Asad & Asad
[2021] FedCFamC2F 557
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Asad & Asad [2021] FedCFamC2F 557
File number(s): PAC 1903 of 2016 Judgment of: JUDGE NEWBRUN Date of judgment: 14 December 2021 Catchwords: FAMILY LAW – property adjustment - final Orders made Legislation: Family Law Act 1975 (Cth), ss. 79A (1) (b), (c) and (d), 78, 79A, 79(2), 75(2), 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021, r. 10.13
Cases cited: Cominos v Cominos [1972-73] ALR 581; (1972) 46 ALJR 593
1 Kennon v Kennon [1997] FamCA 27; (1997) FLC 92-757
Lotta & Lotta [2017] FamCA 50
Marras & Marras [1984] FamCA 56; (1985) FLC 91-635
2 Simpson & Hamlin [1984] FamCA 62, (1984) FLC 91-576, 9 Fam LR 1040
S & S [2003] FamCA 905
Division: Division 2 Family Law Number of paragraphs: 74 Date of last submission/s: 13 October 2021 Date of hearing: 13 October 2021 Place: Parramatta Counsel for the Applicant: Mr Schroder of Counsel Solicitor for the Respondent No appearance for the Respondent ORDERS
PAC 1903 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ASAD
Applicant
AND: MR ASAD
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
14 DECEMBER 2021
THE COURT ORDERS THAT:
1.That pursuant to section 79A (1) subsections (c) and (d) of the Family Law Act 1975 (Cth), the Orders made the 2nd of August 2016 be set aside and the following Orders be made.
2.That the parties do all such things and execute all necessary documents
(a)To sell the property at B Street, Suburb C being the whole of the land contained in Folio Identifier … (hereinafter referred to as the “B Street, Suburb C property”) utilising D Real Estate, Suburb E as the agent and Rafton Family Lawyers as Solicitors acting on the sale.
(b)The parties shall sell the B Street, Suburb C property by either private treaty or public auction at the election of the Wife.
(c)On sale of the property to cause the proceeds of sale to be disbursed:
(i)In payment of agent fees, sale fees and commissions and adjustments under the terms of the contract for sale
(ii)In payment of any registered mortgage
(iii)In payment to the Wife 60% of the balance
(iv)In re-payment to the Wife any costs associated with the sale involving necessary preparation, restoration, or remedial work in relation to the property incurred by the Wife as per these Orders.
(v)In payment of the balance to the Husband.
3.That the Applicant Wife be and is hereby appointed as trustee for sale on behalf of the Husband, Mr Asad, of the property at B Street, Suburb C being the whole of the land contained in Folio Identifier ….
4.As a trustee for sale the Wife may exercise the following powers on behalf of the Husband:
(a)The trustee shall be entitled to sell the B Street, Suburb C property either by private treaty or public auction subject to the following provisions:-
(i)The offering price, or reserve price in case of auction, as recommended by D Real Estate, Suburb E. In the case of auction in the event the B Street, Suburb C property remains unsold it shall be resubmitted to auction with the reserve price reduced by 5% until it is sold.
(ii)In the event the trustee incurs real estate agent auctioneer fees to facilitate an auction, then one half of those fees will be deducted from the Husband’s share of the net proceeds of sale and paid to the Wife.
(b)The trustee may incur costs for cleaning, rubbish removal, yard maintenance and restoration of the B Street, Suburb C property, to make the property clean and tidy in preparation for sale, as recommended by the agent [fair wear and tear excepted] up to a total sum of $10,000. The trustee shall retain invoices and receipts for such payments made. The trustee shall be reimbursed for such payments from the Husband’s share of the net proceeds of sale
(c)The trustee be authorized to enter into a contract for sale in such terms as advised by the solicitors acting upon the sale and sign a transfer for the subject property.
(d)The trustee is authorized to execute all necessary Instruments of Transfer, contracts, agency agreements, solicitor’s cost agreements, discharge authorities and other necessary documents on behalf of the Husband to give effect to these Orders.
(e)The trustee may change locks on the property so as to secure it. The costs of any locksmith are to be reimbursed to the Wife from the Husband’s net proceeds of sale.
(f)That the trustee have liberty to apply to restore on 48 hours’ notice to seek any further necessary order to facilitate the operation of these Orders.
5.That the Husband be and is hereby restrained from entering upon the B Street, Suburb C property, interfering with the conduct of the sale of the property, or preventing the trustee for sale from carrying out her duties and responsibilities pursuant to these Orders.
6.That pursuant to section 78 of the Act the Husband and Wife are hereby declared to be the sole and absolute owners at law and in equity of all items of furniture, furnishings, personalty, chattels, jewellery and monies (whether held in cash or in deposit with any bank, building society, credit union or other financial institution) presently in each party's possession, custody or control together with all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation, unless otherwise dealt with in these Orders.
7.That the Husband shall remain responsible for any or all liabilities in his sole name and shall indemnify the Wife and keep the Wife forever indemnified with respect to those liabilities.
8.That the Wife shall remain responsible for any or all liabilities in her sole name and shall indemnify the Husband and keep the Husband forever indemnified with respect to those liabilities.
9.That the Husband pay the Wife’s costs incidental to these proceedings.
10.Direct the Applicant Wife, through her solicitors, to notify the Respondent Husband of the above Orders within 7 days by ordinary prepaid post at the Respondent Husband’s last known residential address.
NOTATION:
A.Pursuant to Rule 10.13 of this Court’s Rules, a party may apply to the Court to set aside Orders made in their absence. Any application by the Respondent Husband, pursuant to Rule 10.13 of this Court’s Rules, seeking to set aside the above Orders, shall be made within 14 days of being notified of such Orders.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Asad & Asad has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
This was an undefended final hearing of property related proceedings between the parties. The Wife seeks certain Orders against the Husband who has not appeared to defend the Wife’s proceedings, filed on 12 February 2021. The Husband has not filed any documents following the Wife commencing proceedings.
Firstly, the Wife seeks Orders under section 79A (1) (b), (c) and (d) of the Family Law Act, 1975 (Cth) (“the Act”) setting aside final consent property Orders of this Court made on 2 August 2016. And secondly, should the Court make those Orders under section 79A of the Act, the Wife seeks certain property adjustment Orders under section 79 of the Act. The Orders proposed under section 79A and section 79 of the Act are set out in the Wife’s Minutes of Orders Sought attached to her Case Outline filed 12 October 2021.
The Court is satisfied that it is in the interests of justice for the Wife’s applications to be heard on an undefended final basis. The Court is satisfied, based upon the Affidavit of Nadine Rahhal, the Wife’s solicitor, filed 6 October 2021, that it is likely that the Husband has received prior notice of this undefended hearing.
The parties hail from India. The Wife is aged 43 years. The Husband is aged 46 years. They married in India in 2009. At this time the Husband was already living in Australia for a period of about 11 years. The Wife migrated to Australia in 2010. There is one male child of the relationship, X, born in 2014; he is now aged 7 years.
The parties finally separated in October 2013.
The principal asset of the parties is the former matrimonial home at B Street, Suburb C NSW (“the property”). The property is presently registered in both parties’ names.
MATERIAL RELIED UPON
The Wife relied upon the following documents:
(a)Amended Initiating Application filed 13 May 2021;
(b)Case Outline filed 12 October 2021;
(c)Affidavit of Wife filed 13 September 2021;
(d)Financial Statement of Wife filed 12 February 2021;
(e)Affidavit of Nadine Rahhal, solicitor, filed 6 October 2021;
(f)Affidavit of Mr F, valuer, filed 23 September 2021.
EVIDENCE
Section 79A (1) (c) and (d) applications
On 14 June 2016, final consent parenting orders were made in this Court. The Orders provided, inter alia, that the parties have equal shared parental responsibility for the child; the child live with the Mother; the child spent time with the Father, on a graduating basis, starting with day-time time for four months, then for six months in week one on Fridays and in week 2 from 6AM Friday until 3 PM Saturday, then for six months in week one on Fridays and in week two from 6 AM Friday until 3 PM Sunday, thereafter until the child commences school in week one from 5 PM Thursday until 5 PM Friday, and in week two from 6 AM Friday until 3 PM Sunday and on special occasions, then upon the child commencing school during school terms, on a week about basis from 5 PM Sunday until 5 PM the following Sunday and for one half of each school holiday period, and on special occasions.
After the above parenting Orders were made, the Husband complied with the Orders for about one year. In about October 2017 he started to make excuses that he could not spend time with the child. When the Wife declined a parenting related offer by the Husband, the Husband stopped spending any time with the child. The Husband has not seen the child since October 2017 and the Wife has been the sole carer of the child since this time.
Since the final consent property Orders were made by this Court on 2 August 2016 which provided, inter alia, that within six months the Husband pay the Wife $225,000 in return for the Wife transferring her interest in the property to the Husband, the Husband did not make that payment to the Wife. Later the Husband agreed to put the property on the market but he rejected every offer made between January 2018 and March 2018.
The Wife and the child lived in the property between August 2016 and March 2018. Then the Husband moved back into the property and the Wife and child moved out of the property with the Wife finding rental accommodation.
The property went to auction in April 2018 with a new real estate agent and offers were placed. However, the Husband did not consent to the property being sold. The parties were receiving offers between $800,000 and $928,000 which was more than the estimated value of the property at the time. The Husband always had excuses as to why he would not accept an offer and was wanting to change real estate agents again. Since the last auction in April 2018 nothing has happened and the Husband continues to not engage in any discussions with the Wife about the sale of the property. The Wife believes the Husband is still residing in the property. The rates on the property are overdue and have not been paid for one year; $3500 is owed. The Wife has paid her half share of the debt owing to real estate agent D Real Estate Suburb E relating to the previous attempted sale of the property.
The Husband ceased working in about 2016. Since about August/September 2017 the Wife has not been receiving child support and the Wife has financially supported the child on her own. The Wife is currently renting a one-bedroom property in the sum of $495 per week.
Due to the Husband failing to sell the property and failing to pay child support, the Wife is experiencing financial hardship.
The Wife is in good health.
The mortgage balance on the property as at 26 March 2021 was $14,714. No payments are being made towards this mortgage.
The Wife had an agent assess repairs to the property in about June 2021 and received advice that she would need to spend between $7,000 and $10,000 prior to the property sale to enable obtaining the best possible price.
The valuation Affidavit of Mr F values the property at $1,475,000, as at 14 September 2021.
Legal principles section 79A
Section 79A provides, relevantly for these proceedings:
FAMILY LAW ACT 1975 - SECT 79A
Setting aside of orders altering property interests
(1) Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
….
(c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
(d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
…….
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
…….
(1AA) For the purposes of paragraph (1)(d), a person has caring responsibility for a child if:
(a) the person is a parent of the child with whom the child lives; or
(b) a parenting order provides that:
(i) the child is to live with the person; or
(ii) the person has parental responsibility for the child.
The Court will firstly consider section 79A(1)(c).
In relation to the phrase “just and equitable” in section 79A(1)(c), the Court refers to the High Court decision in Cominos v Cominos [1972-73] ALR 581; (1972) 46 ALJR 593 at 601 where Mason J stated:
To authorise a court to make an order where it is just and equitable to do so creates a judicial discretion exerciseable after a consideration of all the circumstances relevant to the making of the order and in accordance with principle. The conferment of such an authority is not inconsistent with the exercise of judicial power.
In the view of the Court, the Husband has defaulted in carrying out obligations imposed upon him by Orders 1 and 6 of the Court’s Orders of 2 August 2016; the Husband failed within six months of those Orders to pay the Wife $225,000, and not having paid her that sum of money, failed to “do all acts and things and sign all documents to sell the B Street, Suburb C property by private treaty”. In relation to the sale of the property, for example, after the property went to auction in April 2018, the Husband failed to accept reasonable offers made for the purchase of the property.
Since the last auction in April 2018 nothing has happened in relation to the property and the Husband continues to not engage in any discussions with the Wife about its sale.
Whilst there is no evidence before the Court as to what the property was valued on 2 August 2016, the date of the Court’s previous consent property Orders, the highest offer made for the property in relation to the auction in April 2018 was $928,000 yet the property is now valued at $1,475,000, being an increase in the value of the property between April 2018 and the present time of $547,000. Accordingly, it is likely that there has been a significant increase in the value of the property between 2 August 2016 and the present time.
Accordingly, in the view of the Court, “in the circumstances that have arisen as a result of” the Husband’s above defaults of the Court’s Orders of 2 August 2016, it is just and equitable to set those Orders aside and make another Order in substitution for the Order, so as to take into account the present value of the property which is significantly greater than its likely lower value as at 2 August 2016. It would work an injustice and an inequity to the Wife to not have the Court make property adjustment Orders under section 79 of the Act taking into account the present and significantly greater value of the property and which would likely lead to the Wife receiving an Order for property adjustment significantly greater than $225,000.
The Court has considered whether Orders can be made under section 79A merely varying the property Orders of 2 August 2016 as opposed to setting those Orders aside, however, the Husband is not working (therefore, for example, a maintenance order is out of the question) and he does not appear to own any significant assets apart from the property.
The Court will now consider section 79A(1)(d).
The Court has considered the case law referred to by counsel for the Wife, including the decision in Marras & Marras [1984] FamCA 56; (1985) FLC 91-635, and Simpson & Hamlin [1984] FamCA 62, (1984) FLC 91-576, 9 Fam LR 1040.
On 14 June 2016, final consent parenting Orders were made in this Court, with parties being legally represented. Again, those Orders provided, inter alia, that the child live with the Mother and spend time with the Father on a graduating basis, culminating in the child spending week about with the parties by the time the child commenced school, together with the sharing of school holiday time. However, the Husband has not seen the child since October 2017, being only about one year and two months since the making of the property Orders of 2 August 2016, and the Wife has been the sole carer of the child since that time. The Husband pays no child support and has not paid child support since about August/September 2017, and the Wife has solely maintained the child since that time. The Husband had paid child support on a weekly basis between 2015 and 2017, which child support spanned the period when both the final consent parenting and property Orders were made.
The above case law indicates that what amounts to “exceptional circumstances” under section 79A (1)(d) is very much a question of fact and degree. In this case, the fact of the Husband ceasing to spend any time with the child in October 2017, and ceasing to pay any child support since about August/September 2017, being events relatively close to the making of the property Orders of 2 August 2016, and related to the care, welfare and development of the child, are, in the Court’s view, exceptional circumstances such as to take the matter out of the normal vicissitudes of life.
Further, the Court finds that the Wife will suffer hardship if the Court does not set aside the property Orders of 2 August 2016 and make another Order in substitution for such Orders. It is likely that the consent final property Orders of 2 August 2016, again noting the parties were legally represented, took into account the content of the final consent parenting Orders providing, ultimately, for an equal time shared care arrangement. Had the final consent parenting Orders provided for the Husband to spend no time with the child from October 2017, and had it been known that the Husband would cease to pay child support in August/September 2017, it is likely that a significantly greater property adjustment Order in favour the Wife would have been made compared to the Orders in fact made on 2 August 2016. And further, in relation to this issue of hardship, the Court takes into account the significantly increased value of the property to the present time compared to the likely significantly lower value of the property at the time of the property Orders.
Again, the Court has considered whether Orders can be made under section 79A merely varying the property Orders of 2 August 2016 as opposed to setting those Orders aside, however, the Husband is not working (therefore, for example, a maintenance Order is out of the question) and he does not appear to own any significant assets apart from the property.
Accordingly, under section 79A(1)(c) and (d), the property Orders dated 2 August 2016 will be set aside. There is no utility, accordingly, in considering the Husband’s proposed Orders under section 79A(1)(b).
Property proceedings under section 79 of the Act
Evidence
The Court refers to and accepts the contents of the Wife’s Affidavit filed 13 September 2021, together with the contents of her Financial Statement filed 12 February 2021.
Balance sheet
The Court now sets out its final balance sheet.
Balance Sheet
Name
File No
PAC«COURT__Court_Display»
Note: this document can be sent by electronic means between the parties prior to it being filed at court.
Date
«COURT__Hearing_date»
Time am«COURT__Hearing_time»
Before
Ownership Description Wife Husband ASSETS 1. J B Street, Suburb C $1,475,000 2. 3. 4. 5. Total $ 1,475,000 ADDBACKS 6. LIABILITIES 7. J Mortgage loan $13,000 Total $13,000 SUPERANNUATION Member Name of Fund Type of Interest Wife Husband 8. 9. 10. Total FINANCIAL RESOURCES Ownership Description Wife Husband Total $ 0.00 $ 0.00 Wife Husband ASSETS $1,475,000 $ ADDBACKS $0 $ LIABILITIES $13,000 $ Total $1,462,000 $
The Wife’s motor vehicle in her Financial Statement is a Motor Vehicle 1 and the Court infers that this was not a matrimonial asset with the parties having separated in 2013. Accordingly that motor vehicle does not appear in the balance sheet.
As to the Wife’s ANZ bank account in the sum of $45,000 and referred to in her Financial Statement, this sum has not been included in the balance sheet because it is likely that such sum was accumulated by the Wife post separation and should not be considered a matrimonial asset. In this context, the Wife has worked in full-time employment post separation, with final separation occurring in 2013.
As to the Wife’s superannuation, the Wife commenced working full-time in 2011 and has remained working since then. Again, separation was in 2013, and it is likely that the Wife’s superannuation asset has experienced its most significant increase in value since 2013 to date. Accordingly, this asset does not appear in the balance sheet as it should not be properly considered a matrimonial asset in the circumstances.
The Wife’s household contents in the sum of $3,500 cannot be considered to have accumulated prior to the party’s separation in 2013 and should not be considered a matrimonial asset in the circumstances.
Accordingly, the parties’ net non-superannuation assets, representing the property, $1,475,000, and its associated mortgage loan, $13,000, is the net sum of $1,462,000.
LEGAL PRINCIPLES
In Lotta & Lotta [2017] FamCA 50 Foster J stated:
281. The approach to the determination of an application under s 79 of 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.
282. 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.
283. 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.
284. 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 needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
285. In many cases this requirement is readily satisfied where the parties’ are no longer in a marital or defacto relationship and, thus, for example, the common ownership or use of property by Respondent and Applicant 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.
286. In particular, such a circumstance arises where both parties’ seek property adjustment Orders but are unable to agree as to same. Here the Applicant seeks an order for adjustment of property and the Respondent contends that there should be no such adjustment.
287. It is thus important to ascertain the present property and resources of the parties’ so as to facilitate a consideration of the s 79(2) question.
288. In some circumstances it is not possible to determine whether it is just and equitable to make adjustment Orders as to the parties’ present property rights without a consideration of s 79 (4) matters.
289. 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)).
290. 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.
Section 79(2) of the Act
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
The parties’ relationship commenced on their marriage in 2009 and they separated in October 2013. This separation continued while they lived under the one roof post separation until March 2018.
The Wife had no significant assets at the commencement of the relationship. The Husband brought into the relationship a home unit property at Suburb G. The value of this property at Suburb G as at the commencement of the relationship is not known. He also had a car worth about $40,000, some superannuation and savings the amounts of which are not known to the Wife.
The Wife’s homemaker and parent contributions during the relationship were considerable and she made the majority contribution in these respects compared to the Husband. Post separation and up to October 2017, the Wife again made the majority contributions in these respects. After October 2017 she solely made such contributions. Her contributions in this regard, both during the relationship and post separation, were contributions of substance.
The Husband worked in paid employment during the relationship, ceasing employment in 2016. The Wife also worked in paid employment from 2011 and to date. Both parties contributed their earnings towards the family’s finances and household during the relationship. The property was purchased in July 2012 for about $635,000. The parties used $186,000 from their joint savings for the deposit on the property and they borrowed $450,000 for the balance of purchase price and related costs.
In November 2012 the Husband sold the Suburb G property for about $287,000. He received an amount of about $200,000 from the proceeds of sale. This sum was then applied towards the mortgage loan over the property.
The Wife contended that her contributions to trial date should be assessed at 50%, and the Husband’s 50%.
Overall, assessing the parties’ respective contributions holistically, in relation to the non-superannuation assets, the Court assesses the parties’ contributions to the net non-superannuation assets, totalling $1,462,000, as at the date of final hearing, to be equal.
Section 75(2)
The Wife, aged 43 years, is in good health.
The Husband is aged 46 years. There is no persuasive evidence that he is not enjoying good health.
As to earning capacity of the parties, again, the Wife continues to work in full-time employment. There is no persuasive evidence that the Husband does not presently enjoy his former work capacity despite the Wife’s awareness that the Husband ceased working in about 2016.
The Wife, apart from the property, owns a 2019 car, value $14,000, savings of $45,000, and superannuation of $56,000. Again, she works full-time earning $1,000 per week gross. She receives some family assistance and a single parent payment.
The Wife received no financial support from the Husband in relation to the child’s maintenance post August/September 2017 and to date. The child is only aged about 7.5 years and it is likely that the Wife will have to solely financially support the child until the child reaches 18 years. The Wife’s weekly expenses for the child is $310, as per her Financial Statement. The Wife’s weekly income barely meets the payment of the Wife’s usual weekly expenses.
As to possible adjustments in the Wife’s favour under section 75(2)(o), the Wife submits that:
(a)the Husband has failed to make financial disclosure in these proceedings, including in relation to his savings, and superannuation entitlements;
The Court accepts this submission and the Husband’s failure to make such financial disclosure will be taken into account by the Court under section 75(2)(o).
(b)the Wife’s contributions during the parties’ relationship were made more arduous by reason of family violence and abuse she suffered at the instance of the Husband;
The Court refers to the decision in Kennon v Kennon [1997] FamCA 27; (1997) FLC 92-757 and to the discussion of that case in S & S [2003] FamCA 905. The Court refers to the Wife’s evidence relating to family violence at paragraphs 24 through to 39 of her Affidavit filed 13 September 2021.
The Wife, throughout the parties’ relationship, experienced physical, emotional and financial abuse towards herself at the instance of the Husband. As a result of the family violence, she found it difficult at times to conduct domestic duties in regard to cleaning the home. At times she felt sad and depressed and she was consistently stressed and worried. She was slapped across the face in mid 2013 by the Husband which caused a black eye. A few weeks later the Husband pushed the Wife causing her to fall backwards and she hit her head on the bathroom floor and blacked out. She had bruising all over her body from the fall. Police attended. They applied for an ADVO on behalf of the Wife. The Wife, due to pressure from the Husband’s extended family and from the Husband himself, did not proceed with the ADVO. She separated from the Husband in October 2013 following constant harassment from the Husband. She then went to the police. An interim ADVO was served upon the Husband and was in place for one year.
The Court finds that the Husband’s physical, emotional and financial abuse towards the Wife during their relationship did have a significant adverse and discernible impact upon the Wife’s contributions, as discussed above, and did result in those contributions of the Wife being made more arduous than they would otherwise have been.
(c)the Husband has remained in occupation of the property post separation (apart from a period of seven months immediately post separation) and has permitted the property to fall into disrepair.
The Court is not persuaded that the disrepair asserted by the Wife is other than usual wear and tear and it will not be taken into account by the Court under section 75(2)(o).
The Wife submitted that a section 75(2) adjustment in her favour should be made of 10 %. She submitted that the final adjusted contribution finding in favour of the Wife should be 60%.
Taking into account all the above matters under section 75(2), including under section 75(2)(o), there should be an adjustment in favour of the Wife of 10%. This results in an adjusted contributions finding of 60% in favour of the Wife, creating a disparity in her favour of $292,400.
Justice and equity
The parties’ shall retain their respective superannuation assets.
The Wife will retain her car, bank savings, and very modest household contents.
There shall be, in favour of the Wife, a 60% division of the net non-superannuation assets.
The property should be sold.
The Husband’s 40% share of the net non-superannuation assets, $1,462,000, is $584,800. The Wife’s 60% of $1,462,000 is $877,200.
The Wife should be appointed trustee for sale of the property on behalf of the Husband because, based on the Wife’s evidence contained in her Affidavit filed 13 September 2021, including her evidence relating to the Husband’s failure to comply with the Court’s property Orders of 2 August 2016, it is likely that the Husband will again fail to cooperate in relation to the sale of the property.
In the event that the property is sold, then the net proceeds of sale of the property, after payment of the mortgage debt, and sale expenses, shall be divided between the parties as to 40% to the Husband and 60% to the Wife.
The Husband can utilise the sum he receives pursuant to the Court’s Orders to, inter alia, possibly purchase residential premises.
The Wife can utilise her share of the proceeds of sale of the property to, inter alia, possibly purchase residential premises.
The Court is of the view that its proposed property adjustment Orders will represent a just and equitable property settlement between the parties.
It will be just, pursuant to section 117 of the Family Law Act1975 (Cth), that the Husband pay the Wife’s costs incidental to these proceedings. He has been the effective cause of the Wife bringing these proceedings and he has failed to engage in these proceedings. The Wife has been successful in these proceedings to a significant extent.
The Court’s Orders will reflect the above matters. Should the property be sold at a price greater than the current value of $1,475,000 then adjustments can be made consistent with these Reasons.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 14 December 2021
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