FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bambrick & Gorman [2023] FedCFamC1F 654
File number: SYC 6883 of 2020 Judgment of: BENNETT J Date of judgment: 8 August 2023 Catchwords: FAMILY LAW- PROPERTY- where period of cohabitation was ten years and husband made overwhelming financial contributions- where wife made non-financial contributions and contributions as a homemaker.
FAMILY LAW- PROPERTY- where husband contends that assessment of contribution and future needs must be on monetary sum basis rather than being expressed as a percentage of the total assets divisible between the parties- where assessment expressed in both monetary sum and percentage terms.
FAMILY LAW- SPOUSAL MAINTENANCE- where wife sought $1,000 per week pending payment of her entitlement- where court exercises spousal maintenance power to order such a payment be made- where spousal maintenance order may be subsequently varied if necessary.
Legislation: Family Law Act 1975 (Cth) Cases cited: Bevan & Bevan (2013) FLC 93-545
Browne v Green (1999) FLC 92-873
Carmel-Fevia & Fevia (No.3) [2012] FamCA 631
C & C [1998] FamCA 143
Chorn v Hopkins (2004) FLC 93-204
Cook & Langford (2008) FLC 93-374; [2008] FamCAFC 84
Figgins & Figgins (2002) FLC 93-122
GVC v HPC (1998) FamCA 143
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
M & M (1998) FamCA 42
Omacini and Omacini (2005) FLC 93-218; [2005] FamCA 195
SMB & MFB (2006) FamCA 46
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
Williams & Williams [2007] FamCA 313
Division: Division 1 First Instance Number of paragraphs: 215 Date of hearing: 30 & 31 August 2022 Place: Sydney (via MS Teams) Counsel for the Applicant: Mr Lloyd SC Solicitor for the Applicant: John R Quinn & Co Counsel for the Respondent: Mr Priestly Solicitor for the Respondent: Parker & Kissane ORDERS
SYC 6883 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BAMBRICK
Applicant
AND: MS GORMAN
Respondent
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
8 AUGUST 2023
THE COURT ORDERS THAT:
1.The husband pay to the wife the sum of $1,409,189 within 90 days of the date of this order (“the payment”).
2.If the husband fails to make the payment, the parties do all acts and things and sign all necessary documents so as to list the real property situated at B Street, Town C (hereafter referred to as ‘the B Street property’) for sale by private treaty for a period of two (2) months, with such real estate agent as is agreed between the parties on the following terms and conditions:
(a)The list price of the B Street property be such amount as is agreed between the parties but failing agreement, as nominated by the real estate agent subject to further order of the Court;
(b)The sale price of the B Street property be such amount as is agreed between the parties and failing agreement any offer to buy the property that is within $10,000.00 of the listing price;
(c)The parties co-operate in every way with the real estate agent in relation to the marketing of the B Street property for sale including making the keys readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer;
(d)The parties execute the contract of sale and all other documents necessary to complete the sale of the B Street property including all transfer documentation forthwith upon submission to them by the agent or the solicitor/conveyancer with carriage of the sale;
(e)The contract of sale provide for vacant possession and completion of the sale within 30 days after the date of the contract; and
(f)The proceeds of sale be applied as follows:-
(i)In adjustment of rates including water and council rates on settlement;
(ii)In payment of any agent’s commission on sale;
(iii)In payment of any legal and other costs related to the sale;
(iv)The balance remaining to be divided in the following order and priority:
A.$1,409,189 to the wife by way of transfer into the trust account of Parker Kissane Solicitors (the Respondent Wife’s Solicitors); and
B.Balance remaining to the husband.
3.If the B Street property is not sold by private treaty pursuant to Order 2 above, the parties do all acts and things and sign all necessary documents so as to sell the B Street property by public auction on the following terms and conditions:
(a)The property be listed with the real estate agent appointed under paragraph 2 (hereafter called “the Auctioneer”) or with an auction agent as agreed between the parties, for sale by auction within a further 6 weeks or such extended time as recommended by the Auctioneer to allow sufficient marketing;
(b)The parties execute all documents requested by the Auctioneer for sale of the property by auction;
(c)The reserve price of the B Street property be such amount as is agreed between the parties and failing agreement being reached 14 days prior to the auction, then the reserve price be not less than $8,400,000 or such other sum as may be ordered by the court;
(d)The parties each pay to the Auctioneer one half of any sums requested for advertising or auction expenses and if one of the parties pays all of the expenses, that party be reimbursed from the proceeds of sale in respect of one half of such payments before any division between the parties;
(e)The parties co-operate in every way with the Auctioneer in relation to the sale by auction including allowing inspection of the B Street property at all times reasonably requested by the Auctioneer and ensuring that the property is clean, neat and in good order at the time of any inspection and on the day of auction;
(f)That the parties attend at the auction and be available to negotiate with the highest bidder in the event of the reserve price not being reached;
(g)The sale price of the B Street property be any amount in excess of the reserve price but in the event of the reserve price not being reached the sale price of the B Street property be such amount as is agreed between the parties; and
(h)That upon agreement being reached for sale of the B Street property, the proceeds of the sale shall be applied as set out in paragraph 2 of this Order.
4.If the B Street property does not sell by public auction in accordance with paragraph 3 of this Order, the parties do all acts and things necessary to cause the property to be resubmitted for sale by private treaty in accordance with the provisions of paragraph 2 of this Order and for the B Street property to be resubmitted for sale by public auction at six monthly intervals from the last public auction and be resubmitted for sale by private treaty between such auctions, until the B Street property is sold and, upon sale either by public auction or private treaty, the proceeds of sale be applied as set out in paragraph 2 of this Order.
5.If the parties are unable to reach agreement in relation to an auction agent, a real estate agent, a listing price, a reserve price or a sale price whether a sale by public auction or by private treaty, and remain in disagreement for 14 days or more then the parties do all acts and things necessary to appoint the President for the time being of the Real Estate Institute of New South Wales or his nominee to determine the matter in dispute and, subject to any further order of the court in relation to implementation of this Order, the parties thereafter act in accordance with that determination and the parties be equally responsible for the costs and expenses of the President or his nominee to make such determination, with such costs and expenses to be deducted from sale funds received.
6.That pending Orders 1, 2 and/or 3 above, the following apply:
(a)subject to further order of the court, the husband have exclusive occupation of the property and during such right of occupation the husband be responsible for all payments of rates and outgoings for the property as they fall due up to and including the settlement date;
(b)the parties hold their respective interest in the property on trust pursuant to this Order;
(c)the husband be and is hereby restrained from increasing any mortgage balance, redraw balance or line of credit whether held jointly or in his sole name without the prior consent of the wife or further order of the court; and
(d)save and except for in the ordinary course of business, the husband shall not encumber the property without the consent in writing of the wife or any mortgagee.
7.The husband shall be solely responsible for all liabilities held in his name not specifically dealt within this Order and the husband shall indemnify and keep indemnified the wife for any liability howsoever arising thereafter.
8.The wife shall be solely responsible for all liabilities held in her name not specifically dealt within this Order and the wife shall indemnify and keep indemnified the husband for any liability howsoever arising thereafter.
9.That unless otherwise specified in this Orders and except for the purposes of enforcing payment of any money due under these or any subsequent Orders:
(a)Each party be solely entitled to the exclusion of the other to all property in the possession of such party as at this date including any jewellery, furniture, furnishings, shares and motor vehicles.
(b)Monies standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held.
(c)Each party hereby forgoes any claims they may have to any superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation or insurance stand shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other.
(d)Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this Order and any debt in the name of that party as at the date of this Order.
10.Each party do all acts and things reasonably required by the other, including the signing or execution of all necessary documents, to give effect to the provisions of this Order within fourteen (14) days of being requested to do so:
(a)If a party refuses or neglects to sign or execute or return a document within fourteen (14) days of presentation to them or a Solicitor representing them, then pursuant to Section 106A of the Family Law Act 1975, a Judge, Senior Judicial Registrar, Judicial Registrar or other Officer of the Federal Circuit and Family Court of Australia is appointed and empowered and directed to hereby sign or execute the same in the name of the defaulting party upon presentation of such document and an affidavit of a Solicitor on behalf of the requesting party as to the said neglect or refusal; and
(b)An affidavit by the solicitor acting for the non-defaulting party shall be sufficient proof of the other party’s default.
11.The husband pay to the wife the sum of $1,000 per week until the payment has been made, first payment to be made within 7 days by the deposit into an account nominated by the wife in writing and then weekly thereafter unless otherwise agreed between the parties.
12.The parties each have liberty to apply on (7) days’ notice to the other in the event of any difficulty arising out of the implementation and enforcement of this Order and to request that such application be listed before me urgently and without any intervening hearing by a Registrar or Judicial Registrar.
13.That otherwise all extant applications be dismissed and the matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.
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 the pseudonym Bambrick & Gorman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J:
INTRODUCTION
These financial proceedings under Part VIII of Family Law Act 1975 (Cth) (“the Act”) are between the applicant, Mr Bambrick, and the respondent, Ms Gorman following the breakdown of their 10 year relationship in March 2020. They both seek orders effecting a final alteration of property interests. The wife also seeks spousal maintenance. Notwithstanding that the parties are divorced, I will refer to them as the husband and the wife.
The legal principles relevant to a property settlement and to the wife’s spousal maintenance claim fall for consideration against a factual history which, was largely agreed but in respect of which each party brings a different perspective.
The proceedings were commenced by the husband’s Application Initiating Proceedings filed 29 September 2020 which he amended on 27 July 2022. The wife’s Response to an Initiating Application was filed on 13 November 2020 and amended on 26 August 2022. The superannuation and non-superannuation assets are valued at $12,533,657. The husband seeks a final alteration of property interests whereby he pays the wife $500,000 in lump sum and the wife retains the $200,000 which she received by way of interim property settlement pursuant to an order made by consent on 22 November 2021. The wife seeks a payment of $3,708,328 within 90 days. Neither party seeks a superannuation splitting order. The wife seeks $1000 per week until her entitlement to a lump sum is satisfied. The husband opposes any order that he pay the wife spousal maintenance.
Having read the affidavits, heard the evidence tested in cross examination, with the benefit of submissions from counsel and for the following reasons I find that an appropriate alteration of property interests will be effected if the husband pay the wife $1,409,189 by way of a lump sum, the wife retain the $200,000 she received by way of interim property settlement and that the husband pay the wife spousal maintenance of $1,000 per week until the lump sum is paid in full. I have made orders accordingly.
THE HEARING
The parties requested the hearing via the Microsoft Teams platform and the final hearing proceeded remotely from the Sydney Registry over two days.
Mr Lloyd of Senior Counsel appeared on behalf of the husband and Mr Priestley of Counsel appeared on behalf of the wife.
There was an electronic court book which was relied upon for the final hearing.
Evidence in the matter was concluded on 31 August 2022. The parties were given notice of the handing down of this decision. There has been no application to re-open the case to adduce further evidence.
RELATIONSHIP
The parties met in 2009. They commenced cohabitation in 2010 and married in 2014. The parties separated on 7 March 2020 when the wife moved out of the former matrimonial home. There has been no reconciliation. Neither party had re-partnered by the time of the final hearing. The parties are divorced, effective early 2023.
THE LAW
Section 79 of the Act confers power on the Court to make an order for alteration of property interests. There is a pathway for fact finding and the exercise of discretion. First, I am required to identify the legal and equitable interests of the parties in property which includes superannuation interests. Second I must be satisfied that it is just and equitable, within the meaning of s 79(2), to make any order altering the interest of the parties in property. If I am not so satisfied, the application will come to an end. Third, I will assess the various contributions of the parties. That is their direct or indirect, financial and non-financial contributions to property. Contributions as a homemaker and to the welfare of the family constituted by the husband and wife. Fourth, I will consider and effect any adjustment to the contribution based entitlement of the parties as a consequence of the effect of any proposed order on the earning capacity of either party within the meaning of s 79(4)(c) of the Act. Then I must consider such of the 19 matters referred to in s 75(2) of the Act as are relevant to this proceeding including, by reference to s 75(2)(o), any fact or circumstance which, in the opinion of the Court, the justice of the situation requires be taken into account shall be taken into account. Finally, I must be satisfied that, in all of the circumstances, the order which I propose to make is just and equitable within the meaning of s 79(2) of the Act and appropriate within the meaning of s 79(1).
My determination of any spousal maintenance application must necessarily follow the determination of the competing applications for property settlement. Section 74 confers power on the Court to make such order as it considers proper for the provision of maintenance in accordance with Part VIII of the Act. Section 75(2) of the Act provides that, in exercising jurisdiction under s 74, the court must take into account the matters set out in s 75(2), to the extent that they are relevant.
PARTIES
Husband
The husband was born in 1960 and is 63 years old. He works in the agriculture industry, having lived and worked on farm properties all his life. The husband has a brother and a sister. The husband left school when he was 14 years old to do unpaid work on his father’s properties. Within a few years he started contract work for relatives on a commercial basis. By the time the husband was 23 years old he was a full time contractor with employees. He continued in that business for 26 years.
The husband has two adult daughters from his first marriage, Ms D and Ms E. They resided with the husband at B Street from shortly after the breakdown of the husband’s marriage to their mother, Ms F, in 1993, when they were approximately 4 and 8 years old respectively. When they finished school they each left the B Street property to study or work.
At the time of the hearing. Ms D, now 34 years old, and Ms E, now 38 years old, were living with their partners and the husband’s grandson in a separate dwelling on B Street. The husband has a third child from another relationship, G aged 13 years, who resides with his mother in Town H, Queensland and regularly spends time with the husband.
It would not do justice to the husband’s case to merely recite his asset position at the commencement of his relationship with the wife. In my view it is necessary to appreciate the manner in which the husband accumulated the assets. I will include here the uncontroversial history of his acquisition of property up until the commencement of the parties’ relationship.
In 1978, when the husband was 18 years old, he purchased a one half share in the family farming property, B Street, from his uncle and thereby became a tenant in common and equal owner with his father and mother. The husband’s purchase was funded by bank loan. B Street is an over 60 hectare property with a homestead which has been used by the Bambrick family as a farming property. Several generations of the Bambrick family have lived in the immediate vicinity of the B Street property. The husband’s aunt lives close to B Street on a property that the husband’s great-great-grandfather first settled in 1906. The husband’s brother has lived his whole life in the vicinity of B Street. The husband has only ever lived in two houses. Until the husband was 25 years old he lived where his brother now resides. In 1985 the husband moved to reside at the B Street property and has lived there since.
In the mid-1990’s the husband’s father gifted him over 200 acres at Town J. The husband’s father ran livestock operations on the Town J property whilst the husband was occupied with his contractor business. The husband improved the Town J property including fencing, roads and clearing. In 2002 the husband subdivided and sold the Town J property. The husband used the proceeds of sale of Town J to purchase K Property in partnership with a business partner, each holding fifty per cent. K Property was purchased for $2,200,000. The husband and his partner borrowed $1,200,000 and each contributed $500,000. K Property provided an income from running farming operations and rent from a house on the property. The husband and his partner subdivided K Property. The first parcel of the subdivision was sold in 2007 and the last parcel was sold in 2009. On completion of the sale of K Property, the husband retained no interest in the land but he and his business partner agisted livestock with the new owners on K Property.
In 2007 the husband used proceeds from the early sales of the K Property to purchase a one quarter interest in partnership to subdivide over 500 acres of land in Town M known as “L Property”.
The husband’s share of net proceeds from the K Property partnership was $4 million, received in 2010, the year the husband and wife commenced cohabitation.
The husband retired from his contractor work in 2009 and continued to run livestock operations.
Wife
The wife was born in New Zealand in 1956 and is 67 years old. She moved to Australia in 1980. The wife has four adult children, two from her first marriage, Ms N (50 years), Mr P (46 years), and two from her second marriage, Ms Q (34 years) and Mr R (30 years).
At the time of the hearing in August 2022, the wife had just moved to City S to live and was not employed outside the home. The wife was living in rental accommodation with her son, Mr R and their pets. The wife had paid her rent in advance for the entirety of the lease in order to secure the property for which the weekly rental was $850.
At the time the hearing, the wife was in receipt of Centrelink JobSeeker payments but hoped to be able to get employment in the retail sector in City S reasonably soon. The wife has a history of employment in retail, including having operated her own business in partnership. The wife was last employed, in other than self-employment, as a retail assistant in approximately late 2020 to early 2021. I will say more about the wife’s income and income earning capacity in the context of the factors to be considered under s 75(2).
The wife sustained an injury in 2015 and deposes to ongoing difficulties with pain and movement. The wife is otherwise in good health.
The wife’s early life was not the subject of evidence. Drawing that threads together, the wife’s second husband was Mr T. There were final property orders entered into between Mr T and the wife which provided for the wife to receive $750,000. In 2009 the wife purchased a property at U Street, Town V. She put in $200,000. Mr T lent the wife $200,000 and the wife took a commercial mortgage for $600,000 from ANZ bank. The Town V property was rented and the rent was either sufficient to pay the mortgage instalments or there may have been a small shortfall for which the wife was responsible.
In 2008 the wife and a partner started a store known as W Pty Ltd. The wife and her business partner were both directors and equal shareholders of the company. The wife contributed $80,000 to establish the business. In 2008 the premises of W Pty Ltd was destroyed by a fire. Ultimately, the shop premises required two new fit outs in addition to establishment costs. The wife maintains that in the first four years of establishing W Pty Ltd she worked in the business approximately four days a week for seven hours. In the remaining six years the wife claims she frequented the business two to four hours a day.
ONUS OF PROOF AND FINDINGS OF FACT
Section 140 of the Evidence Act 1995 (Cth) provides the relevant test for the Court’s assessment of evidence in this matter: the facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities.
A statement of fact, including the aforementioned jurisdictional facts, is a finding of fact.
These reasons identify my factual findings and the matters which inform the exercise of my discretion according to the statutory framework.
DOCUMENTS RELIED UPON
The husband relied upon:
(a)His Amended Initiating Application filed 27 July 2022;
(b)His affidavit sworn 26 July 2022 and filed 1 August 2022 with strikeouts ordered on 30 August 2022; and
(c)His Financial Statement sworn 20 July 2022 and filed 27 July 2022.
The wife relied upon:
(a)Her Amended Response to Initiating Application filed 26 August 2022;
(b)Her affidavit affirmed and filed on 19 July 2022 with strikeouts ordered on 30 August 2022;
(c)Her Financial Statement affirmed and filed 19 July 2022;
(d)Her affidavit in reply affirmed and filed 12 August 2022;
(e)Affidavit of Dr X, surgeon, affirmed and filed 20 July 2022;
(f)Affidavit of Mr Y, Chartered Accountant affirmed 25 August 2022 and annexing his report dated 19 August 2022.
(g)Affidavit of Mr Z affirmed on 18 July 2022 and filed 19 July 2022 with strikeouts ordered on 30 August 2022;
(h)Affidavit of MS AA affirmed on 18 July 2022 and filed 19 July 2022 with strikeouts ordered on 30 August 2022; and
(i)Her Financial Statement affirmed and filed 13 November 2020;
Notwithstanding that the wife was the respondent in the proceedings, her affidavit of evidence in chief was filed first on 19 July 2022. The applicant husband’s affidavit of evidence in chief was sworn on 26 July but not filed until 1 August 2022. On 12 August 2022 the wife affirmed an affidavit in reply to the evidence of the husband.
The husband was his only witness. The wife had four witnesses in addition to herself. They were two friends, her surgeon and an accountant who gave evidence of the husband’s actual income. None of the wife’s other witnesses were required for cross examination.
CROSS EXAMINATION AND CREDIT
The husband and the wife were both required for cross examination.
Not every case calls for findings as to credit. Witnesses give evidence of what they recall. Recollections are usually a matter of perspective or at least tainted by personal perspective. Witness’ perspectives are informed by the impact on the witness of the experiences about which they give evidence and the impact can wax or wane in the time between when it occurred and when the witness gives evidence. Reliable documentary evidence or impartial evidence is frequently preferred.
In this case, each party had obviously prepared themselves to be cross examined. Each had recently looked at documents either in preparation for cross examination or because the documents had only recently come to light as a result of late subpoenas. However, both parties had some difficulty recalling dates and amounts of money. Each party deferred to the accuracy of documentary evidence when it was shown to contradict their own oral evidence.
A significant amount of attention in the husband’s case was devoted to the wife’s interest in U Street, Town V, a dwelling on over 10 hectares of land. In the wife’s trial affidavit, she deposed:
27.I purchased the [Town V] property prior to cohabitation for $1.1 million. I had received funds from [Mr T] to enable me to purchase it. Subsequently, [Mr T] wanted his money back in those funds came from [Mr Bambrick]. He provided $230,000 and this was paid to [Mr T]. The property was rented and the rent paid to the mortgage. Financially things became difficult because of the GFC, plummeting property prices, changes in interest rates. In 2014, we decided to sell the curable property for approximately $1 million. Upon the sale [Mr Bambrick] was paid $100,000 which was the surplus after payment of the agents commission and mortgage. I received no proceeds from the sale of that property.
28.It was my preference to retain the curable property, but [Mr Bambrick] never had faith in owning residential property. I took out an insurance policy said that [Mr Bambrick] would receive money if I died. I paid the premiums up to this year and then cancel the policy.
Under cross examination, the wife conceded that the purchased price was $1 million and not $1.1 million, The husband alleged that the wife had told him that her former husband, Mr T, was a co-owner of the property and that, when the wife requested that the husband lend her $230,000, those moneys were principally to acquire her former husband’s share in the Town V property. The wife conceded that she might have used the wrong terminology which led the husband to think that Mr T’s interest was proprietary rather than having lent her the $200,000.
The wife conceded that she was in error in referring to the “GFC” as a contributing to her decision to sell. She agreed that there was no Global Financial Crisis in 2014. Her perception of plummeting property prices was based on the fact that she regarded her property as being in a prime location but on sale it realised only what she had paid for it seven years previously.
In cross examination the wife was criticised for not having provided documentary evidence to verify the amount of the mortgage taken to acquire the Town V property, the contract of purchase and the contract of sale and no agents account sales. A document was produced that indicated some $890,000 from the proceeds of sale went into the wife’s account. The wife negotiated the mortgage from ANZ Bank to Commonwealth Bank. Ultimately it was clarified that the money that the amount required to discharge the ANZ mortgage was then taken from the wife’s account. The wife gave evidence that $220,000 remained from the proceeds of sale. From that $220,000, she gave evidence that $100,000 went to the husband, $10,000 went to her business, W Pty Ltd, and $10,000 remained in her account. She could not remember where the balance of $100,000 went. Her evidence was “I have no documents that tell me where it went and I have tried to get them and I can’t.” The husband stated at several points in his oral evidence that the wife repaid him only $100,000 of the $230,000 which he lent her. For instance, at page 7 of the husband’s Outline of Case filed 28 August 2023, it states “[t]he Wife […] repaid only $100,000. No documents or details have been provided by the wife concerning this transaction.” It transpired that Statement 178 on the husband’s account with BB Finance shows two credits of $100,000 being made to his account, on 12 and 13 November 2014 respectively, each noting under the Transaction Details “Direct Credit [Ms Gorman] Repay Loan.” That bank statement had been produced by the husband’s solicitors to the wife’s solicitors only on the Monday of the week of the hearing. It was tendered and marked Exhibit “W1”. It confirms the payments made from the wife’s Commonwealth Bank Account on the same dates as evidenced by her Statement 37 (Exhibit “W2”). The extra payment of $100,000 was the subject of an entirely proper concession by counsel for the husband to the effect that $200,000 rather than $100,000 of the loan of $230,000 had been repaid.
In cross examination the wife stated that the husband was not prepared to financially support her retaining the Town V property in the event that she was unable to meet the mortgage payments insurances and other outgoings. She volunteered that the husband “was very good and very helpful mowing lawns, clearing down the bottom, cleaning the roof”. The husband deposed that
41.During our relationship at [Ms Gorman’s] request, especially whenever there was a change of tenant, myself and my employee assisted her by:
(a) Cleaning the house.
(b) Slashing.
(c) Water pressure cleaning the roof.
(d) Cleaning the gutters
(e) Driveway upgrade.
(f)Mowing the property. To carry out this work I regularly had an employee assist with the ride on mowing and using my [vehicle] to remove rubbish etc.”
The wife’s response was that she agreed “except [Mr Bambrick] overstates the amount of assistance given. The tenants were great women, and they left the house in an immaculate state.” The husband did not adduce evidence from his employee to contradict any part of the wife’s response.
My impression of the wife’s evidence is that she did not try to unfairly minimise any aspect the husband’s contributions. In contrast, the husband gave the wife credit only grudgingly. For instance, in relation to farm work the wife’s evidence was that there were occasions when the husband was at CC Property and she was the only person at B Street and that she would “scan the pregnant [livestock] to ensure all was well” and that she would sometimes help mummy [livestock] give birth. She deposed “[…] On one occasion, a mummy [animal] was struggling and myself and one of [Ms D’s] girlfriends at the time tried to pull the [young] out of the mummy as no one else was on the property. Sadly, neither of them survived.” There was the following interchange between counsel for the wife in his cross examination of the husband:
And there were at least two occasions where [livestock] were having difficulty giving birth and [Ms Gorman] had to, basically, extract them, is the only word I can think of; that’s right, isn’t it?---I can’t recall her doing that, but she says she has.
Well, do you deny it?---Yes, I don’t recall her doing it. Yes, I deny it.
Because she actually also did it twice with you, where she helped you do it?---She stood on the side and held the [mother animal’s] tail while I’ve done all the birthing.
So she was present and she was helping, was she?---Present, but not much help.
You don’t want to give [Ms Gorman] much credit, do you, sir?---I give her credit where it’s due.
You see, she would also help you in your [farming] business by organising the food for when you were at work and would go up to the shack at [CC Property], wouldn’t she?---Carved the ham off the bone she said, yes.
So you want to play that down, too, do you, that all she did was carve the ham off the bone? Put it in a bag? That’s all she did, is it?---Packed my clothes.
She packed your clothes and she packed all the food you would need for when you were away, didn’t she?---Yes.
And then while you were away she would drive from [B Street] up to [CC Property]- - -?---Okay. That only happened about four times. I didn’t have the property till 2017 onwards. So that didn’t happen over a 10 year period like she makes out.
However, the wife had not deposed to going to CC Property over a ten year period. Paragraphs 23, 24 and 54 to 57 of the wife’s affidavit makes it clear that the wife’s visits to CC Property occurred only after the husband acquired his siblings’ interests and assumed full control of CC Property in 2020. The parties separated in March 2020.
The husband alleges that the wife was profligate in her spending during the relationship. The wife denies this and maintains that the money was applied towards “normal day to day living expenses”. The husband alleged the wife spent $91,000 to his knowledge and $207,486 without his knowledge during a period of the relationship. The husband no longer makes that allegation. The following evidence was however extracted from the husband in the course of cross examination on this point:-
COUNSEL FOR THE WIFE: it was just another piece of mud that you were trying to throw at [Ms Gorman], and when it didn’t stick, you just walked away from it and dropped it; that’s right, isn’t it?---Yes.
Finally, when the husband was cross-examined by Mr Priestley for the wife in relation to the assistance which the wife rendered on the properties, the husband gave the following evidence:
Now, do you have any employees?---Yes.
How many?---One full-time. He has been – no, go on.
How long has he worked for you?---Since about 1998.
Right. So he was present working for you at either [CC Property] or [B Street] […]. At one of those two properties for the whole of the marriage, wasn’t he?---Yes.
And he has worked for you for 24 years. You, obviously, get along with him?---Yes.
And when do you say that my client was no use as being any assistance on the farm, if that was true, you could have got him to swear an affidavit in these proceedings, wouldn’t you, and give evidence for you?---Yes, I could have.
And you didn’t, did you?---No.
I infer that the evidence of the husband’s employee would not have assisted the husband’s case.
Counsel for the husband described this as a case of non-disclosure by the wife. The wife gave evidence that she had thrown out a lot of records immediately before separation, which is understandable, given that she was moving and had no permanent accommodation to go to. My impression was that both parties either personally, or through their solicitors, were lax in providing documents but eager to complain that the other wasn’t making proper disclosure. When pressed, each party could go to the financial institution with which they banked and readily produce a relevant statement. That was done during the court hearing, it was a pity it was not done much earlier.
I do not regard the husband or the wife to have given evidence dishonestly. My impression is that the husband’s evidence was given less objectively than the wife. Neither had perfect memories. Both gave evidence that was proved not to be accurate. I do not regard either party as having given evidence with an intention to mislead but I regard the wife’s evidence to have been given more carefully than the husband’s evidence and that the wife’s evidence was less designed to enhance her own case.
SOME FURTHER BACKGROUND
The parties met and started going out together in 2009. The husband had retired from his contractor business to re-enter the agricultural industry. He deposes that he had high expectations of receiving a healthy income from the L Property development. The wife was living working at W Pty Ltd living in a property which she rented from her business partner.
The husband and wife commenced cohabitation in 2010 when the wife moved into the B Street property.
Unbeknownst to the wife, the husband’s son, G was born in 2010 (two days prior to the parties commencing cohabitation). The husband deposes that “I let [Ms Gorman] know when [G] was born.” The wife deposes that the husband told her of G’s birth a day or two after the wife moved into the B Street property. The husband said that the wife “made it clear that she was not happy about the arrival of [G]” The wife deposes to being completely taken aback by the news. She asked the husband why he had not told her earlier that a woman, Ms DD, was pregnant to him and he was about to become a father. The wife deposes that the husband replied “you know how these things go. She could have had a miscarriage. So I just thought I’d wait and see how it went.” The wife says that she asked the husband if he needed time “to work this out” and that she told the husband “I understand that you might need to be with her and your son as a family and I will walk away” to which the husband replied words to the effect of “I didn’t want to be with her when she found out she was pregnant, and I don’t want to be with her now that she has had the kid.” The wife left B Street to give the husband some time to think. The husband pursued the wife over the next few days, convinced her that his priority was to be in a relationship with her and the wife moved back into B Street. The wife was not challenged on any of this evidence in cross examination.
Settlement of the sale of K Property took place in 2010. The husband received $4 million. The husband and his partner continued to run livestock operations at K Property by agisting from the new owners.
In 2011 the husband advanced $230,000 to the wife as a loan, he claims, on the understanding that the wife would acquire her former husband’s interest in the Town V property and pay off her credit card debts.
In 2012 the new owners of K Property purchased the livestock from the husband’s partner and the husband entered into a partnership with the new owners to run the livestock operations.
In 2013 the wife entered into a Contract for Sale of the Town V property.
During the relationship the parties went on holidays including travel overseas and interstate. The wife deposes that the husband did not enjoy travelling and would complain, amongst other things, that it was a “waste of money”.
Following three and a half years of cohabitation, the parties married in Town C, New South Wales in 2014. This is the third marriage for both parties.
In 2014 the husband purchased a 50% interest (along with his business partner and friend Mr Z) in the over 10 hectare property located at EE Street, Town C (“EE Street property”) for over $350,000. The husband sold his interest in 2015 to his business partner for $650,000.
The wife deposed that she encouraged the husband to have a relationship with G. She said words to the effect of “I have no problem with you having a relationship with your son”. The husband responded “what am I going to do with a baby. I will wait until he is older and can walk and talk”. The husband deposes that “I did visit [G] when he was born. [G’s] mother was the sole carer for [G] until he was five years old [G’s] mother was happy for me to have as little or no contact with [G]. Just prior to [G’s]fifth birthday I felt it was time to start a relationship with [G].” The wife deposed “[o]ver the years, it played on my mind and leading up to [G’s] fifth birthday, I again raised the subject with [Mr Bambrick] that he needed to have a relationship with his child. I told [Mr Bambrick] that “it was the right thing to do”. Just before [G’s] fifth birthday, [Mr Bambrick] made contact.”
The husband commenced spending time with G in 2015 by which time G was five years old. The wife’s evidence was that, at the beginning, the husband would travel approximately every six weeks to visit G in Town H, all G and his mother would travel to Town FF for a weekend during school holidays and sat a local park. Later G’s mother would bring him to the farm, but G would return at night to his mother’s accommodation nearby. The husband alleges that the wife “made it clear that [G’s] mother was not to stay at [B Street].” From about 2017 G commenced staying overnight at B Street. The husband’s evidence was that a second bedroom at B Street was made available for G’s overnight stays which tended to take place on school holidays. G’s usual visit would be a few nights at B Street and then the husband would take him to CC Property where they would stay together with G accompanying the husband whilst he did farm work. The wife’s evidence was that G absolutely loved the farms, not the animals so much that the machinery, driving a farm vehicle supervised and that the time of separation G was learning to drive the tractors and the excavator.
In 2015 the husband’s father, moved his livestock from B Street so that all livestock on that property were the husband’s livestock. It appears that at approximately the same time, the husband’s parents gifted their one half interest in B Street to the hand but the gift was not perfected until the property was transferred in 2020.
The L Property partnership proceeded with the subdivision. The main farm was sold first in 2015 for around $2 million. The residential parcel of approximately 90 acres was more expensive to complete than anticipated. It was not sold until late 2020 which was after separation.
In December 2019, the husband purchased the half interest in the livestock facility on K Property from the new owners of K Property for $101,445.
In 2020 the husband purchased the interests of his brother and sister in CC Property and paid each of them $250,000. The total purchase price of $500,000 was drawn by the husband from his superannuation fund. The price payable to the husband siblings was calculated by reference to the Valuer-General’s valuation of the property in 2017 at $750,000. On 11 February 2020 a formal valuation of the property was obtained for $900,000. CC Property is owned by the husband’s self-managed superannuation fund. The husband describes the CC Property property as having a pole shed which is not Council approved. There are no services to the property. It is approximately one hour and 45 minutes drive from the main town of Town C. The husband deposes that, to help stock CC Property, his father gifted him $125,000.
The wife’s evidence was that during the relationship she sold her Motor Vehicle 1 to her son for $8,000 and that the funds were applied to her second European holiday with her daughter.
During the relationship the parties and the husband’s daughters would attend sporting events. The husband and his daughters would compete in the sporting competitions. The husband deposes that he would meet the nomination fees of the events which would range from $4,000 to $5,000 per event. The wife estimated the parties attended approximately 15 sporting events annually.
In 2014 the wife settled the sale of the Town V property for $1 million, the same price at which it was purchased for in 2009. In a document purporting to be a settlement statement in relation to the sale of the Town V property (Exhibit “H1”), the wife received proceeds of sale of approximately $890,000. After repayment of mortgage and associated agents and solicitor fees her net proceeds of sale were approximately $222,000. Upon receipt of the proceeds of sale the wife made two payments to the husband of $100,000 in part repayment of the loan. It was not until late in the evidence that both parties were prepared to agree that $200,000 has been repaid. The balance has not been repaid to date.
In 2015 the wife sustained an injury whilst working on K Property. The wife was taken to hospital. The wife participated in physio therapy and in 2016 underwent surgery.
The husband claims that in or around mid-2015 he observed the parties to be living beyond their means.
In 2017 the husband’s father gifted him, his brother and sister equal shares in a property located at CC Property, GG Street, Town M (“CC Property”).
In 2017 G, the husband’s child from a former relationship, commenced spending overnight time with the husband at the B Street property. The wife’s two children from her previous relationship moved into the B Street property for three months.
In 2020, prior to separation, the husband acquired his siblings’ interests in CC Property for $500,000. CC Property is owned by the husband’s self-managed superannuation fund (Mr Bambrick Super Fund). The evidence was that CC Property carries more livestock than B Street and produces more income than B Street. On 11 February 2020, in a valuation report obtained by JJ Valuers, CC Property was valued at $900,000. The husband deposes that in or around February 2020 his father gifted him $125,000 towards stocking CC Property.
The parties separated in March 2020 when the wife returned to Australia but not to the husband or the homestead at B Street. The wife had been visiting her family in New Zealand and telephoned the husband to inform him that she had decided to leave the marriage.
The wife’s later evidence was that she formed an intention to end the relationship shortly after reading the husband’s draft will. Prior to separation the husband wrote a life interest term into his will granting the wife, as the life tenant under the will, the ability to live in the homestead on B Street for the duration of her life, after which the property would pass to the husband’s two children. The wife’s evidence in regards to discovering the draft will was as follows:-
I knew there was an invoice coming, so I went into the office to print it out, and then I noticed there was an email from [Mr H] and I just went into it to print it out, thinking they had finally settled on CC Property, and it said Draft Will. So I just printed it out and, of course, read it. It came to my email, and I printed out the invoice and then [Mr Bambrick] came home, and I gave him the – both documents.
…
It said that his three children would inherit all the properties. His daughters would inherit any cash, and I was to live in the main home unpartnered and maintain the property at my own expense. And if the daughters were unhappy with the way that I did that job, that they could evict me.
Three weeks after discovering the will the wife went on a pre-planned trip to New Zealand. Upon her return, the wife moved in with friends, Ms AA and Mr Z, until August 2021. The wife described the draft will as the catalyst for the parties’ separation.
The husband deposes to having the following assets at separation:-
(a)B Street, Town C with a value of $4,000,000;
(b)L Property Partnership (25% share);
(c)Plant, stock, equipment and machinery;
(d)Contents;
(e)BB Finance account number ending in …44 with a balance of $6,293;
(f)BB Finance e-saver account number ending …56 with a balance of $90,915;
(g)KK Company shares;
(h)Mr Bambrick Super Fund (including CC Property property);
(i)Loan to Mr Bambrick Super Fund valued at $250,000.
At the time of separation the wife had her half interest in the business, W Pty Ltd, at Town C, some household contents and a very small amount of superannuation. Following separation, the wife withdrew $5,000 from her super. Thereafter, in her initial financial statement filed 13 November 2020 the wife deposes to having superannuation of nil.
Following separation, the wife and her business partner had a falling out. As a consequence, the wife resigned as director and transferred her share of the business to her business partner in return for $30,000. The funds from the sale of the wife’s business were applied by the wife as follows:-
(a)$15,500 towards the purchase of a second hand motor vehicle, Motor Vehicle 2;
(b)$600 for the registration of transfer of the motor vehicle;
(c)$2,800 in legal fees in respect of the dispute between the wife and her former business partner; and
(d)$3,927 in legal fees in regards to the current proceedings.
The wife deposes that the balance of $7,500 was applied towards her living expenses.
The husband commenced these proceedings in August 2020.
On 22 November 2021 an order was made by consent that the husband pay to the wife $200,000 by way of part property settlement. The due date for payment was 29 November 2021.
On 24 November 2021, the husband received $736,968 for his one quarter partnership interest in L Property upon sale of the residential parcel of approximately 90 acres in 2020.
In mid-2022 the wife relocated to City S, Tasmania with her adult son and pets, having secured a short term lease. The wife secured a 12 month lease paying approximately $850 per week in advance to late 2022. The wife’s evidence was that she had offered a similar advance as an incentive as part of other rental applications in City S but was unsuccessful. The wife’s son contributes to food and household expenses “from time to time”. The wife expressed an intention to relocate to Melbourne permanently with a view to rent initially and then buy a home.
Since proceedings were initiated the wife deposes to having received threats from members of the husband’s family and/or agents of the husband. The threats and general unpleasantness and, the wife’s evidence was a sense of vulnerability, motivated her to leave the region and move interstate.
IDENTIFICATION OF LEGAL AND EQUITABLE INTERESTS
Counsel for the parties were able to agree on the value of non-superannuation assets.
There was some controversy surrounding the value of the husband’s funds held at bank. In the husband’s financial statement filed 27 July 2022 he deposes to a total balance of $808,883 across two accounts with BB Finance. In the husband’s Outline of Case document filed 28 August 2022 the husband deposes to a balance of $545,900. That is spending of $262,983 in the span of a month. The explanation given by the husband under cross examination was that the funds were applied towards normal running expenses of the farm, monthly bills and legal fees. The husband’s total legal fees were $264.320.95. The husband also gave evidence that in the week prior to the final hearing he purchased livestock from his daughter Ms E for consideration of $22,890. I note that this purchase is absent from the husband’s balance sheet as on his evidence he had only purchased the livestock after the Case Outline was drawn. I will add $22,890 to the value of the husband’s livestock of $868,100. That leaves approximately $68,000 spent on farm expenses about which the husband was cross examined but not to the point of any concession being obtained.
The only dispute to add backs. Each party claims that certain monies of which the other party has had use since separation ought to be added to the value of existing property to be divided and be regarded as received by that party on account of his or her entitlement to an alteration of property interests. I will refer to the monies as “add backs”.
The husband seeks to add back the $200,000 received by the wife by way of part property settlement by the wife pursuant to an order made by consent on 22 November 2021. Notably, the wife deposes that $68,748 of the $200,000 were spent on legal fees in these proceedings. The wife, through counsel, conceded to her prepaid legal fees being added back should be a total of $76,000.
The wife seeks to add back the husband’s legal fees paid. I am informed that the husband’s costs paid to end of June 2022 were $94,515 and the total amount paid in August 2022 is $169,805 being a total of $264,320.
Add backs are traditionally considered under s 75(2)(o). However, I will deal with the evidence and applicable legal principles now so my conclusions can be included in the table of property interests.
The law in relation to add backs is settled so I will mention just a few of the authorities.
In GVC v HPC (1998) FamCA 143 the Full Court (comprising Nicholson C J, Ellis & Kay JJ) stated:
[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 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.
In the decision of M & M, (1998) FamCA 42, the Full Court, comprising Baker, Kay and Chisholm JJ observed (as quoted by the Full Court, comprising Finn, Kay and May JJ in Chorn v Hopkins (2004) FLC 93-204 at 79,314):
There seems to be no appropriate basis for notionally adding back monies 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 requires 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..
In Omacini and Omacini (2005) FLC 93-218 the Full Court comprising Holden, Warnick and Le Poer Trench JJ stated, in effect, that there were three clear categories of cases where the court had determined that it was appropriate to notionally add back to the property to be divided between the parties. First, were where the parties had expended money on legal fees. Second, where there had been a premature distribution of assets which were divisible between the parties. Third, where one of the parties have undertaken reckless investments or deliberately set out to diminish the value of the divisible assets. In relation to legal fees, their Honours stated:
30.To date, three clear categories of cases have emerged where the Court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a)Where the parties have expended money on legal fees. In DJM and JLM (1998) FLC 92-8l6 the Full Court said at 85,262:
" 11. 6 For reasons set out in Farnell, s 117 provides that each party to proceedings under the Family Law Act shall bear their own costs unless the Court otherwise orders. Failing to add back monies expended by parties on costs frequently has the effect of defeating the policy of s 117 by permitting the pool of available assets for distribution between the parties to be diminished by any monies that either of the parties have managed to spend on their costs up to the date of trial. We are of the view that the normal approach ought be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought normally be spelt out. "
In relation to premature distributions, their Honours stated:
(b)Where there has been a premature distribution of matrimonial assets. In Townsend and Townsend (1995) FLC 92-569 Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at 81,654:
"In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband's receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly."
In relation to reckless and wanton expenditure, their Honours stated:
(c)In the circumstances outlined by Baker J in Kowaliw and Kowaliw (1981) FLC 91-092 at 76,644:
, 'As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a)where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b)where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec 75(2)(0) to applications for settlement of property instituted under the provisions of sec 79."
In Omacini’s case, the Full Court went on to observe “[as] the Full Court said in Browne v Green (1999) FLC 92-873 at 86,360:
"44. We agree with her Honour that the principles stated by Baker J in Kowaliw certainly do not constitute any form of fixed code. They are no more than guidelines for use in the exercise of the discretionary jurisdiction conferred by s 79 of the FamilyLaw Act 1975. Nevertheless, they have over the considerable period of time since they were enunciated, become a well accepted guideline in this jurisdiction - a guideline the use of which assists in the achievement of the important goal of consistency within the jurisdiction. "
In SMB & MFB (2006) FamCA 46 the Full Court, comprising Bryant C J, Kay & Warnick JJ, held:
[71] In the present case, no finding was made by the Trial Judge that the Wife had either embarked on a course of conduct designed to minimise the value of the matrimonial assets, or that her expenditure was reckless, wanton or negligent.
[72] Thus, we think that there is a fundamental flaw in the pool created by the Trial Judge which included a notional addback of the monies that the Wife had received on account during the hearing. Absent any negative finding about the Wife’s expenditure which she had detailed in her Affidavit and which she asserted to be her reasonable annual expenses, we cannot see any basis upon which His Honour ought reasonably to have added back the sum of $102,500.00 to the asset pool.’
In C & C [1998] FamCA 143 the Full Court, comprising Nicholson CJ, Ellis and Kay JJ observed that it will be “the exception rather than the rule” that a direct dollar adjustment equivalent to the amount of the alleged dissipation of the pool is made to the otherwise entitlement of a party.’ In Bevan & Bevan (2013) FLC 93-545 the Full Court comprising Bryant CJ, Finn and Thackray JJ said the following about add backs:
[79]We observe that “notional property”, which is sometimes “added back” to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them,” and thus is not amenable to alteration under s 79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage – and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s 79(4) and in particular s 75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property” things.
Whether property is to be added back into the divisible assets is a matter of what is just and equitable in the circumstances of the case. As was stated by Murphy J in Trevi & Trevi (2018) FLC 93-858, with which Alstergren DCJ (as he then was) and Kent J agreed:
36. Paid legal fees occupy a particular position in the consideration of addbacks by reason of s 117(1) of the Act; a matter not relevant to any other form of expenditure or dissipation of property the subject of an addback claim.
37. An order failing to addback legal costs is a pre-emptive decision about one party paying the other’s legal costs. The statutorily prescribed default position is that neither party pays all or some of the other party’s costs.
38. If, contrary to the demands of that section, there is to be a payment of costs, the award is dependent upon a finding of justifying circumstances which, in turn, is dependent upon (non-exhaustive) considerations all of which are informed by antecedent events - for example, whether one party has been “wholly unsuccessful” and “the conduct of the parties to the proceedings”. An award of the costs of trial, if any, is in the usual run of events made after the respective entitlements of the parties to a settlement of property have been assessed and, importantly, any awarded costs are paid from the assessed entitlement to property received by the paying party.
39.As has been said, legitimate guidelines “guide the exercise of a discretion”; they do not replace it. Guidelines, must “[preserve], so far as it is possible to do so, the capacity … to do justice according to the needs of the individual case”. The decision to addback or not addback paid legal fees remains a matter of discretion. But, a finding that it is just and equitable to not addback an amount of legal fees so paid is a finding that it is just and equitable for the other party to contribute to the costs of the first party in that proportion as part of an overall assessment of the justice and equity governing their property division.
40.The considerations just referred to are plainly always important and central to the exercise of that discretion in respect of paid legal fees.
41.The passages from Chorn, quoted above, draw a distinction between legal costs met from property that would otherwise be available at trial and legal costs met from funds “generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance)”. The proposition there advanced, that such expenditure “would generally not be added back”, also needs to be seen as a guideline informing the relevant discretion rather than determining it. A further distinction is suggested in Chorn between funds generated in that manner and “[f]unds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement”.
42.The latter suggestion recognises the discretion inherent in the task and also, perhaps, that in the particular circumstances of a case, adding back sums generated post-separation in the different manners suggested might create injustice as much as it might cure it.
(footnotes omitted)
Counsel for the husband, Mr Lloyd SC, submitted that the partial property settlement of $200,000 should be added back against the wife because it “[it] has already been paid” and “it has been provided and it has had an effect for her to do all of the things she has done for the past year”, including paying her legal costs in this proceeding. I do not see any magic in the characterisation of the $200,000 as a partial settlement of property over and above it giving expression to the head of power under which the court made the Order of 22 November 2021, Characterisation of the $200,000 as a partial settlement of property is not determinative of whether the property (here a cash payment) will be added back when the court finally alters the property interests of the parties. The construction of a partial property settlement as immutable and incapable of being treated as anything other than an amount by which an entitlement to an alteration of property interests must be deemed to have been received and automatically credited, would be a fetter to the court’s discretion when making its final order for an alteration of interests under s 79(4). It would potentially prevent the court from effecting an alteration of property interests which is just and equitable. It could be contrary to s 79(2) which requires that the court being satisfied that it is just and equitable to make an order, is a precondition to making an order altering the property interests of the parties. It could be contrary to s 79(1) that provides that the court make such order as it considers appropriate.
The wife utilised the $200,000 from partial property settlement as follows:-
(a)Legal fees $68,748.01
(b)LL Accounting $1,237.50
(c)Dr X $2,640.00
(d)Prepayment of rent for accommodation in City S $29,385.71
(e)Credit Card debt payments E$22,374.49
(f)Repay loan to reduce credit card debt to Ms Q $20,000
(g)Rent for Town MM property incl. electricity $16,500
(h)Costs of relocation to Tasmania $4,000
(i)Furniture for home in Tasmania paid on Credit Card $5,500
(j)Removalist fees $5,148
(k)Return flights to Sydney $215
(l)Return flights to New Zealand paid on Credit Card $1,108.31
In addition, the wife deposes that she advanced monies to a friend, Ms NN totalling $22,000 to assist with costs associated with flood damage to her property in early 2022. The wife was repaid the full amount in mid-2022 when Ms NN sold her property. Under cross examination by counsel for the husband the wife was asked “you’ve basically utilised $200,000 short of 20,000 haven’t you?” To which the wife’s response was “Yes”.
I regard the payments made by the wife to be reasonable. I make no negative finding. The wife’s payments were not designed to minimise the value of the property interests to be taken into account and nor was the wife’s expenditure reckless, wanton or negligent.
I will add back $76,000 conceded by counsel for the wife as having been paid in legal fees in spite of her legal fees being referred to elsewhere as $68,748. Counsel for the husband did not make any submission in opposition to adding back the husband’s paid legal fees against the husband so I will do so in the sum of $264,320.
Non-superannuation property
Based on the value of the parties’ legal and equitable interests above I summarise the non-superannuation assets and liabilities of the parties as having a total value of $10,584,610 as follows:-
Description Ownership Value B Street, Town C Husband $8,375,000 Livestock at cost Husband $40,000 Livestock at cost (formal valuation) Husband $890,990 Jewellery Wife $4,400 Artwork Wife $53,000 Household contents Husband $20,000 Household contents Wife $15,000 Motor Vehicle 2 Wife $13,500 Motor vehicles and work machinery Husband $276,000 KK Company shares Husband $2,500 Funds at bank Wife $8,000 Funds at bank Husband $545,900 Unpaid employee entitlements Husband ($41,060) Credit card liability Wife ($23,358) Wife’s legal costs paid from assets and added back Wife $76,000 Husband’s legal costs paid and added back Husband $264,320 TOTAL $10,584,610 Superannuation interests
The husband has a total superannuation interests of $1,947,378 being $1,933,997 in his self‑managed superfund (which contains the property situated at CC Property valued at $2,000,000) as well as $13,381 with Superannuation Fund 2. The wife has $1,669 with Superannuation Fund 3.
The total superannuation interests of the parties are $1,949,047.
TOTAL LEGAL AND EQUITABLE INTERESTS
Total value of legal and equitable property interests of the parties is including superannuation $12,533,657.
IS IT JUST AND EQUITABLE TO MAKE AN ORDER?
Both parties have sought an alteration of property interests. Neither contended that it was not just and equitable for the Court to make such an order. Independently of the position of the parties, I have to determine whether it is just and equitable to make an order altering the parties’ interests in property. As a result of the choices made by the husband and wife to end their marriage, I am satisfied that their common use of property, which is essentially property held by the husband to the exclusion of the wife, is no longer practicable. I am satisfied that it is just and equitable within the meaning of s 79(2) to make an order altering the interest of the parties in property.
CONTRIBUTIONS UNDER S 79(4)
Section 79(4) provides that in considering what (if any) orders should be made in property settlement proceedings, the Court must take into account contributions made by the parties. There are two limbs to s. 79(4). The first limb is retrospective and comprises contributions under s 79(4)(a) to (c). They include financial contributions (s 79(4)(a)) and non-financial contributions (s 79(4)(b)) made by or on behalf of a party to the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them. Contributions can be direct or indirect. They also include the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage, including any contribution made in the capacity of homemaker or parent (s 79(4)(c)). The second limb is prospective under s 79(4)(d) to (g) and relates to the future needs of the parties.
The husband’s unchallenged evidence was that at the commencement of cohabitation he had:-
(a)A 50% interest in B Street, Town C;
(b)Net proceeds from the sale of K Property;
(c)A 25% share in the L Property Partnership;
(d)Superannuation entitlements;
(e)Plant, stock and equipment;
(f)Motor vehicles value;
(g)A 50% interests in the K Property partnership;
(h)No liabilities.
The husband had no liabilities at the commencement of cohabitation.
The wife’s evidence was that at the commencement of cohabitation she had:
(a)A 50% partnership interest in the W Pty Ltd store;
(b)An encumbered property at U Street, Town V;
(c)Motor Vehicle 1 purchased in 2008 for $42,000; and
(d)Personal effects.
The amount outstanding in relation to the mortgage over the Town V property is not known.
The husband introduced significant capital at the commencement of the relationship as a result of property acquired from his familial relationships and personal endeavour. There was agreement that direct financial contributions were overwhelmingly those of the husband. Counsel for the husband and the wife had the following exchange:-
Do you agree with the proposition that he accumulated assets that he has amassed prior to your cohabitation with him and during, has come about largely because of, firstly, his very hard work?---Yes.
Secondly, that he has inherited a great deal of the assets?---Yes.
Thirdly, that he has been in attendance upon those properties diligently and professionally all of his life?---Yes.
And that there has not been any financial contribution directly by you to the acquisition or maintenance of any of those properties?---Financial, no.
The husband’s pre-cohabitation wealth was not the subject of agreed valuations or expert evidence. However, I accept that the husband’s current wealth is attributable to assets, resources and skills that he brought to the marriage. Further that some property, such as B Street has increased very significantly in value from $3.1 million in 2017 to $8.4 million post separation.
Post separation the value increased from $5.9 million to $8.3 million. Counsel for the wife addressed me on the concept of a “windfall”, submitting that the husband’s real property increased in value “not due to any particular effort or act of either of the parties” and is therefore not a relevant consideration under s 79.
In this case, however, to characterise the increase in the value of property due to market forces as a windfall is not appropriate because it does not pay obvious regard to the skill and application of resources by the husband to acquire a sound investment in the first place, the intrinsic value of real property (as opposed to, say, a ticket in an undrawn lottery) and the decision to retain or deal with the property as occurred in all the circumstances of the case.
The husband must be credited with having brought his pastoral interests into the marriage as a direct financial contribution. The fact that those interests appreciated in value during the relationship was a combination of his initial sound investment strategy, the intrinsic value of his endeavours and an increase in capital growth due to market forces. As stated by the Full Court comprising Kay, Coleman and Stevenson JJ observed in Williams & Williams [2007] FamCA 313 (and cited by Alstergren, CJ and Ryan and Aldridge JJ in Jabour & Jabour [2019] FamCAFC 78):-
26. We think that there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution towards the parties. Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing or the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in so doing it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.
Of the $4,000,000 the husband had received from the sale of K Property in 2010, overtime he applied $2,666,000 of the proceeds as follows:-
(a)To his superannuation fund $575,000
(b)To upgrade B Street $300,000
(c)To the wife for her Town V property $230,000
(d)To purchase farm equipment $130,000
(e)To purchase stock $300,000
(f)To purchase half interest in Town C $361,000
(g)To investment in L Property Partnership $520,000
(h)To improvements to CC Property $200,000
(i)To acquire share in investment $50,000
The $300,000 used to purchase stock, referred to in subparagraph (e) to the preceding paragraph was not wholly derived from the sale of K Property. $125,000 gifted from the husband’s father. The husband applied the balance of the proceeds on K Property, of $1,334,000, to operating his farming interests and living expenses.
The husband deposes that during the relationship the wife and he “kept our finances separate”. The wife takes issue with the husband’s evidence in this regard. In any event, it is a fairly hollow distinction because the wife’s finances were small compared to the husband’s. The evidence was that the wife maintained her own bank accounts. The husband did not have oversight of them but there was also no evidence that the wife had anything more than a modest income from her business which she used, in part, to buy groceries. The husband concedes that in the first two years the wife purchased groceries but, save for this expenditure, the husband maintained that he paid for all household expenses, living costs, holidays and entertainment from the commencement of cohabitation in 2010 up until separation in 2020. The only bank statement put into evidence by the wife, Exhibit “W2”, indicates that the wife was purchasing groceries, liquor and petrol in Town PP, Town FF and Town C from 1 to 21 November 2014 and from 11 December 2014 to 30 January 2015. It appears that the wife was purchasing groceries, petrol and liquor for the parties’ household outside the two years conceded by the husband.
Until 2018, the wife had access to the husband’s accounts for payment of household expenses. She purchased gifts for family members, catered for family events and attended to payment of the sporting expenses. The parties did not have a common view of what household expenses were and the husband was critical of some purchases, such as a coffee table ($500), household goods, decorator items and single bedding and single bed for G. In 2018 the husband changed the password to his account so she had to ask him for money for any extras over and above a direct debit allowance of $500 per week. The wife used the allowance of $500 per week to purchase groceries, household supplies and personal expenses such as grooming, nutritional’s, mobile telephone, exercise and to meets some credit card expenses and general expenses.
The husband’s evidence was that he met the parties living expenses from a combination of income, which the husband describes as “little income from the farm” and capital being the balance of proceeds of sale of K Property ($1,334,000) and the proceeds of sale of the property at EE Street, Town C ($650,000).
The husband’s evidence in relation to certain payments to the wife was not challenged. The husband deposed that, at the wife’s request, he paid:-
(a)$20,000 in December 2015 to purchase inventory for her business, W Pty Ltd. As well as $5,000 in May 2015 and $5,000 in April 2016;
(b)$230,000 to her being a loan with respect to the property and U Street, Town V and a further $50,000 in October 2012;
(c)Maintenance expenses on the Town V;
(d)$4,000 to purchase a motor vehicle for the wife’s daughter, Ms Q on the understanding that $2,000 was a gift and $2,000 would be repaid to the husband by the wife’s former husband, Mr T (Ms Q’s father). The husband deposes that he understood that Ms Q’s father repaid $2,000 to the wife but the wife did not pay it to the husband;
(e)$3000 to purchase Motor Vehicle 3 for the wife’s daughter Ms Q;
(f)For trips to New Zealand for the wife alone to visit her grandchildren. The husband deposes that in more recent times, the wife travelled to New Zealand approximately four times a year at an estimated cost of $600 per visit;
(g)$20,000 for the wife to holiday in Europe in 2016 (without the husband);
(h)$8,000 for the wife to holiday in Europe in 2019 (without the husband).
Counsel for the husband submitted that I should assess the wife’s contributions at $500,000 over and above the $200,000 the wife has already received. The thrust of this submission was that the husband has $500,000 on hand and could pay that sum without borrowing or selling. In relation to a sale, it was submitted in general terms that a sale of one property may necessitate the sale of both properties.
Counsel for the wife submitted that I should assess the wife’s contributions 15% which would equate to $1,880,000 or thereabouts.
In the present case, the parties’ cohabitation was of 10 years duration, the husband’s direct and indirect financial contributions were overwhelming and all of the divisible assets can be traced back to the pre-cohabitation contribution of the husband or were gifts from his parents. The wife’s contribution is confined to non-financial contributions and homemaker contributions which necessarily ceased to be made at separation.
Within that characterisation of the contributions, I am satisfied that the wife did all that could be asked or expected of her and made those contributions very well. The wife’s contribution as a homemaker was important and of consequence. I discerned from the presentation of the husband’s case a sentiment that to the extent that the wife did make contributions she didn’t do so at his request or expectation. I have discounted that as a likely scenario. The parties commenced cohabitation in 2010. The wife’s fondness for travel, style of entertaining, catering, expenditure and homemaking was well and truly known to the husband by the time the parties married in 2014. If the husband had misgivings about the wife he had more than adequate opportunity to decide to end the relationship before it was solemnised. The fact that he did not do so, and went on to marry, leaves me with the impression that the reservations he now expresses are more to do with the end result of these proceedings than any genuine dissatisfaction with their life together for the bulk of their relationship.
I have not mentioned every contribution claimed by each party but I have taken all of the evidence into account. The financial contributions were made solely by the husband. His financial contribution at the commencement of cohabitation was and remains hugely significant. Both parties made non-financial contributions. Each party made significant contributions as homemaker. All contributions must be recognised in a meaningful way. However, one category of contribution is not necessarily to be given the same weight is another category of contribution. This is particularly so in a relationship medium to long duration such as here, when the parties cohabitated for a little over ten years. The husband’s financial contribution at the commencement of capitation and throughout the marriage must be accorded the most weight but the wife’s non-financial contributions must also be recognised.
I assess the wife’s contribution at $1 million or 8% over and above anything that the wife already has received including the part of the partial property settlement that I declined to add back.
THE EFFECT OF ANY PROPOSED ORDER UPON THE INCOME EARNING CAPACITY OF EITHER PARTY
Section 79(4)(d) provides that, in considering what order (if any) should be made in property settlement proceedings, the court must take into account the effect of any proposed order upon the earning capacity of either party to the marriage.
The proposed orders has no impact on the income earning capacity of the wife.
I appreciate that there is a certain interdependency between CC Property and the B Street property. The husband deposes that, when needed, he is able to move livestock from CC Property to B Street depending on the feed then available. He says that he plants grass at B Street for winter and moves some livestock from Town M and K Property to B Street for better care.
The husband has a lot of carried forward losses against which he can adjust income. The B Street property has an agreed value of $8,000,375 but does not produce much income. CC Property has an agreed value of $2 million but carries the majority of livestock and produces most of the income. I queried Counsel on the default provisions but Counsel for the husband did not pose any alternative to the default mechanism being exercised over the B Street property rather than CC Property.
CONSIDERATIONS UNDER S 75(2)
Section 79(4)(e) requires me to take into account the matters referred to in s 75(2) so far as they are relevant.
The age and - state of health of each of the parties
The husband is 63 years old and in good health.
The wife is 67 years old. The wife relies on the affidavit of Dr X, surgeon filed 20 July 2022 annexing his medical report dated 18 May 2022. Dr X’s medical report was prepared pursuant to a letter of instruction sent by the wife’s solicitors on 19 April 2022. For the purposes of preparing his report Dr X assessed the wife on 26 April 2022. His report summarises the wife’s account of the injury including the treatment she received to date. At the time of the report the wife complains of “aching”, ”restricted movement”, “poor […] strength” as well as “occasional paraesthesia […] at night”.
As to his clinical opinion on whether the wife suffers ongoing physical impairment as a result of the injury Dr X notes:-
[The wife] does have an on-going, physical impairment as a result of the […] injury. She will have difficulty lifting, pushing and pulling more than 2 to 3 kg […]. She has difficulty lifting objects […]. These restrictions will be permanent.
Dr X records that the prognosis in respect of any improvement in function is “poor”. Dr X’s report concludes that:-
[The wife] suffered a significant injury […] with on-going, activity-related discomfort and restricted function. This restricted function will be permanent with the previously listed restrictions permanently in place, which may affect her ability to return to fruitful employment in the future […].
Dr X was not required for cross examination. I accept his evidence.
The husband deposed to not being aware of the extent of the wife’s hand until he read Dr X’s report. The wife’s response, which was not challenged, was that “[Mr Bambrick] was well aware of the limitations […] following the injury. He re-employed the cleaner. He agreed to me having weekly appointments at my hairdresser. I did not start going back to [exercise] until 2018, three years after the accident. [W Pty Ltd] was hardly taxing on my [injury].”
I find that the wife has a permanent injury. There is no suggestion of her seeking compensation from the husband under state law. This injury is a matter that I give weight to in deciding on any adjustment under s 75 (2).
The income, - property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment.
The husband, in his Financial Statement filed 27 July 2022 deposes to a total weekly income of $659 comprising his superannuation pension ($577) and investment income ($82). The husband has total weekly expenses of $711 comprising rates and unit levies on the B Street property ($94), health insurance ($53), car insurance ($125) car registration ($89) and Child Support for the benefit of G ($350). The husband has declared net assets of approximately $12,000,000 comprising real property, funds at bank, livestock and superannuation and liabilities of nil. He is 63 years of age and in good overall health.
The wife relied on the evidence of Mr Y, Chartered Accountant which was a report dated 19 August 2022. The report, which dealt with an analysis of the husband’s financial position, was prepared pursuant to a letter of instruction sent on behalf of the wife’s solicitors on 12 August 2022. An analysis of the husband’s taxable income for the year 2022 found:-
[Mr Bambrick’s] income tax return for the Year ended 30 June 2022 does in fact show a taxable income of $nil. It is noted however within the taxation return that there is a claim for carried forward losses of $369,564. As previously mentioned the claim for Carried forward losses is a valid claim for taxation purposes however does not give a correct indication of actual income earned.
It should be also noted that within the taxation return there is an adjustment for losses incurred in a contracting business which removes the taxation benefit of the loss as a “Quarantined Loss”
If we were to adjust the taxable income to remove the effect of both of these taxation adjustments the true income of [Mr Bambrick] for the year ended 30 June 2022 is $231,361.
Mr Y was not required for cross examination by the husband. I accept his evidence. I understand that the husband’s income is calculated by reference to carried forward losses and predicated on the husband having the future income and inclination to plough money back into his properties and livestock or other commercial ventures.
At the time of the hearing the wife was not in paid employment. The wife has a history of employment in retail but has not been in paid employment since approximately mid-2020 when she operated her own business in partnership. The wife was last employed, in other than self‑employment, as a retail assistant in approximately late 2020 to early 2021. The wife received her part property settlement in November 2021. She ceased paid employment in April 2022 in order to relocate to Tasmania. The wife deposes to difficulties securing consistent work as well as experiencing a “lower standard of living” in Tasmania.
The wife’s financial statement was affirmed and filed 19 July 2022. She receives Commonwealth government Centrelink JobSeeker payments of $350 per week. Her specified weekly expenses total $892 comprising car insurance ($22), home contents insurance ($5), American Express credit card payment ($75), other American Express credit card payments ($35), Mastercard credit card payments ($30) and other expenditure ($725). The other expenditure per week includes food ($300), Gas/Wood ($100), electricity ($100), Internet ($35), Telephone ($35), petrol ($40), fares and car parking ($10), clothing and shoes ($25), medical, dental and optical ($20), entertainment ($20), Chemist ($20) and hairdresser ($20). Notably the wife’s expenses do not include accommodation. Her evidence was that she prepaid the entirety of her lease due to scarcity of adequate rental properties and stiff competition for what is available. Her accommodation was advertised at $850 per week. Accordingly, the wife’s expenses are not $892 per week. They are $892 per week plus accommodation costs.
When asked whether the wife’s expenses represent her actually weekly spend or what her weekly spend would be if she had the money the wife replied “both”,
The wife’s expenses were not challenged in cross examination. There was the following interchange:
HER HONOUR: Well, how long will you be able to meet the expenses to which you depose, and which have not be the subject of challenge, if you don’t get any more money?---I now – once these proceedings are over this week, I will go back and try and get a job.
And how much – you say you think you will be able to get $30 an hour for seven hours, two or three days a week, approximately 14 to 21 hours per week. Where?---Yes.
Where?---In [City S], in retail, or I may just have to try and get what I can get.
Well, have you actually sought employment in [City S]?---I haven’t, no, because I’ve been up here three times, I think it is, since I’ve been down there.
So you don’t know how easy it is to get a job in [City S], or how hard?---I don’t know yet, no.
The wife’s evidence, largely obtained in cross examination, was that in November 2021 she has instructed her solicitors to prepare a spousal maintenance application when the husband agreed to pay the wife a partial property settlement of $200,000. Those funds were received by her on or about 29 November 2021. The payment removed the need for her to apply for periodic support. With the exception of legal fees and a residue remaining of $20,000, the proceeds of the partial property settlement were eventually used for the wife’s reasonable day to day living expenses.
The wife gave evidence that she intends to return to part time paid employment in retail because that is what her qualifications would allow. Indeed, the wife deposes that given her injury and her age “retail was and is [her] only chance of securing employment”. The wife estimates being in a position to earn approximately $30 an hour working for up to 21 hours per week. The wife had not applied for any employment since relocating to Tasmania in May 2022 but intends to look for employment within weeks of returning to Tasmania after the final hearing.
I am satisfied the wife’s lesser income and lesser capacity to earn income requires an adjustment being made in her favour pursuant to s 79(4)(c).
Sub-section 75(2)(d)
I take into account the commitments of each of the parties that are necessary to enable the support himself or herself. The husband has a duty to maintain G and pays child support of $350 per week.
Sub-section 75(2)(e)
I take into account the eligibility of each - party for a pension, allowance or benefit from under a government law and under any superannuation fund or scheme. The husband’s superannuation interests, most of which is in a self-managed fund and equates to the current market value of CC Property, have a total agreed value of $1,947,378. The wife’s superannuation interest has an agreed value of $1,669.
Neither party sought a splitting order in relation to the husband self-managed superannuation fund. That may be because any superannuation splitting order over and above the cash funds available to the husband would require the sale of CC Property which is owned by the fund. CC Property is the property on which most livestock is run and the property which produces the greater income. That is, CC Property which is valued at $200,000 produces a larger income than B Street which is valued at $8,375,000. The husband receives a pension from his private superfund of $577 per week.
At the time of the hearing, the wife was in receipt of a JobSeeker income tested benefit from the Commonwealth Government of $355 per week which was an amount far less than her Financial Statement indicated she required to cover her reasonable expenses exclusive of accommodation costs.
s 75(2) (g) where the parties have separated, a standard of living that in all the circumstances is reasonable
At the time of the trial, the wife was living in an apartment in City S and stated that her standard of living was of a lesser standard than the standard of living which she had during the marriage. She was not specific as to how her standard of living has decreased. The case has moved from the country to the city and so life will be quite different. At some point, and it might as well be here, I should consider the fact that the wife voluntarily moved away from Region SS, where she had lived for the preceding 22 years to Tasmania where she has had to set up house again. The wife deposed that her move to Tasmania was preliminary to eventually moving to Melbourne. The wife’s uncontradicted evidence was that she felt she could not remain in Region SS for fear of being ostracised by the community and potentially harmed by the husband’s family members or other people incited by the husband. The wife’s evidence in this regard was unchallenged. She annexed various correspondence received by her and her daughter.
The husband’s first wife, Ms F wrote to the wife in the following terms on 21 November 2021 at 8:46 pm which was the evening of the day of the conciliation conference in these proceedings:
Wow, just wow. Turns out you’re nothing but a gold digging, scamming, sociopathic piece of scum? Of course you are…
And now you think your royal presence hanging around the farm was worth over 500k a year, not counting all the 100’s of thousands you stole or never paid back to pay for real estate, OS trips, clothes & facials on your greedy ass self?
You want 500k ++ a year! Are you on fucking crack?!
You have NO RIGHT to any of it! You didn’t buy it or build it. You didn’t work it year in, year out. You came in with fuck all!
You literally just dropped by for a visit & reaped all the benefits of everyone else’s hard work!
It belongs to my (our) girls future, not to some con-artist, Oscar winning actress who comes in & PRETENDS for 7 years to actually care about them while you feathered your own nest at their expense. Actually the girls were the fucking feathers weren’t they? Pretend you love the girls & everyone else just falls into place…
You’ve betrayed both those girls, never mind the wider family who all welcomed you.
You are threatening their farm & future, which you think, by some insane logic, you have some right to via [Mr Bambrick], without caring one iota how its going to effect them & their birth rights.
If anyone had a right to it it was me! But I left it for my girls. And for [Mr Bambrick] & the family because they needed it more than I did. Its who they are.
I settled for $120k after working a hard 12 years building up a business & 2 children.
I should have taken the whole lot to keep your greedy claws off it for my girls, you evil piece of work.
And now you think you’re worth 3.8 million! Must have been hard work spending all [Mr Bambrick’s] money, putting up with the high life while scheming & manipulating everyone every day. Would have been draining emotionally. But I guess for potentially a few million it was worth it. Afterall, that was the plan…
I don’t know how you sleep at night but I know the number of people wishing bad karma on you will bring it to your door one day. No wonders you stay out of [Town C]. Someone would see you & run you down like a stray dog
I will stand up in court & end you, you fucking loser, two faced, lying bitch.
I will inform the court of your lies & embezzling & what I went without so that my children kept their legacy & that the farm represents way more than only the %%% you see. It represents their whole identity.
I never trusted you. But those girls did so I trusted their judgement. How wrong were they? Its totally disgusting what you’ve done to them.
I hope theres a hell for you to rot in cause that’s what you deserve.
Fuck you very much & the horse you rode in on. You won’t win this no matter how you play the victim. You get nothing & have to get a job or starve you bloody soulless bitch
On 18 February 2022 the wife’s daughter, Ms Q, received a message from Ms TT, the wife of the husband’s daughter, Ms E, directing that Ms Q “Pass the message on to your mother”. The message was received at 11:51 am and read:-
How do you sleep at night! I used to think you were a loving and caring woman I was so wrong. Does it cross your mind when you lay in bed at night the amount of stress you put on this family! How your greed has effected not only [Mr Bambrick] but all of us. How your greed has you to believe you have the right to take [Ms E] and [Ms D’s] home away from them. Not to mention take my sons home away from him. How does a woman that has birthed her own children sleep at night knowing this. [Mr Bambrick] may have not been the best husband to you but he supported you and he supported your children with endless amounts of money… and you still think you have a right to do what you are doing! All you have ever done is TAKE TAKE AND TAKE and you haven’t been around for 2 years and you think you can still TAKE TAKE AND TAKE! Requesting to see [Mr UU’s] will! You disgust me! Know that you are running the girls lives, know that you are causing them stress, know that your greed and selfishness upsets them on the daily. I don’t wish unwell on anyone but I hope one day someone does this to one of your children and you have to live the days to see the effect it has on them and everyone around them. I hope my words cut deep and I hope my words keep you awake at night like your greed keeps all of us awake at night.
The message from Ms E’s wife is unpleasant but superficially not as threatening as the message from the husband’s first wife. However, this message was directed to the wife’s daughter which, I accept, made the wife feel as though she and her family were under siege. I accept that the wife was fearful and that the sentiments of the Bambrick family members would be likely to permeate the local community.
I am satisfied that it was reasonable for the wife to relocate interstate to Tasmania. I accept the wife’s evidence that she feels safer with her son, Mr R, living with her than she would feel if she were living alone.
s 75(2) (o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
I have already dealt with add backs in the context of legal fees and identification of the legal and equitable interests of the parties in property.
The only other matter which falls for consideration under s 75(2)(o) as a fact or circumstance which in the opinion of the court needs to be taken into account is the wife’s contribution to the care of G. It is accepted that the husband, as G’s father has a responsibility to care for G. That responsibility does not form the basis of an adjustment under s 75(2)(c) because G is not a child of the parties marriage. The wife has no legal responsibility to care for G and, as such, her endeavours are considered to be contributions made to assist the husband in the discharge of his obligations (see Robb and Robb (1996) FLC 92-555 (Lindenmayer, Finn and Joske JJ)). I am satisfied that the wife was as encouraging of the husband’s relationship with G as she stated. This is in spite of the callous way in which the husband informed the wife of G’s birth. I am satisfied she was welcoming of G and assisted the husband with G’s care when G stayed with them and to a lesser extent, when the husband and G stayed at CC Property.
I am satisfied that the wife rendered assistance to the husband I his care of G to an extent that I ought to give weight to that fact in my assessment of adjustive factors.
The husband’s daughter’s, their partners and the husband’s grandson lived at B Street for years. The wife’s younger children, Ms Q and Mr R, each stayed for three months in 2017. The husband deposed that Ms Q and Mr R were provided for by him. The wife deposed that the husband’s children did not pay rent or any outgoings in relation to their accommodation or board. The hospitality extended to the parties’ adult children respectively is not a matter which falls within the Full Court’s reasoning in Robb and Robb because those children were adults and their parents did not have a responsibility to provide for them.
Having regard to the above I find that there should be an adjustment for future factors and also the wife’s contribution to the care of G and that it is just and equitable that the wife receive a further $500,000 or 4% in that respect.
A JUST AND EQUITABLE ALTERATION OF PROPERTY INTERESTS
The wife’s entitlement to an alteration of property interests is found by me to be in the amount of $1.5 million or approximately 12% of the total superannuation and non-superannuation property interests. From that amount there must be deducted the value of assets and liabilities to be retained by her.
The wife retains her jewellery of $4,400, her artwork at $53,000, her household contents at $15,000, her motor vehicle at $13,500, her cash at bank at $8,000 and paid legal costs of $76,000. She retains superannuation of $1,669. Her liabilities are $23,358 which equates to a keep of $90,811. I calculate the payment due from the husband to the wife at $1,409,189.
Counsel for the wife tendered a minute of order sought complete with default provisions. Counsel for the husband did not object to the form of the order. I will follow that drafting subject to making it clear that the parties have liberty to apply in relation to implementation of this order and difficulties therewith.
After payment to the wife of her entitlement the husband will retain non-superannuation assets of $9,175,421 and his superannuation interest of $1,947,378. The husband may not be able to satisfy the wife’s entitlement from cash reserves but he will have a capacity to borrow or sell.
I am satisfied that the payment of $1,409,189 is an appropriate alteration of property interests and just and equitable within the meaning of s 79(2).
SPOUSAL MAINTENANCE
The wife also seeks that the husband pay her a sum of $1,000 per week from the date of the final hearing until such time as she receives her funds pursuant to a final alteration of property interests. That is, $1,000 a week from 31 August 2022 pending compliance with any lump sum payment pursuant to a final alteration of property interests. She submitted a minute of order to that effect (exhibit “W7”).
Counsel for the husband submitted that the wife’s application “wasn’t expressed as a maintenance order”. It does not refer to the head of power but counsel for the wife referred to it as a maintenance order in oral submissions. It was further submitted that the order was “not identified in the body of the affidavit supporting the application”. That may be the case but the husband had notice of it since 26 August 2022. I permitted counsel for the husband to reopen his client’s case for the purposes of asking the wife’s questions relating to her application for maintenance. He did so.
Having regard to the above discussion, in relation to s 75(2) factors I am satisfied that the wife’s weekly living expenses are $625 plus an allowance for rent or accommodation. The wife’s evidence was that she looked at numerous properties offered for rental and $850 for her residence in City S was the best opportunity. I find the wife’s living expenses to be $1,475 per week.
Insofar as the wife has only sought $1,000 per week, she cannot recover more. I do not know whether the wife is currently employed and if so what income she receives. I suggested to counsel for the husband that there be an order reducing the husband’s liability of $1,000 a week by an amount referable to income derived from employment. The response of counsel for the husband was “I’ve never heard of such a thing. Her evidence, in any event, based upon her financial statement, would not entitle her to more than $600 a week 5 in any event. That was the mathematical result of her cross-examination.” In my view, that is not correct. As indicated I regard the wife’s expenses to include a reasonable allowance for accommodation.
Returning to the question of the wife’s income, in relation to property settlement, I could take the wife’s JobSeeker allowance into account. However, s 75(3) precludes me from having regard to the JobSeeker allowance, which is an income tested pension or benefit, in the context of spousal maintenance. Accordingly, when the evidence concluded, the wife had no income for spousal maintenance purposes.
Counsel for the husband conceded that the husband has the capacity to pay the sum of $1,000 per week. He said “Can I say this: if your Honour is inclined to make some monetary sum available to her, firstly, my client has a capacity to do that. There’s no issue about that because he has $500,000 in the bank. If your Honour was going to make an order I would invite your Honour not to make it by way of spousal maintenance because that can lead to abuse.”
I am satisfied is expressed as an interim order and it can be varied. It is not ideal but that it is proper to make provision for the wife by way of a spousal maintenance order of $1,000 per week. Any injustice which may arise because I do not have evidence of something that happened after the hearing was complete, such as the wife’s income position, can be remedied because the maintenance order, on balance, I think it is more proper to make an order in this form than to deprive the wife of funds when she needs them.
CONCLUSION
For the above mentioned reasons I make orders as set out at the beginning of these reasons.
In the event I have made some arithmetical error or omission that is rectifiable in accordance with the slip rule, the parties may come back to me. This is not an opportunity to re-argue either parties case but to rectify mistake in the implementation of my reasons.
COSTS
Either party can make an application for costs in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
I certify that the preceding two hundred and fifteen (215) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 8 August 2023
- AGLC
- Bambrick & Gorman [2023] FedCFamC1F 654
- Case
- [2023] FedCFamC1F 654
- Decision Date
CaseChat Overview and Summary
The court found that while neither party had given dishonest evidence, the wife's testimony was more reliable and less self-serving. The husband had significant carried-forward losses and owned properties with varying income potentials. The court also considered the wife's permanent injury, which affected her ability to work, and her medical report detailing ongoing discomfort and restricted function. The judge concluded that it was appropriate to make a spousal maintenance order for the wife, despite the lack of post-hearing evidence regarding her income. The interim order of $1,000 per week was deemed necessary to provide for the wife's needs, with the possibility of adjustment if required.
The court's decision included an interim spousal maintenance order of $1,000 per week for the wife, subject to correction of any arithmetical errors or omissions. The court also noted that either party could apply for costs according to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The judge emphasised that this was not an opportunity to re-argue the case but to correct any mistakes in the implementation of the decision. The court took into account the age, health, income, property, and financial resources of both parties, as well as the wife's permanent injury, in making its decision.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The husband has a lot of carried forward losses against which he can adjust income. The B Street property has an agreed value of $8,000,375 but does not produce much income. CC Property has an agreed value of $2 million but carries the majority of livestock and produces most of the income. I queried Counsel on the default provisions but Counsel for the husband did not pose any alternative to the default mechanism being exercised over the B Street property rather than CC Property. CONSIDERATIONS UNDER S 75(2) Section 79(4)(e) requires me to take into account the matters referred to in s 75(2) so far as they are relevant. The age and - state of health of each of the parties The husband is 63 years old and in good health. The wife is 67 years old. The wife relies on the affidavit of Dr X, surgeon filed 20 July 2022 annexing his medical report dated 18 May 2022. Dr X’s medical report was prepared pursuant to a letter of instruction sent by the wife’s solicitors on 19 April 2022. For the purposes of preparing his report Dr X assessed the wife on 26 April 2022. His report summarises the wife’s account of the injury including the treatment she received to date. At the time of the report the wife complains of “aching”, ”restricted movement”, “poor […] strength” as well as “occasional paraesthesia […] at night”. As to his clinical opinion on whether the wife suffers ongoing physical impairment as a result of the injury Dr X notes:-[The wife] does have an on-going, physical impairment as a result of the […] injury. She will have difficulty lifting, pushing and pulling more than 2 to 3 kg […]. She has difficulty lifting objects […]. These restrictions will be permanent. Dr X records that the prognosis in respect of any improvement in function is “poor”. Dr X’s report concludes that:-[The wife] suffered a significant injury […] with on-going, activity-related discomfort and restricted function. This restricted function will be permanent with the previously listed restrictions permanently in place, which may affect her ability to return to fruitful employment in the future […]. Dr X was not required for cross examination. I accept his evidence. The husband deposed to not being aware of the extent of the wife’s hand until he read Dr X’s report. The wife’s response, which was not challenged, was that “[Mr Bambrick] was well aware of the limitations […] following the injury. He re-employed the cleaner. He agreed to me having weekly appointments at my hairdresser. I did not start going back to [exercise] until 2018, three years after the accident. [W Pty Ltd] was hardly taxing on my [injury].” I find that the wife has a permanent injury. There is no suggestion of her seeking compensation from the husband under state law. This injury is a matter that I give weight to in deciding on any adjustment under s 75 (2). The income, - property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment.