de facto husband Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 90SM, 90SF, Pt VIIIAB
Cases cited: Bevan & Bevan (2013) FLC 93–545
Chorn & Hopkins (2004) FLC 93-204
Dickons & Dickons (2012) 50 Fam LR 244
Hickey & Attorney-General (Intervener) (2003) FLC 93-143
Jabour & Jabour (2019) FLC 93-898
La Costa & La Costa (2007) 38 Fam LR 412
Stanford & Stanford (2012) 247 CLR 108
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Trevi & Trevi (2018) FLC 93-858
Division: Division 1 First Instance Number of paragraphs: 136 Date of last submission/s: 4 December 2024 Date of hearing: 3-4 June 2024, 11 October 2024 Place: Sydney Counsel for the Applicant: Mr Rosic Solicitor for the Applicant: Biddulph & Salenger Counsel for the Respondent: Ms Abdelraheem Solicitor for the Respondent: Griffiths Family Law ORDERS
SYC 138 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ARRIGHI
Applicant
AND: MS KIRCH
Respondent
ORDER MADE BY:
KARI J
DATE OF ORDER:
17 MARCH 2025
THE COURT ORDERS THAT:
1.Within 60 days of these orders (“the Due Date”) the Applicant do pay the Respondent $745,069 (SEVEN HUNDRED AND FORTY FIVE THOUSAND AND SIXTY NINE DOLLARS) (“the Principal Sum”).
2.If the Applicant does not pay the Principal Sum to the Respondent in compliance with Order 1 herein, the Applicant do all acts and things and execute all documents necessary to list the property situated at and known as B Street, Suburb C in New South Wales, being the whole of the property contained in Folio Identifier … (“the Suburb C property”) as follows:
(a)The Applicant instruct his representative (such representative being a solicitor or licensed conveyancer) to do all acts and things necessary to give effect to the listing of the Suburb C property for sale via the PEXA electronic conveyancing platform;
(b)In the event that the Applicant is self-represented at any time, that he nevertheless instruct a solicitor or licensed conveyancer who subscribes to PEXA for the purpose of giving effect to the sale of the Suburb C property and will meet his own costs of the solicitor or conveyancer instructed by him;
(c)The Applicant appoint a local real estate agent within 14 days of the Due Date (“the agent”);
(d)The listing price for the sale of the Suburb C property be no less than $2,000,000 or such other amount agreed between the Applicant and the Respondent;
(e)If the Suburb C property fails to sell by private treaty within 8 weeks from the date the Suburb C property is first listed for sale, the Applicant shall do all acts and things to list the Suburb C property for sale by public auction, the reserve price for the auction to be no less than $1,900,000;
(f)If the bidding at the auction does not reach the reserve price, the Applicant may negotiate with the highest bidders or any other interested person and effect a sale of the Suburb C property at a price which is not more than 5 per cent below the reserve price;
(g)If the property remains unsold, the Applicant shall do all acts and things and sign all documents necessary to immediately relist the property for sale by public auction again on a date nominated by the agent and at a reserve price as recommended by the agent;
(h)The Applicant shall cooperate in every way with the agent including (without limiting the generality of the foregoing):
(i)Making the key or other means of accessing the property available to the agent;
(ii)Signing all documents requested by the agent to sell the Suburb C property;
(iii)Executing a contract of sale in the form prepared by the solicitors having the conduct of the sale at the sale price;
(iv)Allowing inspection of the Suburb C property at all times as requested by the agent;
(v)Doing all necessary repairs or improvements as recommended by the agent;
(vi)Ensuring the Suburb C property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and
(vii)Doing or saying nothing to hinder or prevent a sale being effected.
3.On settlement of the sale of the Suburb C property, the Applicant do all acts and things to cause the proceeds of sale to be distributed in the following manner and priority:
(a)All costs and agree expenses of the sale including legal costs and disbursements, agent’s commission, advertising expenses (including reimbursement of advertising expenses paid by the parties or either of them prior to settlement) and auction expenses;
(b)The amounts required to pay all municipal and water rates outstanding with respect to the Suburb C property where such amounts are not covered by the settlement adjustments;
(c)To discharge the loans secured by mortgage over the Suburb C property; and
(d)The remaining balance be divided as to:
(i)Payment of the Principal Sum (together with interest in accordance with Rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, from the due date until the date of payment) to the Respondent; and
(ii)The remaining balance to the Applicant.
4.In the event that the Suburb C property sells at a sale price other than $2,000,000, the quantum of the principal sum provided for in Order 1 and 3(d)(i) herein shall become:
Sale Price of the [Suburb C] property = X
Net Value of non-superannuation property excluding the [Suburb C] property ($1,574,771 - $2,000,000) = Y
X + Y = A
A x 0.48 = B
B - $10,821 = Principal Sum
5.That in accordance with Section 90XT(4) of the Family Law Act 1975, a base amount of $217,649 is allocated to Ms Kirch out of the Mr Arrighi’s interest, member number …, in Super Fund 1.
6.That, in accordance with Section 90XT(1)(a) of the Family Law Act 1975:
(a)Ms Kirch is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b)the entitlement of Mr Arrighi in Super Fund 1 is correspondingly reduced by force of this Order.
7.That the trustee of Super Fund 1 (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement awarded to Ms Kirch in the immediately preceding clause of this Order; and
(b)pay the entitlement whenever the Trustee makes a splittable payment from the interest of Mr Arrighi in Super Fund 1.
8.That this Order has effect from the operative time and the operative time is the fourth business day following the date of service od these Orders on the Trustee.
9.That, after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“the SIS Regulations”), Ms Kirch shall forthwith do all such things and sign all such documents as may be necessary, including but not limited to exercising her request in accordance with the SIS Regulations, for the rollover or transfer of the non-member de facto partner interest to a complying superannuation fund of Ms Kirch’s choosing in accordance with the SIS Regulations.
10.That the Court notes:
(a)the value of the non-member de facto partner’s interest is calculated in accordance with the SIS Regulations; and
(b)any payments from Mr Arrighi’s superannuation interest in Super Fund 1 made after the trustee has created a new interest in Ms Kirch’s name in Super Fund 1 are not splittable payments in accordance with Division 2.2 of the Family Law (Superannuation) Regulations 2001.
11.Subject to these Orders, as against the Applicant, the Respondent is solely entitled to and the Applicant has no interest in:
(a)Funds in the Respondent’s bank account/s in her sole name or in her name jointly with any person other than the Applicant;
(b)The Respondent’s personal possessions, household contents and jewellery;
(c)The Respondent's motor vehicle;
(d)The Respondent's superannuation; and
(e)All other assets or financial resources of the Respondent.
12.Subject to these Orders, as against the Respondent, the Applicant is solely entitled to and the Respondent has no interest in:
(a)Subject to the Applicant’s obligation to pay the Principal Sum to the Respondent, the Suburb C property;
(b)Subject to the Applicant’s obligation to pay the Principal Sum to the Respondent, funds in the Applicant’s bank account/s in his sole name or in his name jointly with any person other than the Respondent;
(c)The Applicant’s personal possessions, household contents and tools;
(d)Subject to the superannuation split in these Orders, the Applicant's superannuation; and
(e)All other assets or financial resources of the Applicant.
13.Except where these Orders specify otherwise:
(a)The Respondent hereby indemnifies the Applicant from and in respect of all actions, claims, suits and demands as may be made against the Applicant in relation to all liabilities in the name of the Respondent, including any credit card debts; and
(b)The Applicant hereby indemnifies the Respondent from and in respect of all actions, claims, suits and demands as may be made against the Respondent in relation to all liabilities in the name of the Applicant, including any credit card debts.
14.Except where these Orders specify otherwise, each of the parties releases the other from all debts owing from one to the other.
15.Both parties shall promptly do all acts and things and execute all documents, authorities and writing as are necessary to give effect to all or any of the provisions of these Orders.
16.Liberty to either party to apply as to consequential orders.
17.The proceedings are otherwise dismissed as finalised.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Arrighi & Kirch has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J:
INTRODUCTION
These are financial proceedings arising from the breakdown of the parties’ 11 year de facto relationship.
The parties are largely agreed that the property that is to be divided between them comprises non-superannuation assets totalling $1,531,790 and superannuation assets totalling $532,885. The parties however are in dispute about whether there should be an adjustment to the tangible assets that exist between them so as to notionally enlarge the property for division by adding-back certain funds.
The parties are otherwise in dispute as to the manner in which their property should be divided; with the de facto husband seeking a 55 per cent division in his favour and the de facto wife seeking a 55 per cent division in her favour.
However, this was not always the adjustment that had been sought by the de facto wife. Rather, at the commencement of the trial and indeed by her Case Outline filed 1 June 2024 and her Further Amended Response filed 2 December 2023 the de facto wife sought an 80 per cent adjustment in her favour. It was not until closing submissions that counsel for the de facto wife revealed a dramatically changed position; proposing that the adjustment between the parties be a more modest 55 per cent adjustment in favour of the de facto wife.
Unsurprisingly, this late revelation of a changed position by the de facto wife caused some ire and comment from the de facto husband’s counsel.
I comment that, in light of the findings that I have made throughout these reasons (many in part from concessions made by the de facto wife during her oral evidence), the initial adjustment sought by the de facto wife was entirely unrealistic and optimistic and quite possibly led to unnecessary litigation between these parties.
Whilst it is difficult to be precise, because the parties engaged in litigation over the parenting arrangements for the children, their costs in these proceedings would have likely been impacted by the misconceived financial relief pursued by the de facto wife until the eleventh hour; which with reference to the most recently filed Costs Notices of the parties, the de facto wife’s legal costs are approximately $152,288 ($132,288 of which remained unpaid) and the de facto husband’s legal costs are $212,903 (of which only $120,125 appears to have been paid).
For the reasons that follow orders shall be made effecting a 52/48 division between the parties, in favour of the de facto husband.
SHORT HISTORY
The applicant de facto husband was born in 1977 and he was 47 years of age at the commencement of the trial. Throughout the relationship and ongoing he has worked as a technical professional, and he is presently earning no less than approximately $160,000 per annum.
The respondent de facto wife was born in 1976 and at the commencement of the trial she was 47 years of age. She is currently unemployed.
There are two children of the relationship, namely:
(a)X, born 2019, and aged 15 at the time of trial; and
(b)Y, born 2012, and aged 12 at the time of trial
(“the children”).
The parties commenced cohabitation in mid-2007, when the de facto husband joined the de facto wife and her two, then minor children from a previous relationship (Mr D and Mr E) in living in a mobile home in Suburb F, owned by the de facto husband’s father. The de facto wife and her children had moved into the mobile home in mid-2007 when the de facto husband’s father had vacated it to move elsewhere.
In approximately late 2008 the former relationship home at Suburb C was purchased. During the final hearing, the de facto wife acknowledged the assertions that had been made by the de facto husband in his trial material, that he solely provided the initial funds to purchase the Suburb C property and that the balance of funds were provided by loan borrowings.
The parties lived in the Suburb C property for the remainder of their relationship, before separating on 24 July 2018. At the time of separation, the de facto husband moved into the “[separate dwelling]” at the rear of the Suburb C property, with the de facto wife and all four children living in the main home.
Whilst there is no need to make findings, and I do not do so, it appears that there were escalating tensions between the de facto husband and de facto wife which were brought on by a breakdown in the relationship between the de facto husband and the de facto wife’s child, Mr D. The breakdown of the de facto husband and Mr D’s relationship includes allegations of physical aggression directed to both the de facto husband and de facto wife, and the parties’ children, X and Y.
In February 2020 the de facto husband vacated the separate dwelling and began living with his mother nearby. He did so as a direct consequence of orders made in these proceedings on 4 February 2020.
In late 2020, the de facto husband was charged with a criminal offence arising from allegations that he had incited the parties’ child Y to sexually touch him. These charges proceeded to trial in the Local Court of New South Wales in early 2022, with the de facto husband being acquitted of all charges in early 2022. As a consequence of these charges, however, in late 2020 an Apprehended Domestic Violence Order (“ADVO”) was issued naming the de facto husband as the defendant and the children as protected persons. This ADVO has now expired.
As a result of the father’s bail conditions arising from these charges, he was unable to live in an area proximate to the Suburb C property. Accordingly, between late 2020 and early 2022 he lived between relatives for a short period of time and otherwise in rental accommodation in Suburb W.
The de facto wife and all four children (those of the relationship and her two older children) lived in the Suburb C property from the date of separation until early 2023, when she and all four children relocated to live in Queensland at an undisclosed address.
Thereafter, and from approximately mid-2023 the de facto husband returned to live in the Suburb C property and he continued to do so at the time of trial.
On relocating to Queensland, the mother obtained a further Protection Order in the Magistrate Court in late 2023, with the consent of the de facto husband but without his admission. This Protection Order expires in late 2028 and therefore continues to be in force.
HISTORY OF THE LITIGATION
The de facto husband initiated proceedings on 10 January 2020 in the Federal Circuit Court of Australia (as it was then known) seeking orders relating to both property settlement and parenting arrangements.
Parenting Proceedings
It is not relevant to the current proceedings to traverse the details of the parenting aspect of the proceedings. Instead, I shall set out the relevant details in a summary way. I record, however, from the outset that it is clear from the evidence of the parties in the trial that the parenting proceedings, as with the financial proceedings, were highly acrimonious; no doubt significantly fuelled by the very serious allegations of the de facto husband’s sexual impropriety towards the parties’ child Y, which he has vehemently denied and for which he was acquitted.
The children have been in the sole care of the de facto wife and have spent no time with the de facto husband since at least late 2020.
To the parties’ credit, the parenting proceedings were resolved with orders made by consent by a judicial registrar on 9 April 2024, following a Family Dispute Resolution Conference on 4 April 2024. In summary those orders provide for:
(a)The de facto wife to have sole parental responsibility for the children;
(b)The children to live with the de facto wife;
(c)The children to spend no time and have no communication with the de facto husband other than in accordance with their wishes;
(d)Injunctive orders and restraints directed to the de facto husband, for the personal protection of the de facto wife;
(e)Orders permitting the de facto wife to obtain passports and travel with the children; and
(f)Orders relating to the ongoing counselling of the mother and the children.
Financial Proceedings
The first hearing in these proceedings took place on 4 February 2020. At that time orders directed to the financial proceedings were made which restrained the de facto husband from borrowing, mortgaging, refinancing or extending any further debt or encumbrance on the Suburb C property. In addition, as earlier identified, an order was made restraining the de facto husband from entering the main house at the Suburb C property, where the de facto wife and the children were residing at the time.
On 25 June 2020 the de facto wife filed an Application in a Case in which she sought orders (incompetently crafted in circumstances where the Suburb C property was not identified in the orders sought) providing for the Suburb C property to be placed on the market for sale, and the proceeds of sale to be equally divided between the parties. The de facto husband opposed this application. By his Response filed 22 July 2020 the de facto husband sought orders for the de facto wife to vacate the Suburb C property and that he have sole use and occupation of the same. The de facto husband additionally pursued parenting orders. These competing applications were given a hearing date of 27 July 2020.
At the hearing on 27 July 2020, and instead of dealing with the parties’ competing interlocutory applications, the Federal Circuit Court Judge transferred the proceedings to the Family Court of Australia (as it was then known).
Thereafter, it does not appear from the court file that the parties’ competing interlocutory applications were ever dealt with, at least so far as they related to the financial proceedings.
On 3 June 2022 the proceedings were referred to the pool of matters awaiting a first day hearing; at which procedural orders would ordinarily be made to list the proceedings for final hearing.
While the parties were waiting for a first day hearing to be allocated, on 22 July 2022 the de facto husband filed an Application in a Proceeding in which amongst other things he sought orders providing for a departure from the administrative assessment of child support for the children and the payment of the expenses and outgoings for the Suburb C property. This application was given a hearing date of 12 October 2022 pursuant to orders made 10 August 2022.
At the hearing on 12 October 2022, a Senior Judicial Registrar made orders by consent and at the mutual request of the parties which provided for:
(a)A departure from the administrative assessment of child support for the children X and Y, to the effect that the de facto husband was not required to make any child support payments.
(b)So far as the expenses for the Suburb C property were concerned:
(i)The de facto husband was to pay the mortgage instalments, council rates, water rates, and home and contents insurance premiums.
(ii)The de facto wife was to pay the electricity and gas rates, with each of those accounts to be transferred into her sole name.
(iii)The de facto husband was to make a periodic payment to the de facto wife of $250 each month as a contribution towards the electricity rates for the property, together with a payment of $75 each month as a contribution towards the gas rates for the property.
(c)An order was made discharging the order restraining the de facto husband from entering the Suburb C property, and replacing it with an order that the de facto wife remain in the property until early 2023, on the basis that she keep the property in “good order and repair” and that she “must not dispose of or damage” the de facto husband’s “possessions that remain in the [Suburb C] property”.
(d)An order was made granting the de facto husband exclusive occupation of the Suburb C property as and from early 2023.
Of some significance, for present purposes, is that the de facto husband at that time had also sought a discharge of the injunctions that had been made on 4 February 2020 restraining him from borrowing, mortgaging, refinancing or extending any further debt or encumbrance on the Suburb C property. This order however was not made on 12 October 2022. The notations to the orders made that day record that the Court had declined to make that order (Notation A).
On 11 November 2022 orders were made by a senior judicial registrar for the parties to attend a Conciliation Conference in February 2023. On 7 December 2022 the Conciliation Conference was vacated and the parties were instead ordered to attend a property mediation with an accredited Family Dispute Resolution Practitioner as nominated by T Family Services on the same date that the Conciliation Conference was to have proceeded. It is not clear from the court file whether the mediation proceeded, however, I infer by the fact that the proceedings proceeded to trial, that if it did proceed, the parties were unable to reach an agreement.
The matter first came into my docket in approximately mid-April 2023. Following some case management hearings, orders were ultimately made on 25 August 2023 listing the proceedings for trial on 3 June 2024, in relation to both the parenting and the financial dispute.
On 2 December 2023 and as a consequence of the de facto husband significantly amending the parenting orders that he was seeking, the proceedings were called on for a number of case management hearings. Ultimately on 19 February 2024, orders were made directing the parties to participate in alternative dispute resolution. That process proved effective so far as the parenting proceedings were concerned, with orders being made by a judicial registrar, at the mutual request of the parties, resolving the parenting proceedings on 9 April 2024.
In all of these circumstances only the financial proceedings remained before the Court.
LEGAL PRINCIPLES
The jurisdiction of the Court to make orders with respect to the financial matters arising out of the breakdown of a marriage and the breakdown of a de facto relationship are similar and are contained in Part VIII and Part VIIIAB of the Family Law Act 1975 (Cth) (‘the Act’).
The legal principles relevant to adjusting property interests on the breakdown of a marriage were considered by the High Court in Stanford & Stanford (2012) 247 CLR 108 (“Stanford”).
In particular, the High Court identified:
(a)Firstly, that the Court must identify the existing legal and equitable interests of the parties in the property, liabilities and financial resources of the parties at the time of the hearing; and
(b)Secondly, and importantly, that in the application of s 79(2) of the Act (s 90SM(3) in the case of a de facto relationship), the Court must not make any order adjusting the parties’ legal and equitable interests in property unless the court is satisfied that “in all of the circumstances, it is just and equitable” to do so.
(c)If the Court determines that it would be just and equitable to make orders adjusting the parties’ interests in property, then s 79(4) of the Act (s 90SM(4) in the case of a de facto relationship) requires:
(i)The consideration of the contributions made by the parties to the acquisition, conservation and improvement of any property, both of a financial nature but also of non-financial nature;
(ii)The effect of any proposed orders on the earning capacity of each of the parties;
(iii)Those relevant factors set out in s 75(2) of the Act (s 90SF(3) in the case of a de facto relationship);
(iv)Any other order affecting each of the parties;
(v)Any child support either party has or is liable to provide, or might be liable to provide in the future for a child of the relationship; and
(vi)Finally, the court must consider the “justice and equity” of the actual orders to be made.
Prior to the decision in Stanford, the appropriate approach in a property settlement case was well settled and had been distilled into a ‘four step process’ as identified by the Full Court in Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 737-738 as follows:
(a)Identification of the value of the property of the parties;
(b)Identification and evaluation of the contributions of the parties to the acquisition, conservation and improvement of the property;
(c)Identification and assessment of the relevant future needs factors of the parties; and
(d)Considerations of justice and equity.
The significance of the decision in Stanford, with reference to the four step process, was discussed by the Full Court in Bevan & Bevan (2013) FLC 93–545 (‘Bevan’). In that decision, the Full Court identified (at [61]) that the four step process “merely illuminates the path to the ultimate approach,” but the overarching obligation of the Court is not to make an order unless it is just and equitable to do so.
In Stanford at [42], the High Court identified:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order…
Here, both parties have competing applications for property adjustment before the Court.
It is therefore just and equitable to make an order adjusting property between the parties.
The four step approach will otherwise be adopted.
THE EVIDENCE
The applicant de facto husband filed the following documents for the final hearing:
(a)His Outline of Case Document filed 31 May 2024;
(b)His trial affidavit filed 26 April 2024;
(c)His Amended Initiating Application filed 16 February 2024;
(d)An affidavit of his mother Ms H filed 26 April 2024;
(e)An affidavit of his brother Mr J filed 24 May 2024;
(f)His Financial Statement filed 26 April 2024; and
(g)His affidavit in reply filed 24 May 2024.
At the commencement of the trial, the Court was advised by the de facto husband’s counsel that the de facto husband did not rely on the affidavits filed by each Ms H or Mr J. These affidavits were not received into evidence and regard has not been had to them.
The respondent de facto wife filed the following documents for the final hearing:
(a)Her Outline of Case Document filed 1 June 2024;
(b)Her trial affidavit filed 10 May 2024;
(c)Her Further Amended Response to Initiating Application filed 2 December 2023;
(d)Her Financial Statement filed 31 May 2024; and
(e)An affidavit of her former husband Mr K filed 29 May 2025.
At the commencement of the trial, the de facto wife’s counsel informed the Court that the de facto wife no longer relied on the evidence of her former partner Mr K. This affidavit was not received into evidence and regard has not been had to it.
The consequence of the forensic decisions made by each of the parties at the commencement of the trial was that the only witnesses to give evidence in the proceedings were the parties themselves. Each of the affidavits that had been filed by the parties were the subject of objections, and rulings. The affidavits of the parties subject to the rulings on objections were those received into evidence.
In addition, the parties had obtained an expert valuation of the Suburb C property in early 2024. This valuation was filed on 31 May 2024, and was received into evidence. There was no challenge by either party to the opinion of this single expert. Accordingly, the valuation opinion is accepted and it is reflected in the schedule of assets and liabilities referred to throughout these reasons.
In addition, the proceedings were recalled on 4 December 2024 to deal with procedural fairness requirements arising from the superannuation splitting orders that had been proposed by the de facto husband. In accordance with orders made that day, the de facto husband filed a further affidavit on 19 December 2024. That affidavit was also before the Court.
So far as the evidence of the parties is concerned. I found the de facto husband to be a careful and considered historian, who gave his evidence without histrionics. Whilst clearly troubled with the circumstances he has encountered as a result of the breakdown of the de facto relationship, the subsequent allegations and criminal proceedings, these proceedings, and generally mourning the loss of his relationship with the children of the relationship, I generally did not have cause for concern over his evidence, and I largely accept his assertions relevant to the issues in dispute in the financial proceedings.
The de facto wife, however, was a more challenging witness. Her presentation was that of someone aggrieved and angry; perhaps unsurprising given the serious allegations she had made about the father’s inappropriate conduct. Importantly however, there were occasions throughout the de facto wife’s evidence where her factual assertions and various allegations relevant to the financial proceedings were the subject of challenge. The evidence she gave when challenged has led me to conclude that, in relation to certain topics, her evidence cannot be accepted. Where relevant I shall discuss these matters in more detail in the reasons which follow. However, I indicate at this juncture that I do not accept various accounts as deposed by the de facto wife, and instead I prefer the evidence of the de facto husband. Of significance, I prefer the de facto husband’s assertions about his contributions to the de facto wife’s older children, his financial contributions more generally, together with his assertions about his parenting and homemaking contributions more broadly.
In coming to these conclusions, and generally so far as my findings throughout these reasons are concerned, I indicate:
(a)That despite hearing the majority of the oral evidence of the parties in June 2024, I took detailed contemporaneous notes of their evidence, including notes as to their demeanour, and the impressions that I formed during their evidence. I have had regard to these notes, together with, where necessary, listening to the recording of the hearing in preparing these reasons.
(b)I have additionally had regard to all of the material before the Court for trial, whether referred to specifically, or not, in these reasons
(c)Certain historical facts have been identified throughout these reasons. Those recitations should be taken as findings of fact in circumstances where those facts appear to be uncontroversial. Where, however, findings are made taking into account the contested evidence, this has been identified.
(d)As these are civil proceedings, the standard of proof is “the balance of probabilities” (s 140 of the Evidence Act 1995 (Cth)). I have accordingly assessed the evidence in these proceedings and made findings throughout these reasons by applying this standard of proof.
THE EXISTING LEGAL AND EQUITABLE INTERESTS OF THE PARTIES
During the hearing the parties provided the Court with a joint balance sheet which was received into evidence and marked Exhibit “J1”.
With reference to the joint balance sheet, and noting that the parties agreed all items of tangible property on the balance sheet, together with their value, I find:
(a)The assets of the parties are:
Ownership Description Value H B Street, SUBURB C NSW $2,000,000 H L Bank Account - BSB … - Account Number …19 $1,435 H L Bank Account - BSB … - Account Number …79 $17,026 H L Bank Account - BSB … - Account Number …17 CLOSED H L Bank Account - BSB … - Account Number …88 CLOSED H L Bank Account - BSB … - Account Number …01 CLOSED W M Bank Account - BSB … - Account Number …16 $216 W M Bank Account - BSB … - Account Number …75 $450 W M Bank Account - BSB … - Account Number …25 $2 W M Bank Account - BSB … - Account Number …91 $309 W Westpac Account - BSB … - Account Number …39 $133 W Westpac Account – BSB … – Account Number …44 $369 W N Shares (1500 @ $ 0.00 as at 29/5/2024) NIL W O Shares (… @ $ … as at 29/5/2024) $1,242 H Household contents $1,500 E W Household contents $1,500 E W Motor Vehicle 1 $6,600 E H Offset account associated with Suburb C property L Bank …04 $96,000 E H ANZ bank account ending …99 $8 TOTAL $2,126,790 (b)The liabilities of the parties are:
Ownership Description Value H L Bank Loan
BSB … - Account Number …00$595,000
TOTAL $595,000 (c)The parties’ superannuation interests are:
Member Name of Fund Type of Interest Value H Super Fund 1 - Member Number … Cumulative $494,749 W Super Fund 2 - Account Number … Cumulative $35,611 W Super Fund 1 - Member Number … Cumulative $2,525 TOTAL $532,885
With reference to these schedules, I am satisfied that so far as the tangible assets of the parties are concerned:
(a)The net non-superannuation interests of the parties are $1,531,790 ($2,126,790 minus $595,000); and
(b)The net superannuation interests of the parties are $532,885.
ITEMS OF PROPERTY THE SUBJECT OF DISPUTE
Where the parties fell into disagreement, and where the Court is required to make a determination, is in relation to items of notional property which the wife contends be “added back”.
I set out the notional property as described in the joint balance sheet, presumably by the de facto wife as she is the person agitating the inclusion of almost all of the notional property. I comment that the information contained in the narrative descriptions of each item is somewhat confusing, largely because that narrative does not seem to appear in any sworn evidence that is before the Court. Be that as it may, I have done the best that I can to make sense of these issues.
ADDBACKS Ownership
Description
Applicant’s value
Respondent’s value
20
H
In early 2020, H negotiated a 6-month repayment pause on each home loan over the Suburb C property with the then mortgagee, P Financial Services(“P Financial Services”). During the 6-month repayment pause period, the outstanding balance on home loan …12 increased by $4,509.11, and the outstanding balance on home loan …13 increased by $4,418.69 (excluding an interest adjustment of $3,827.22) during the pause period. Being a combined increase of the outstanding balance of both home loans by $8,927.80.
NIL
$8,927
21
H
InNovember 2021, utilising an available drawdown facility, H further encumbered the Suburb C property by drawing down a further $9,273.50 on mortgage …12, and $5,707.58 on mortgage …13, being a total drawdown of $14,981.08.
NIL
$14,981
22
H
Additional funds borrowed by H when H refinanced Q Financial Services - Mortgage Account Numbers …12 and …13. Financial institution and account details (including statements) not disclosed. H has also failed to disclose documents pertaining to how he spent the additional funds.
NIL
$143,547
23
H
Payment to Applicant’s sister, Ms S
NIL
$8,250
24
H
Funds transferred from L Bank offset account BSB … Account Number …04 to another account and spent by Applicant (including $6,000 transferred to Ms S)
$26,171
$21,146
25
H
Additional funds with respect to L Bank refinance not deposited into offset account.
NIL
$14,375
TOTAL
$26,171
$211,226
Legal Principles – Notional property
It is well established that adding back notional property is the ‘exception rather than the rule’, and that the Court retains discretion whether or not to add back notional property and/or to treat any dissipated funds when considering the relevant s 75(2) factors (s 90SF(3) in the case of a de facto relationship), and in particular section 75(2)(o) (s 90SF(3)(r) in the case of a de facto relationship) (see Chorn & Hopkins (2004) FLC 93-204 (“Chorn & Hopkins”) and Trevi & Trevi (2018) FLC 93-858 (“Trevi”)).
However, as discussed by Murphy J in Trevi at [31], if funds that existed at separation have been applied to the payment of legal fees, then such amounts are likely to be favourably treated as notional property.
The question of adding back funds that have been applied by a party to their living expenses in the post-separation period was neatly encapsulated by the Full Court in Chorn & Hopkins at [24] and [46], as cited with approval by the Full Court in La Costa & La Costa (2007) 38 Fam LR 412 at [39]:
24.We will refer again later in these reasons to the decision in Townsend, but we would in the present context draw attention to the following observations by later Full Courts:
2.11There seems to be no appropriate basis for notionally adding back moneys that existed at separation but which have been subsequently spent on meeting reasonably incurred necessary living expenses. Neither the Family Law Act nor the case law require that parties go into a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements. Parties are entitled to continue to provide for their own support. Whether any expenditure so incurred is reasonable or extravagant is a matter that can be determined by the trial Judge. (Marker [1998] FamCA 42, 1 May 1998, per Baker, Kay and Chisholm JJ.)
…
46.Whilst not seeking to place a fetter upon the exercise of discretion of a trial judge in individual cases, it seems to us that the concept of adding monies reasonably disposed of back into the pool ought to be the exception rather than the rule. The parties are entitled to reasonably conduct their affairs post-separation in a manner that is consistent with properly getting on with their lives. (Cerini [1998] FamCA 143, 8 October 1998, per Nicholson CJ, Ellis, Kay JJ.)
Discussion
Background
So far as the contended addbacks are generally concerned, the Court understands that the dispute between the parties centres on the de facto husband’s post separation financial arrangements.
The de facto husband asserts that, in the post-separation period, he paid all of the outgoings for the Suburb C property. The de facto husband’s position is that he met all of these outgoings in lieu of the payment of child support, as agreed between the parties. He says, however, that in or about mid-2022 the de facto wife contacted the child support agency and sought that they begin collecting child support (Applicant de facto husband’s trial affidavit filed 26 April 2024, paragraph 16). In that regard:
(a)I accept the de facto husband’s assertions that the Child Support Agency began collecting child support from him as and from mid-2022 (Exhibit “H7”).
(b)I note the orders made by consent on 12 October 2022 by way of departure from the administrative assessment of child support which reduced to nil the child support to be paid by the de facto husband for the period 12 October 2022 until January 2023. I infer and find that this was done, because pursuant to those same orders the de facto husband agreed to continue to be responsible for the ongoing payment of significant outgoings for the Suburb C property, together with the payment of other expenses which would maintain the de facto wife and all of the children in the property, as he had done from the time of separation.
In light of these arrangements, I infer and accept the de facto husband’s assertions about his ongoing payment of all of the outgoings for the Suburb C property, together with a range of other expenses (referred to below) from the time of separation in July 2018 until he resumed living in the Suburb C property in January 2023. Specifically, I am satisfied that the de facto husband met the payment of mortgage repayments, water and utility rates and home and contents insurance and made contribution towards the electricity and gas rates.
In that regard, and in an attempt to understand not only the contributions made by the de facto husband in the post separation period, but importantly to try and make sense of the addbacks pursued by the de facto wife, to which the magnitude of expenses paid by the de facto husband in the post separation period is relevant, I accept the de facto husband’s unchallenged evidence and I find that over the post separation period:
(a)The de facto husband paid the following amounts in mortgage repayments:
(i)Between the period between 29 July 2018 to February 2020 (the date of separation until the date he vacated the Suburb C property), he made mortgage repayments totalling approximately $57,757 (Applicant de facto husband’s trial affidavit filed 26 April 2024, paragraph 96);
(ii)Between the period between February 2020 until January 2023 (the date that he vacated the Suburb C property until the date that he resumed living in the Suburb C property), he made mortgage repayments totalling approximately $94,633 (Applicant de facto husband’s trial affidavit filed 26 April 2024, paragraph 103).
(b)During the relationship and continuing in the post separation period, the de facto husband would use the L Bank credit card (as would the de facto wife) to meet the payment of various family expenses, (including but not limited to the payment of groceries and all of the utility rates for the Suburb C property (Applicant de facto husband’s trial affidavit filed 26 April 2024, paragraph 99)). The de facto husband asserts that he would pay off this credit card each month from his own funds. Whilst this evidence was unchallenged, I am in any event prepared to accept it because I accept the parties’ mutual evidence that they never shared a savings account and the de facto wife did not apply her separate monies to the payment of any joint periodic expenses (which for present purposes included paying of the L Bank credit card each month). To that end:
(i)Between the period 29 July 2018 to February 2020 an amount of approximately $16,212 was paid by the de facto husband to pay down the L Bank credit card liability (Applicant de facto husband’s trial affidavit filed 26 April 2024, paragraph 99); and
(ii)Between the period 4 February 2020 until July 2023, the de facto husband paid down the L Bank credit card liability in the amount of approximately $12,688 (Applicant de facto husband’s trial affidavit filed 26 April 2024, paragraph 105).
It is an agreed fact, and in any event I find that in approximately July 2023, and in the shadow of these proceedings and the injunction made 4 February 2020 (Order 10 made by consent on 4 February 2020) effectively restraining the de facto husband from increasing the indebtedness secured by the Suburb C property, the de facto husband unilaterally refinanced the borrowings on the Suburb C property and increased the borrowings secured by the property. In that regard:
(a)At the time that the de facto husband undertook the refinance in July 2023 I am satisfied that there were two separate loans secured by the Suburb C property.
(b)By her Outline of Case, the de facto wife asserted that the total borrowings secured by the two separate home loans was an amount of $451,452.31 (an amount almost identical to the amount deposed by the husband at paragraph 155 of his trial affidavit filed 26 April 2024), comprised as follows:
(i)A home loan with P Financial Services (account number …12) in the amount of $219,350.27; and
(ii)A home loan with P Financial Services(account number …13) in the amount of $232,102.04.
(c)Unfortunately, the Court did not receive into evidence the statements for the two P Financial Services loans immediately prior to the refinance. What was received were statements for each account up to approximately September 2022, which reflected the following balances:
(i)An amount of $225,558.72 on account number …12 (Exhibit “W2”); and
(ii)An amount of $238,141.17 on account number …13 (Exhibit “W1”).
(d)In the absence of having received into evidence the statements for the two P Financial Services Loans for the period July 2023, and noting firstly that the amounts identified in the de facto wife’s outline represent a reduction in the principal loan, and secondly where there is no complaint by the de facto wife that the de facto husband did not pay the mortgages between September 2022 and the refinance in July 2023, I am prepared to accept the figures identified in the de facto wife’s Case Outline for each of the two loans at the time of refinance in July 2023.
(e)When the refinance was effected, I am satisfied that the borrowings secured by the Suburb C property were subsumed into one loan with L Bank. The de facto husband’s unchallenged assertion in this regard is that the new loan was in the amount of $595,000.
(f)Having regard to all of these findings, I am satisfied that in July 2023 the de facto husband increased the total borrowings secured by the Suburb C property by approximately $143,547.
(g)The de facto husband asserts that the additional borrowings with L Bank were applied to the repayment of credit card debts and other debts, and that the balance thereafter remaining in the amount of approximately $97,000 remained in an L Bank account which acted as an offset account to the new L Bank loan created by the refinance.
(h)Having regard to the statements for the de facto husband’s L Bank offset account number …04 received into evidence (Exhibits “W3” and “W4”) I find:
(i)The offset account was created in June 2023, with an opening balance of $129,172.16 transferred into the account in July 2023;
(ii)On 7 December 2023 the account balance was $100,000.37.
(iii)By the time immediately prior to the commencement of the trial on about 29 April 2024, the balance remaining in the offset account was an amount fractionally over $96,000. This is an amount that has been brought to account by the parties in the joint balance sheet.
(i)The husband asserts that he discharged the following liabilities with the additional monies borrowed when he refinanced the home loan in July 2023 (Applicant de facto husband’s trial affidavit filed 26 April 2024, paragraph 158):
(i)An amount of $13,318.64 towards an L Bank Credit card ending …40;
(ii)An amount of $2,893.10 towards an R Financial Services credit card ending …01; and
(iii)An amount of $216.09 towards an L Bank personal loan.
(j)I am satisfied that in relation to those amounts, and accepting the de facto husband’s unchallenged evidence:
(i)The amount paid towards the L Bank credit card was to pay down expenses incurred on the card as earlier discussed; and
(ii)The amount paid towards the R Financial Services credit card was on account of a liability that existed at the time of separation, as deposed by the de facto husband (Applicant de facto husband’s trial affidavit filed 26 April 2024, paragraph 100).
In light of those findings, and doing the best that I can, it appears that:
(a)The difference between the monies that made their way from the refinance into the offset account ($129,172.16) and the total amount borrowed in the refinance ($143,547.69), is an amount of $14,375.53; and
(b)This amount is close enough to the amount applied by the husband to pay off the balances owing on each the L Bank credit card ($13,318.64) and the R Financial Services Credit Card ($2,893.10), at that time, being a total of $16,211.74.
In light of those calculations, it would appear that of those monies received by the de facto husband in the refinance, an amount of no more than approximately $33,000 was unaccounted for; being the difference between the amount that was deposited into the offset account ($129,172.16), less the amount that remains in the offset account ($96,000).
In addition to these transactions, it is the husband’s evidence that he has borrowed an amount of $94,300 from his mother to meet his legal expenses. He says that from time-to-time his mother transferred funds into his bank account, and he then used those funds to meet the payment of his legal expenses (Applicant de facto husband’s trial affidavit filed 26 April 2024, paragraphs 160-161). With regard to exhibits “W3” and “W4”, I am satisfied that these deposits were not made into the offset account.
Concessions made by Counsel during closing submissions
At the commencement of closing submissions counsel for each of the parties addressed the Court as to which items of notional property ought be included on the balance sheet.
Counsel for the de facto husband conceded that item 24 in the amount of $26,171 as asserted by him should be an amount added back. He says this should occur as it is the amount spent and unaccounted for by him from the additional monies transferred into the L Bank offset account when the refinance was effected in July 2023. It is not at all clear how the de facto husband arrived at this calculation.
The de facto husband otherwise opposed the add backs advanced by the wife.
The de facto wife’s position regarding addbacks was a little unclear. Her position was convoluted, and the submissions of her counsel did not assist to understand her position. Doing the best that I can, it appears that:
(a)Item 25 in the amount of $14,375 was not pressed;
(b)Item 22 in the amount of $143,547 was not pressed; and
(c)Items 20, 21 and 24 were pressed.
In light of the concessions made by the de facto wife’s counsel, I shall not have regard to items 22 and 25, and they shall not be added back.
The amount of $8,927 sought to be added back by the de facto wife
The de facto wife seeks to add back an amount of $8,927 (item 20).
It is apparent that the de facto wife seeks this amount as a direct consequence of the de facto husband arranging a payment “pause” on the mortgage repayments during the 2020 year.
The de facto husband concedes that he successfully made a hardship application during the COVID-19 pandemic in 2020 which resulted in a payment pause. He asserts that he did so when his work hours, and consequently his income, were reduced.
Having regard to exhibits “W1” and “W2”, I am satisfied that this payment pause took effect across both loans, with there being no payments made to the home loan between the months of April 2020 to September 2020 inclusive.
The wife calculates the payment pause resulted in an increase across both loans in a total amount of $8,927. No submissions were made as to how the de facto wife arrived at this figure, but again doing the best that I can to recreate her calculation, it appears she did so by deducting the balance just prior to the payment pause from the balance just after the payment pause for each of the loans and adding the amount of the interest adjustment credit received during that period to the total figure.
I have also had regard to the reduction in the husband’s taxable income during the financial year ending 30 June 2020 of an amount of no less than $25,000 consequential upon the reduction in his work hours due to the pandemic (Applicant de facto husband’s trial affidavit filed 26 April 2024, paragraphs 93-94). I accept this evidence.
In circumstances where the de facto husband was meeting all outgoings for the Suburb C property during the post separation period, and where I accept that his income had reduced over this same period through no fault of his own, I do not consider it unreasonable that the de facto husband made hardship arrangements in relation to the mortgage payments. Put simply, something had to give.
Accordingly, I do not consider it appropriate to exercise discretion to add these funds notionally back into the pool of property.
The amount of $14,981 sought to be added back by the de facto wife
The de facto wife seeks to add back an amount of $14,981 (item 21).
Having regard to the exhibits received into evidence I am satisfied that this amount is directly referrable to draw downs on the two mortgages made in November 2021 as follows:
(a)In relation to loan account number …12 (Exhibit “W2”), an amount of $9,273.50; and
(b)In relation to loan account number …13 (Exhibit “W1”), an amount $5,707.58.
The de facto husband did not provide any explanation as to how those funds were applied by him.
In all of those circumstances I consider it appropriate to exercise discretion and add the amount of $14,981 notionally back into the pool of property.
The amount of $8,250 sought to be added back by the de facto wife
The de facto wife seeks to add back an amount of $8,250 (item 23).
The de facto wife asks the Court to do so on the basis of the evidence of the de facto husband that he borrowed an amount of $8,250 to fund his legal fees relating to the Queensland Protection Order proceedings (Applicant de facto husband’s trial affidavit filed 26 April 2024, paragraph 150).
The evidence of the de facto husband is that he borrowed the amount of $6,600 from his sister to pay these fees and that he paid the balance of the total amount from his “own funds” (Applicant de facto husband’s trial affidavit filed 26 April 2024, paragraph 150).
During the trial, the de facto husband asserted that he had another $1,500 owing to his solicitors in Queensland.
Either way, and in the absence of any other evidence, I am not satisfied that matrimonial funds were used to pay these legal fees.
I therefore do not consider it appropriate to exercise discretion to notionally add back this amount into the pool of property.
The amount of $21,146 sought to be added back by the de facto wife as against $28,146 asserted by the de facto husband
The de facto wife asks the Court to add back an amount of $21,146, whereas the de facto husband asks the Court to add back an amount of $26,171 (noting that the amount he had originally included in the joint balance sheet was $28,146) (item 24).
Both parties identify this amount as the funds received by the de facto husband and unaccounted for by him as a result of his refinancing of the mortgages secured by the Suburb C property in July 2023.
Neither of the parties gave clear evidence about this, nor did counsel identify for the Court how their respective amounts were calculated.
When cross examined by counsel for the de facto wife, the de facto husband was unable to explain how the calculation was made. He did, however, give evidence that he thought that the calculations came from the bank statements, and that he thought the figure was closer to $28,000.
As earlier discussed, I have attempted to do the best that I can with the limited evidence and submissions. On my rudimentary and broad brush calculations, I earlier arrived at a figure of approximately $33,000 which appeared unaccounted for by the de facto husband.
Understanding that the de facto wife sought to add back a lesser amount ($21,146), and the de facto husband sought to add back an increased amount ($26,171), and taking into account the oral evidence of the de facto husband that the amount was closer to $28,000, I consider the amount referred to by the de facto husband in his oral evidence to be an admission I am prepared to accept.
For all of those reasons I consider it appropriate to exercise discretion to notionally add back the amount of $28,000.
Findings as to the notional property to be added back
In light of all of these findings, a total amount of $42,981 shall be added back as notional property in the de facto husband’s hands comprised as follows:
(a)The amount of $14,981; and
(b)The amount of $28,000.
This enlarges the net non-superannuation property to be divided between the parties to $1,574,771.
THE CONTRIBUTIONS OF THE PARTIES S 90SM(4)
I turn now to consider the contributions of the parties to the acquisition, conservation and improvement of property.
I am satisfied from the evidence that the de facto husband made a number of contributions as follows:
(a)He was in the main, the sole breadwinner for the family.
(b)He applied his income to the payment of expenses for the entire family, including those of the de facto wife’s children from her earlier marriage, whom I am satisfied on the evidence he treated no differently to the children of the relationship. These family expenses were met by the parties’ use of a joint credit card to pay these expenses, which included, groceries, clothing, household supplies and fuel. The de facto husband applied his income to pay off the joint credit card.
(c)Aside from the direct financial contributions made to the purchase of the Suburb C property (discussed below), as earlier identified the de facto husband was also solely responsible for the payment of the mortgage and other outgoings for the Suburb C property throughout the relationship and in the post separation period, save and except as provided by the orders made 12 October 2022.
(d)He made contributions as home maker and parent, outside of his significant work hours, which included largely being responsible for the upkeep of the outdoor tasks around the Suburb C property, and otherwise assisting with meeting all four children’s various needs, including but not limited to cooking, and transporting them to and from school and various extra-curricular activities and social outings and medical appointments.
(e)He also made contributions by way of care and assistance to the de facto wife when she was injured and unable to work and otherwise on occasions when she had surgery.
I am equally satisfied from the evidence that the de facto wife’s contributions included:
(a)Her contributions as homemaker and parent to the parties’ children.
(b)A far more modest financial contribution from the more limited income she derived during the relationship, including but not limited to the de facto wife’s/parties’ failed business ventures and her work in administration at various businesses. This modest income was from time-to-time applied to general expenses including but not limited to family grocery expenses and meeting various expenses for all four children and otherwise the de facto wife’s separate personal expenses and discretionary spending, including but not limited to the payment of her car loan as and from 2014.
(c)The de facto wife applied her income at her sole discretion, in circumstances where I am satisfied that her income was deposited into an account in her sole name.
(d)Modest initial financial contributions largely in the form of furniture and effects.
(e)The modest contribution from an inheritance following the death of her father in the amount of $2,987.
As earlier identified, during her oral evidence the de facto wife made concessions that the de facto husband was solely responsible for the funds applied to purchase the Suburb C property in 2008. I therefore find that the de facto husband made the following direct financial contributions to the purchase of the Suburb C property in late 2008 (as deposed in the applicant de facto husband’s trial affidavit filed 26 April 2024, paragraph 30):
(a)$66,500 from savings then held by the de facto husband and applied to the deposit;
(b)$66,500 applied to the settlement payment, comprised of $20,595.45 in savings and $45,904.55 from the proceeds of sale from the de facto husband’s unit at Suburb F; and
(c)$25,419 from savings then held by the de facto husband and applied to stamp duty and associated purchase costs.
Moreover, in relation to the Suburb C property, I accept the de facto husband’s unchallenged evidence that he made significant contributions to the Suburb C property which included his manual labour to complete significant renovations and improvement which included:
(a)During the relationship the conversion of a building into a dwelling, landscaping of the front yard, paths and driveway, the renovation of two of the bedrooms in the main house, the renovation of the kitchen and the installation of new gyprock walls and insulation in the lounge room (Applicant de facto husband’s trial affidavit filed 26 April 2024, paragraphs 64-65); and
(b)In the post separation period various repairs the de facto husband asserts were necessary when the de facto wife and the four children vacated the property in January 2023 (Applicant de facto husband’s trial affidavit filed 26 April 2024, paragraphs 134-140).
The de facto wife makes complaint that the de facto husband did not pay child support during the post separation period (of approximately 3 ½ years). The de facto husband however asserts that when the entirety of the financial support paid by him to maintain the de facto wife and all four children in the Suburb C property is considered, the Court will be satisfied that those contributions far outweigh any amounts that ought have been paid by him by way of child support. In that regard:
(a)I have had regard to exhibit “H6”, which confirms that in October 2020 the de facto husband’s solicitors sent the de facto wife’s solicitors copies of a V Organisation and an U Organisation Payment Plan for payment by the de facto wife. In response to this request, the de facto wife’s solicitor indicated that the de facto husband was “offsetting part or whole of the child support by way of mortgage repayments and these utilities”.
(b)I also infer that there was an offsetting arrangement by agreement, because the de facto wife was happy to accede to a child support departure order on 12 October 2022 with the de facto husband continuing to meet significant outgoings for the Suburb C property (as earlier identified) and his child support obligation being reduced to nil.
(c)It is therefore difficult to understand the complaint of the de facto wife.
(d)Equally however, in the absence of any clear and concise evidence as to the quantum of child support that had been assessed (including but not limited to copies of any Notices of Child Support Assessment), it is impossible to quantify the difference between the expenses that he paid to maintain the wife and the four children in the Suburb C property in the post separation period against his child support obligations. I however do accept that the financial support provided by the de facto husband in this regard was likely more than any child support assessment, because had it been otherwise, the de facto wife would have been unlikely to agree to this arrangement.
Turning to look at the arrangements regarding the de facto wife’s two children from her previous marriage (Mr D and Mr E):
(a)Whilst I note the de facto wife’s evidence that she received some child support from the children’s father, I am satisfied that it was an amount paid directly into the de facto wife’s bank accounts and was therefore undisclosed to the de facto husband and not applied to any of the household expenses the de facto husband met, it was likely nominal, and it likely fell far short of the children’s actual expenses.
(b)I accept that the de facto wife paid the school fees for these children from her separate bank accounts.
(c)Whatever the state of the de facto husband’s relationship with Mr D and Mr E by the time of separation, and thereafter, I am satisfied that during the relationship the de facto husband made parenting and homemaking contributions to those children without any differentiation between Mr D and Mr E and the children of the relationship. Those contributions included the children being taken on holidays, and whatever activities and outings the family engaged in from time-to-time.
In relation to the parties’ respective superannuation entitlements I find:
(a)The de facto husband came into the relationship with superannuation entitlements accumulated during his lengthy pre-relationship employment which began in approximately 1995. The balance of the de facto husband’s superannuation entitlements at the time of the parties’ cohabitation in 2007 however is not known, because despite the de facto husband asserting in his trial affidavit (at paragraph 39) that he had sought this historic information from his superannuation fund(s), that information was not put before the Court.
(b)The de facto wife did not have any superannuation of significance at the commencement of the relationship (Respondent de facto wife’s trial affidavit filed 10 May 2024, paragraph 32).
(c)The parties otherwise made contributions to their respective superannuation entitlements during the relationship, with the husband being in a position to make significantly greater contributions due to his full-time work, and the mother’s homemaking and parenting contributions which facilitated the de facto husband working full time.
RELEVANT S 90SF(3) FACTORS
The relationship of the parties is of 11 years duration.
The parties are of similar ages, with the parties each being 47 at the commencement of the trial..
Both parties appear to be in relatively good health.
In light of the final parenting orders, I am satisfied that the de facto wife shall be responsible for the whole of the care of the two children of the relationship; albeit that X (now 16) is inching closer to majority than Y (now 13).
On any view there is a significant income and earning disparity between the parties.
The de facto husband is paying child support as assessed for X and Y, and there is no basis for me to have any doubt that he will continue to meet this obligation.
I bring to account the de facto husband’s own evidence that in the post separation period he drew a sum of $20,000 from his superannuation entitlements (under COVID-19 arrangements) and applied this amount to the payment of his legal fees. Rather than adding back this amount, (which is not something that the parties have sought), this amount ought be considered pursuant to s 90SF(3)(r).
I additionally bring to account, pursuant to s 90SF(3)(r), the parties’ benevolence in allowing the de facto wife’s sister to live rent free in the dwelling at the back of the Suburb C property for almost the whole of the 2018 year.
ADJUSTMENTS
Having made all of these findings, consideration now turns to the assessment of the parties’ contributions and the relevant s 90SF(3) factors.
It is well settled that the assessment of contributions is a holistic one that requires the Court to bring to account the myriad of contributions made over the course of the relationship (see Dickons & Dickons (2012) 50 Fam LR 244 and Jabour & Jabour (2019) FLC 93-898).
In Steinbrenner & Steinbrenner [2008] FamCAFC 193 Coleman J observed:
234. Given the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a “leap” from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case.
Having considered the parties’ contributions wholistically, I am satisfied that the de facto husband made greater contributions than the de facto wife and that there should be a 57/43 per cent adjustment in his favour at the contribution stage of the assessment.
Turning to the relevant s 90SF(3) factors that I have earlier discussed, I am satisfied that there should be a five per cent adjustment in favour of the de facto wife, resulting in an 52/48 percent division between the parties, in favour of the de facto husband.
EFFECT OF THE PROPOSED ADJUSTMENTS
As I have earlier identified:
(a)The net non-superannuation assets of the parties, inclusive of the notional property totals $1,574,771.
(b)The superannuation entitlements of the parties total $532,885.
The de facto husband asks the Court to make superannuation splitting orders, on the basis the parties’ superannuation entitlements be assessed in a separate pool. Given the qualitative difference between the nature, form and characteristics of superannuation entitlements as against the non-superannuation assets, I am satisfied that the parties’ superannuation entitlements be dealt with in a separate pool. I also consider this to be an appropriate approach given the ages of the parties, and the delays until their superannuation will likely vest. I however propose to apply the same percentage division to the parties’ superannuation entitlements for all of the reasons that I have earlier discussed.
A 52 percent division in favour of the de facto husband will see him retaining:
(a)Net non-superannuation assets of $818,881; and
(b)Superannuation entitlements of $277,100.
A 48 percent division in favour of the de facto wife will see her retaining:
(a)Net non-superannuation assets of $755,890; and
(b)Superannuation assets of $255,785.
I have had regard to the proposed orders sought by the de facto husband, a document which was sent to the Court as well as the de facto wife’s solicitors via email dated 31 May 2024. I see from that document that the de facto husband wishes to retain the Suburb C property, with a default provision for the sale of the property in the event that he is unable to pay the settlement sum. No submissions were made against this on behalf of the de facto wife. I accordingly accept the husband’s proposal in this regard, and I shall use these proposed orders as the template for the orders I make. I do however include provision to adjust the principal sum to be paid to the de facto wife if the Suburb C property sells for a price other than $2,000,000, so as to ensure that the overall division between the parties reflects the outcome I have determined.
The assets and liabilities to be retained by the de facto husband are:
Item Value B Street, SUBURB C NSW $2,000,000 L Bank Account - BSB … - Account Number …19 $1,435 L Bank Account - BSB … - Account Number …79 $17,026 Household contents $1,500 Offset account associated with Suburb C property L Bank …04 $96,000 ANZ bank account ending …99 $8 Notional property added back $42,981 L Bank Loan
BSB … - Account Number …00
($595,000)
NET TOTAL $1,563,950
The assets to be retained by the de facto wife are:
Item Value M Bank Account - BSB … - Account Number …16 $216 M Bank Account - BSB … - Account Number …75 $450 M Bank Account - BSB … - Account Number …25 $2 M Bank Account - BSB .,.. - Account Number …91 $309 Westpac Account- BSB … - Account Number …39 $133 Westpac Account – BSB … – Account Number …44 $369 N Shares (1500 @ $ 0.00 as at 29/5/2024) NIL O Shares (… @ $ … as at 29/5/2024) $1,242 Household contents $1,500 Motor Vehicle 1 $6,600 NET TOTAL $10,821
The superannuation entitlements of the parties are comprised as follows:
Member Name of Fund Value H Super Fund 1- Member Number … $494,749 W Super Fund 2 - Account Number … $35,611 W Super Fund 1 - Member Number … $2,525 TOTAL $532,885
To achieve the division of property in the manner in which I have determined:
(a)The de facto husband will need to make a cash payment to the de facto wife in the amount of $745,069 to bring her non-superannuation entitlements to a net amount of $755,890, given she has assets of $10,821 in her possession.
(b)The de facto husband will need to split from his superannuation entitlements to the de facto wife an amount of $217,649, given she has superannuation entitlements in her name totalling $38,136.
I understand that the effect of the orders will see the de facto husband retaining:
(a)Non-superannuation assets totalling $62,991 more than the de facto wife; and
(b)Superannuation assets totalling $21,315 more than the de facto wife.
For all of the reasons that I have discussed, I consider this division to be just and equitable, and I shall make orders giving effect to the same.
I certify that the preceding one hundred and thirty-six (136) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 17 March 2025
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