Boseman and Boseman
[2020] FCCA 1470
•7 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BOSEMAN & BOSEMAN | [2020] FCCA 1470 |
| Catchwords: FAMILY LAW – PROPERTY – 22 year relationship/marriage – assessment of the husband’s claim that he should receive a substantial adjustment in his favour because of initial contributions, family gifts and an inheritance – where the wife raised a Kennon argument but where the evidence does not justify an adjustment in the wife’s favour because of the husband’s conduct – contributions to the non-superannuation pool assessed as 57.5% by the husband and 42.5% by the wife and to the superannuation pool as 50% by each – no s. 75(2) adjustment. |
| Legislation: Family Law Act 1975 (Cth), ss.75, 79 |
| Cases cited: Coghlan & Coghlan (2005) FLC 93-220 Kennon & Kennon (1997) FLC 92-657 Rosati & Rosati (1998) FLC 92-804 Stanford & Stanford (2012) FLC 93-495 Williams & Williams (1985) 10 FamLR 355 |
| Applicant: | MS BOSEMAN |
| Respondent: | MR BOSEMAN |
| File Number: | NCC 1819 of 2019 |
| Judgment of: | Judge Terry |
| Hearing date: | 25, 26 & 27 May 2020 |
| Date of Last Submission: | 27 May 2020 |
| Delivered at: | Newcastle |
| Delivered on: | 7 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hogg |
| Solicitors for the Applicant: | Joplin Lawyers |
| Counsel for the Respondent: | Mr Duane |
| Solicitors for the Respondent: | Gillard Family Lawyers |
ORDERS
Within 7 days of the date of this Order the parties shall do all acts and things and sign all documents necessary to disburse the net proceeds of sale of the real property known as and situate at A Road, Town B in the State of New South Wales currently held in the trust account of C conveyancers in the following manner and priority:
(a)To pay D Pty Ltd the following amounts:
i)$5,940.00 for the outstanding partnership invoice.
ii)$28,115.00 for outstanding BAS.
(b)To pay $784,413.08 to the wife.
(c)To pay $761,270.23 to the husband.
Within 28 days of the date of these Orders the parties shall do all acts and things and sign all documents necessary to dissolve the partnership known as Mr & Ms Boseman.
The wife shall at the request of the husband sign all documents required to transfer to the husband at his expense the whole of her right title and interest in Company E.
With respect to the interest of the member spouse MR BOSEMAN in the F Superannuation Fund (“the Plan”):
(a)As required by section 90XT (4) of the Family Law Act (1975) (“the Act”), whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of the member spouse, Mr Boseman from the interest of the member spouse in the Plan, the non-member spouse. Ms Boseman is entitles to be paid by the trustee of the Plan (“the Trustee”) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $72,122.00 and there shall be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this Order.
(b)The Order has effect from the operative time and the operative time is the fourth business day following the date of service of these Orders upon the Trustee.
(c)Having been accorded procedural fairness in relation to this Order, the Trustee is bound by this Order.
Except as otherwise provided for by these Orders, each party shall be solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders and that for this purpose:
(a)Bank, building society, credit union accounts and the like are deemed to be in the possession of the person whose name appears on the bank, building society or credit union’s records thereof.
(b)Insurance policies are deemed to be in the possession of the beneficiary thereof.
(c)Superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements.
(d)Shares, debentures, units in unit trusts and the like are deemed to be in the possession of the person in whose name they are registered.
Except as otherwise provided for by these Orders, each party is solely responsible for and shall indemnify and keep indemnified the other party against any obligation to pay any part of all debts and liabilities, including contingent liabilities, and including taxation liabilities (including capital gain tax liabilities) standing in their respective sole names at the date of these Orders, or payable by them from the date of these Orders.
For the avoidance of doubt each party shall pay the Capital Gains Tax arising from the partnership profit divided equally between the husband and the wife.
Each party shall sign any and all documents necessary to give effect to these Orders at the time expressly or implicitly required by these Orders or when reasonably required to do so by written notice received from the other party.
In the event that either party refuses or neglects to execute any deed or instrument required to be executed by these Orders within 14 days of a written request to do so, the Registrar of the Federal Circuit Court of Australia is hereby appointed pursuant to section 106A of the Family Law Act to execute such deed or instrument on behalf of such refusing or neglecting party and to do all acts necessary to give validity to the operation to the deed or instrument upon the Registrar being provided with verification of such refusal or neglect by way of affidavit.
IT IS NOTED that publication of this judgment under the pseudonym Boseman & Boseman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1819 of 2019
| MS BOSEMAN |
Applicant
And
| MR BOSEMAN |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Boseman and Mr Boseman seek property settlement orders following the end of their 22 year relationship/marriage.
The pool consists mainly of cash from the sale of the former matrimonial home, superannuation the bulk of which is in the husband’s name and shares in public companies the bulk of which are also in the husband’s name.
The parties agree that they should each receive some of the cash and that a superannuation splitting order should be made but they disagree about the percentage of the pool they should each receive.
The wife’s counsel proposed a 50/50 division. He acknowledged that the husband had assets before the relationship began and that he received gifts from his parents and a small inheritance from an uncle during the relationship but he submitted that there should be an adjustment in the wife’s favour because there had been family violence during the relationship and that when everything was weighed and balanced the court should find that contributions were equal.
The wife’s counsel noted that there was an income earning disparity between the parties but acknowledged that the husband had the care of the three children and did not press for an s. 75(2) adjustment in the wife’s favour.
The husband’s counsel submitted that the husband’s initial contributions and the amount he received by way of gifts and an inheritance were significant that the court should assess contributions to the non-superannuation pool as 70% by him and 30% by the wife. He proposed that contributions to the superannuation pool be assessed as equal and submitted that there should be no s.75(2) adjustment.
The evidence
The wife relied on her Amended Initiating Application, Financial Statement and Affidavit filed on 22 May 2020.
The husband relied on his Amended Response, Financial Statement and Affidavit filed on 22 May 2020 and the affidavits of Mr G, Mr H, Ms A Boseman and Mr I filed on 22 May 2020.
Mr G was not required for cross-examination. He is a retired solicitor who acted for the Boseman family when assets were sold and a partnership dissolved in 1999. His evidence was to the effect that the file containing records of those transactions had been destroyed.
All of the other witnesses were cross-examined.
The parties both proposed a superannuation splitting order and evidence was provided that procedural fairness had been given to the Trustee of the husband’s superannuation fund.
Background
The husband and wife met in Town J in January 1997 when they were 30 and 22 respectively. They commenced living together shortly thereafter, married on … 2000 and separated on 7 March 2019. They thus had a relationship/ marriage of 22 years.
The parties have three children, twins X and Y born on 2003 (17) and Z born on 2005 (14).
The parties commenced living together on a farming property in Town K Victoria owned by the husband’s parents. They worked on the property and in other jobs and in June 1998 they purchased a home in L Street Town K in joint names.
In October 1995, prior to the parties commencing cohabitation, the husband’s parents had gifted to him and his brother Mr B Boseman as tenants in common a property known as Property M (at Town K) and in November 1998 they gifted further properties to them namely Property N (at Town K), Property O and Property P.
There was conflict in the family and at or about the same time as the second transfers it was decided that the properties which had been transferred to the brothers would be sold and the farming partnership between the husband, his brother and his parents would be dissolved. The sales occurred in 1999 and from the sales and the dissolution of the partnership the husband received cash, plant and equipment and tools.
The husband’s parents retained two lots at Town K which they continued to farm.
The husband secured employment on a farm at Town Q and the husband and wife moved there. They were permitted as part of the husband’s conditions of employment to do some farming on their own account and the Mr & Ms Boseman Partnership was established.
In 2000 the parties sold their house in Town K and in 2002 they purchased a farm near Town R called “Property S” and they moved to this property. The children were all born after the parties moved to Property S.
Life on Property S was hard. The parties could not fully support themselves from this farming enterprise. The husband did some contract work to help keep the family going financially and then in February 2009 commenced employment in Town T. He began commuting between Property S and Town T and working on Property S when not working in Town T.
While the parties lived at Property S the wife cared for the home and children, worked on the property and did some off-farm work.
In 2010 the wife and children moved to Town T and in 2011 the parties sold Property S together with its stock, plant and equipment.
In August 2013 they purchased a property near Town T which they called Property U. The husband continued to work in the mines and worked on Property U when he was not doing so. The wife did some work on Property U and was otherwise engaged in home duties and working on the property until 2014 when she also began working casually in a shop in Town T.
The parties separated on 7 March 2019 when the wife left the former matrimonial home and on 17 June 2019 the wife filed an application for a property settlement.
The children remained with the husband after separation and are estranged from the wife.
Property U was placed on the market soon after the parties separated and settlement of the sale of the property took place on 14 April 2020. The proceeds of sale are in trust pending the resolution of these proceedings.
At the time of trial the wife was living and working in Victoria.
The assets, liabilities and superannuation
The assets are as follows:
Description
Ownership
Value
Proceeds of sale of A Road (inclusive of the sale of plant and equipment and stock)
Joint
$1,545,683.31
Agreed value of plant and equipment (including Utility) to be retained by the husband[1]
Husband
$163,592.00
2006 motor vehicle
Wife
$500.00
V Shares x 305
Wife
$11,560.00
CBA shares x 2,136
Husband
$127,306.00
W Shares x 942
Husband
$3,702.00
AA Shares x 1,960
Husband
$3,881.00
BB Shares x 1000
Husband
$2,580.00
CC Shares x 1,000
Husband
$3,120.00
DD Shares x 942
Husband
$3,682.00
EE Shares x 532
Joint
$3,048.00
Guns x 3
Husband
$1,500.00
FF motor vehicle
Husband
$900.00
GG motor vehicle
Husband
$3,000.00
Total
$1,874,054.31
[1] The husband bid for but did not pay for these items at the clearing sale.
In her affidavit the wife complained that the husband refused to include in the balance sheet some items such as a quad bike which he claimed belonged to X and she initially sought to have these items included in the pool. They are worth a modest amount in proportion to the pool as a whole and the wife did not pursue this at trial.
In her affidavit the wife queried whether the husband had any long service leave or holiday entitlements and complained that he did not provide information about them. These entitlements are not normally included in the balance sheet unless there is very clear evidence that they are likely to be cashed out rather than taken as paid leave. There was no such evidence and the issue was not pursued at trial.
The parties have the following liabilities:
Description
Ownership
Value
Accountancy Fee – Partnership
Joint
$5,940.00
GST – Partnership
Joint
$28,115.00
Total
$34,055.00
The husband said that he might incur capital gains tax if he sold some of his shares and that he might have to sell them to acquire another property depending on the amount he received from the property settlement. However he provided no information about what sort of property he intended to buy, how much he might spend and whether he had considered borrowing rather than selling his shares. He also provided no information about what the CGT might be and this is too speculative for me to do anything with.[2]
[2] Rosati & Rosati (1998) FLC 92-804
The parties both have a CGT liability arising out of the sale of Property U. The husband said that he had received advice from an accountant that the amount they would be required to pay would be about the same. The wife said that the figure was about $65,000.00. Both parties asked me to make an order that they be responsible for paying their CGT when it was assessed.
The parties have the following superannuation:
Description
Ownership
Value
HH Superannuation
Husband
$221,431.00
HH Superannuation
Wife
$77,187.00
Total
$298,618.00
The parties have non-superannuation assets worth $1,839,999.31 and superannuation worth $298,618.00, a total of $2,138,617.31.
The applicable law
S.79 (1) of the Family Law Act 1975 empowers the court to make such orders as it considers appropriate altering the parties’ interests in property.
S.79 (2) provides that the court shall not make an order under this section unless it considers that it would be just and equitable to do so.
In Stanford & Stanford[3] the High Court stressed that when an application for a property settlement was made the court must first identify the parties interests in property and then consider whether it was just and equitable to make an order altering those interests. It stressed that this question could not be answered simply by considering whether a party had made contributions as set out in s. 79(4) of the Family Law Act.
[3] Stanford & Stanford (2012) FLC 93-495
I am satisfied that it is just and equitable to consider making property settlement orders in this case as it clearly comes within the following situation referred to in Stanford:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship and the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
I intend to take the usual steps to resolve the question of what particular alteration of interests would be just and equitable and those steps are:
i)to assess the contributions of the parties under s.79(4)(a), (b) and (c) and to express those contributions as a percentage;
ii)to consider the matters in s.79(4)(d), (e), (f) and (g), which includes the matters in s.75(2) so far as they are relevant, and determine whether any adjustment should be made as a result to the contribution based entitlements;
iii)to consider the effect of those findings and resolve what orders are just and equitable in all the circumstances of the case.
CONTRIBUTIONS
The basis of the assessment of contributions
The wife’s counsel made submissions on the basis that the court would be assessing contributions to a single pool of assets.
The husband’s counsel seemed to be taking the same tack, because in support of his submissions about the extent to which the husband’s contributions exceeded the wife’s he relied on an aide memoire which included superannuation in the list of the husband’s initial contributions.[4]
[4] Exhibit “H”.
However after maintaining at the end of his submissions that there should be no adjustment in the wife’s favour for s. 75(2) matters he submitted that the non-superannuation pool should be divided as to 70% to the husband and 30% to the wife and that the superannuation pool should be split equally.
I intend to refer to all the assets including superannuation in the findings about contributions which follow but there is an attraction to a contributions to the superannuation and non-superannuation pool being assessed separately. A splitting order is sought and in Coghlan & Coghlan[5] the Full Court suggested that a separate assessment of contributions was preferable in that case. In addition the superannuation pool unlike the non-superannuation pool has been minimally impacted on by contributions made by the husband alone. I therefore intend to assess contributions to each pool separately.
[5] Coghlan & Coghlan (2005) FLC 93-220.
Initial contributions
The wife was about 22 when cohabitation commenced and did not have any significant assets. She had a Utility which was later traded for $5,000.00 but she agreed that she owed her grandfather $3,000.00 for the vehicle.
The husband was 30 and had the following assets:
Description
Value at the commencement of cohabitation
50% share of property at Town K “Property M” which had been gifted to him and his brother Mr B Boseman by their parents in October 1995.
Not known
Shares:
a. 1,087 shares in Commonwealth Bank of Australia
b. 98 shares in AA Shares
c. 942 shares in W Shares
d. 1,000 shares in BB Shares
e. 1,000 shares in CC Shares
f. 4,524 shares in KK
g. Shares sold by the husband during the relationship
Not known save that the CBA shares were worth about $15,815.85[6]
Savings
Disputed
Superannuation
Not known
Total
Not known
[6] I have calculated this using the Dividend Reinvestment Statement for 30 June 2017 which the husband provided for these shares.
There was no evidence of the value of Property M in 1997. The husband’s counsel included it at an amount derived from its sale price in 1999 but I do not accept that this is appropriate.
There was no evidence of the value of the husband’s shares in 1997 save that the husband included in his tender bundle a dividend reinvestment statement for the CBA shares dated August 2007 which is sufficiently proximate to the date of commencement of cohabitation for me to fix a value for them.
The husband said that he had savings of between $30,000.00 and $40,000.00 and that he used this money to buy furniture and furnishings, pay $3,000.00 to the wife’s grandfather to pay off the utility she had bought just after she met the husband, buy the wife some V Shares and pay the deposit for the purchase of L Street Town K. He had no documents to support this claim or cast a colour of credibility on this evidence.
The wife said that her recollection was that the husband had savings of between $10,000.00 and $15,000.00. She also had no documents which supported her claim or cast a colour of credibility on it.
I cannot make a finding on the balance of probabilities about the amount of the husband’s savings in 1997. I do not consider that either party was trying to be deliberately untruthful but they both gave evidence about a range of possible amounts which suggests they are reconstructing and do not really remember and there is a considerable risk that their memories of things which occurred 23 years ago are faulty and that they might have readily adopted the position which most favoured their case. The best I can say based on the wife’s admission against interest is that the husband had savings of between $10,000.00 and $15,000.00.
The husband admitted that he did not know how much superannuation he had in 1997. His solicitor submitted that the court should use as a yardstick the fact that he rolled over $20,351.00 into another fund in August 2011 but that does not allow me to make a finding about how much superannuation he had in early 1997.
Acquisition of property by the parties during the relationship
The parties purchased three real properties during their relationship all of which were purchased in joint names.
In 1998 they purchased L Street Town K. The wife said that they paid $145,000.00 and borrowed about $120,000.00. The husband said that the purchase price was $130,000.00 and that he used his savings to pay the deposit. I cannot resolve the issue of the purchase price, the loan amount or the amount the husband contributed from savings in the absence of documentation.
L Street Town K was sold in about 2000 for $130,000.00 according to the wife or about $125,000.00 according to the husband. Nothing turns on this small discrepancy.
In January 2002 the parties purchased Property S for $490,000.00.[7]
[7] Annexure I to the husband’s affidavit
The husband said that they borrowed $400,000.00 and this is backed up by the Mortgage document he provided.[8] He also said that the Town K sale proceeds and the cash he received from his inheritance went into paying for the property. He did not put a figure on this and it is unclear to me whether the $400,000.00 which was secured against the property was all used to pay the purchase price or whether it included in a line of credit to assist in running the farm.
[8] Annexure I to the husband’s affidavit
The husband said that after Property S was purchased some of his “early inheritance” also went into paying off a loan the parties took out for a tractor, buying fertiliser, putting lime out to improve the pH of the soil and improving the home and land at Property S. This may have happened but he provided no documentary evidence to allow me to put a value on these contributions.
In or around 2012 the parties sold Property S and the stock and equipment for about $1.3m and received about $1.2m net.
In or about 2013 the parties purchased a property at Town B which they called Property U. They paid $1.75m and borrowed around $1m on an interest only loan for 5 years.
Financial contributions by the husband alone
In late 1998 the husband and his brother Mr B Boseman owned four rural properties as tenants in common as a result of gifts from their parents. In 1999 it was decided that the family partnership would be dissolved and that these properties and associated plant and equipment and stock would be sold.
The husband said that the four properties sold for $454,560.50 in total. The value of one of the components of this, the amount received for 36B, was an estimate by the husband but the wife did not quibble with this at trial and accepted that this was the amount received for the properties.
The husband said that he also received plant and equipment, tools and livestock. He claimed to have received in total:
Description
Value
Cash
“approx.” $250,000.00[9]
Machinery
“around” $50,000.00
Tools including generator and compressor
$12,000.00
800 livestock @ $100.00 per head which were trucked to Town Q
$80,000.00
A further 400 livestock kept on his parent’ farm @ $100.00 per head
$40,000.00
Total
$385,668.00
[9] Husband’s affidavit paragraph 48, noting that this includes the proceeds of sale of the property the husband owned when the relationship commenced.
The husband provided no evidence to support his claim that he received “approx” $250,000.00 and the wife said that it was her recollection that he received $180,000.00.
The husband’s claim that he received “approx” $250,000.00 has a strong flavour of reconstruction based on the sale prices of the properties. There is a risk that it is wrong and that there were costs or loans which had to be repaid which reduced the cash the husband received.
The wife provided no foundation for her figure either but it is an admission against interest and the husband must be credited with introducing $180,000.00 cash.
The husband said that $100,000.00 of the cash was used to pay off the mortgage secured over L Street Town K, $27,000.00 or $28,000.00 was used to purchase a motor vehicle and that a motor cycle and chainsaw were also purchased. The wife did not quibble with this evidence.
The parties were able to do some farming on their own account after they moved to Town Q and the husband said that some of the money was also used to purchase cows. He also said that some of it was used to buy stock and other items for the Property S property in 2003. The wife also did not quibble with this evidence but the husband was not able to put a figure on how much of the cash he received was used in this way.
The figure the husband gave for the value of the plant and equipment was an estimate. In support of his estimate he referenced a valuation which was done in November 1998 before the properties were placed on the market. However that does not by itself established that the estimated figures in the table in paragraph 48 of his affidavit are correct.
The wife said that that it was her recollection that the machinery was purchased by the parties using their share of the cash. She provided no foundation for this assertion but neither party had any paperwork to back up their claims and it is impossible for me to say that the recollection of one is more reliable than the recollection of the other.
I cannot make a finding about the value of the machinery and other items or about whether they were something additional the husband received or whether they were purchased by him from a clearing sale as happened when Property U was sold in 2019.
The husband did not provide any foundation for his estimate of the value the tools and the wife did not agree with his estimate and put forward her own.
The husband’s counsel submitted that the court should accept the husband’s estimate and place weight on the fact that he would know better than the wife what the tools were worth but the husband did not lay that foundation in his affidavit for the value he came up with and I cannot be sure that the figure is accurate rather than a convenient reconstruction.
The wife’s admission against interest that the tools were worth $5,000.00 is all that I can rely on. They could have been worth more but I simply cannot be satisfied of that on the balance of probabilities.
The wife disagreed about the number of livestock received. She said that the parties received 500 livestock and that 100 were transported to Town Q and 400 were left behind at Town K and remained there until transported to Property S when it was purchased in 2003.
In support of his claim that 800 rather than 100 livestock were transported to Town Q the husband relied on the evidence of Mr II, a carrier. Mr HH said that he remembered transporting around 700 livestock to Town Q. It was clear from cross-examination that his memory of the event which happened twenty years ago and which had no particular reason to stick in his mind was very limited. I accept that he gave evidence in good faith but I cannot place weight on his evidence.
The husband also provided no foundation for his claim that the livestock were worth $100.00 a head in 1999.
The wife kept the books of the Mr & Ms Boseman partnership after the parties moved to Town Q and I cannot simply assume that the husband’s evidence about the livestock is likely to be more reliable than hers.
The husband said that after he and the wife left Town K they paid for the cost of running the farm the husband’s parents continued to own and that they retained the profits.[10] However this was a contribution by both parties.
[10] Husband’s affidavit paragraph 65
In May 2002 the husband received some money following the death of his uncle Mr C Boseman. There was a dispute about whether it was an inheritance or another gift from his parents who inherited the money but there was no dispute that he received it. There however a dispute about the amount. The husband said that he received $50,000.00. In her affidavit the wife said that he received between $20,000.00 and $50.000.00. In final submissions she held out for $20,000.00.
No paperwork was available to verify the amount received and neither party provided any evidence to support a finding that their recollection should be preferred but the wife admitted in cross-examination that the husband told her during the relationship that he had received $50,000.00 and I am satisfied on the balance of probabilities that this was the amount the husband received.
In 2003 the husband’s parents sold their two remaining blocks at Town K. The husband claimed that they gifted the money they received to him to him together with a tractor and that he received:
Description
Amount received on sale
Lot 1 JJ Avenue, Town K
$128,497.63
Lot 2 JJ Avenue, Town K
$125,863.07
Tractor
$10,000.00
Total
$264,360.70
The figures the husband gave for the amount received from the sale of the two lots are taken from the settlement statements prepared when the properties were sold in July 2003.
The husband said that he applied this money to reduce the Property S loan.
The husband did not produce any paperwork which established that this amount was ever deposited into the Property S mortgage account. At trial he provided a mortgage loan statement which consisted of a single line showing that the balance of the Property S loan at 29 August 2003 was $92,043.37. His counsel asked the court to infer that the loan balance would not have been that low if the parties had not tipped a substantial amount into paying off the mortgage.
No explanation was given for why mortgage statements for a more extensive period than just May to August 2003 were not subpoenaed.
The wife disputed that the husband’s parents gave him the sale proceeds of their remaining Town K properties. She said that she did the books for the Mr & Ms Boseman partnership which the parties commenced operating after they moved to Town Q and would have known if such an amount had been received.
The wife said that the fact that the loan balance was low in August 2003 did not mean anything. She said that the loan balance always fluctuated significantly because the parties would draw on the mortgage to make purchases and meet the running costs of the farm and then pay large amounts off it when they sold stock.
The husband’s mother gave evidence that when the Town K properties were sold she and her husband gave “about $250,000.00” to the husband as his inheritance instead of him having to wait until they died but her assertion was not backed up with any detail to give it a colour of credibility, such as whether their financial circumstances at the time made the gift feasible.
The husband and his mother could be telling the truth but the wife’s claim about why the loan balance was low in August 2003 2003 is credible. She made other admissions against interest but she did not admit this and I cannot be satisfied on the balance of probabilities, based on the husband’s bare assertion and the evidence of his mother, that such a large sum was gifted to the husband by his parents.
It is also nothing more than bare assertion that a tractor was received at this time and no evidence to back up the husband’s claim about its value.
The husband said that when his parents sold their remaining land at Town K the 400 livestock he had left behind at Town K were trucked to Property S. The wife did not dispute this evidence.
The husband said and I accept that the shares he currently owned were the shares he owned prior to cohabitation augmented by dividend re-investment where that was possible and this was not in dispute.
The CBA shares, by far the largest parcel, were worth $127,000.00 at trial and were worth about $15,600.00 in 1997. The value of the parcel has increased by about $112,000.00 over the course of 22 years as a result of market forces and dividend reinvestment.
The husband said that the dividends he could not reinvest were used for farm or family expenses. This is credible but there was no evidence about how much money was involved.
The husband said that he also sold some shares during the relationship which netted $30,000.00 which was used to purchase a Utility. He also said that $6,786.00 which he received after the KK shares were acquired by Vitera was used for farm and living expenses. The wife did not dispute this evidence.
The parties employment and non-financial contributions
During the relationship the husband worked on his parents’ farm, then the livestock farm in Town Q, then the parties’ farm near Town R and then on Property U. Between 1997 and 2009 he did contract work from time to time.
In 2010 the husband obtained a job in the mines and he applied himself vigorously to that just as he had done to other work throughout the parties’ relationship.
The husband complained that he had to work hard and had no real break. I accept that this was the case and it was essential prior to the sale of Property S but by the time Property U was purchased the husband was earning a very good income in the mines and purchasing Property U was a lifestyle choice. From that point on the husband chose not to give himself a break or to put it differently, he preferred to run a farming enterprise to doing other leisure activities.
The wife had a variety of paid employment during the relationship. When she met the husband she was working as a labourer in a work shed. After the parties moved to Town K she began to train as a healthcare sales assistant. When the parties lived in Town Q she worked part time for a transport company and as a receptionist
The wife gave evidence about assisting the husband’s parents on the farm when the parties lived at Town K and about the work she did on the farm at Town Q. She also described her work on Property S. She said that because of the drought the husband had to go back to work after they purchased Property S and that she was primarily responsible for farming duties when he was away. In December 2009 he obtained a job as an labourer in Town T and was only home about two days a fortnight and she said and I accept that she was primarily responsible for doing work on the farm. I accept the wife’s evidence in this regard.
I also accept that after the parties purchased Property U in August 2013 the wife was primarily responsible for the day to day running of the farm with the husband assisting on his days off.
The twins were born in 2003 and the wife was their primary carer. She also did the majority of the cooking, cleaning and other household tasks and she did the books for the partnership.
The wife was engaged in home duties and work on the farm between January 2011 when the parties moved to the Region LL and 2014 when she also began working in a shop. She built up her hours so that by the time of separation she was working 34.5 hours per week.
The husband made very limited concessions about the wife’s role on any of the farming properties. He preferred to emphasise the assistance he received from his parents. After they sold their remaining properties at Town K they moved close to Property S. The husband’s father helped on the farm and his mother helped in the house from time to time. There was credible evidence about her doing some painting at Property S.
I accept that the husband’s parents provided assistance between 2003 when Property S was purchased and 2011 when it was sold but this does not diminish the value of the wife’s contribution and the evidence about the assistance given by the husband’s parents does not lead to a conclusion that the husband’s efforts on Property S exceeded the wife’s.
The husband was unwilling to concede that the parties’ contributions during the relationship from their own efforts were equal. In his view the wife had the easier life. She was in the house, she was able to go into town and shop when she chose and she did not have do the hard physical work that he did. However there was no evidence that the husband changed nappies, did the washing up or made the beds and while he was working outside the wife was doing those things and had the primary care of the children and was also working on the properties and doing some off-farm work.
It is regrettable that the husband does not properly value the wife’s contributions but I am satisfied that contributions by the parties from their own efforts during the relationship should be assessed as equal, a conclusion the husband’s counsel did not argue against although he could not obtain instruction to consent to it.
The Kennon argument
In Kennon & Kennon[11] the Full Court recognised that perpetration of family violence by a party can be relevant when assessing contributions. Fogarty & Lindenmayer JJ said as follows:
The Court in assessing contributions can take into account that where there is a course of violent conduct by one party toward the other during the marriage, which is demonstrated to have had a significant adverse impact on that party’s contributions to the marriage or, put another way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within section 79.
[11] Kennon & Kennon (1997) FLC 92-657
Fogarty & Lindenmayer JJ emphasised however that:
It was essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact on the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass conduct related to the breakdown of the marriage.
The wife alleged that on numerous occasions during the relationship the husband verbally abused her calling her a dirty slut, a useless cunt and the laziest cunt he knew and verbally abused her when the water ran out or she was not instantly on hand when he thought she should be. She alleged that for an unspecified period of time while the parties lived in Town Q the abuse was daily. She said that the husband accused her of having an affair.
She alleged that the husband bashed her dog with a metal pole and flogged and kicked other dogs.
The wife said that after the parties moved to the Region LL the verbal attacks started again. She alleged that the husband regularly called her a useless cunt, told her she was crazy, accused her of having an affair with her boss, said that he hated her and drew the children into his campaign of abuse.
The husband denied that he verbally abused and denigrated the wife as she alleged but his behaviour immediately after the wife left the marriage gives a colour of credibility to her claims. The husband went to the wife’s workplace and began yelling at her and called her a “dumb cunt” repeatedly. The centre manager was unable to calm him down and security had to be called because he refused to leave. After he was eventually removed he was banned from attending the centre for six months.
The wife’s claim that the children began copying the husband and abusing and disrespecting her is also given a colour of credibility by a disgraceful letter which X sent to the mother on 3 May 2019 in which she referred to her mother as a dumb bitch and in a page of abuse said among other things as follows:
…u r actually pathetic all because dad called u a dumb cunt u seriously need help and not from that shitty psychologist you have been seeing…[12]
[12] Wife’s affidavit paragraph 107
I fear for X’s future if she thinks that anything justifies her sending such a letter to her mother.
The wife was a credible witness and I accept her evidence about the verbal abuse she endured.
The husband’s counsel submitted that when the parties met they were working and that colourful language was used in that workplace and the way the husband spoke to the wife was within a range of acceptable behaviour in that workplace context.
I do not accept that. Apart from the fact that the parties were not in a workplace when all this abuse occurred, there is a difference between using swear words (which both parties did on one occasion when giving evidence) and verbal abuse and vile denigration.
It is important to note that since Kennon was decided in 1997 the definition of family violence in the Family Law Act has been greatly expanded. It includes “repeated derogatory taunts” and other kinds of coercive and controlling behaviour. I am satisfied that on occasions during the marriage, for example on the occasion when the husband verbally abused the wife over a prolonged period of the day because he was displeased that she had gone into town and had not performed what he considered to be her duties on the farm in the time and in way he wanted them performed, that the husband committed acts of family violence in the form of repeated derogatory taunts.
The difficulty for the wife however is that she did not give any evidence that this behaviour had a discernible impact on her capacity to contribute during the marriage. She did not allege that it made her unable to carry out day to day tasks or caused her to become depressed and anxious and unable to contribute. She has not established that the husband’s behaviour is relevant because it had a discernible impact on her contributions during the marriage.
Post-separation matters
Since separation the children have lived with the husband and spent no time with the wife.
It is unclear to me when a child support assessment commenced but the current assessment is $36.92 per week and it does seem that the wife has paid little child support since separation.
This needs to be placed into context however.
After the incident at the shopping centre the wife went to the police about ongoing issues between her and the husband. She told them that she wanted the husband and children to stop spreading rumours about her but did not want the police to take any action. In her affidavit she said that she had contemplated applying for an ADVO but was frightened to follow through with it and I accept that evidence. The wife then left her job and relocated to a new address and was unemployed for a period of time.
The wife has not willingly abandoned the children they have bought into the husband’s view that she was having an affair, was lazy and that she recklessly spent money after separation on unnecessary items such as a pair of new blue jeans. Their views about their mother and the vituperative way they express them echo the husband’s views and his way of talking to his wife.
The wife has also had a limited capacity to provide financial support for them.
The husband’s counsel submitted that this did not matter and that regardless of how it had come about, the fact was that the husband had been solely responsible for the children since separation and this should be taken into account in assessing contributions.
The first problem with this is that the husband assertion in his affidavit that he has been solely financially responsible for the children since separation is not in fact correct. Until February 2020 the husband paid some of the children’s expenses from the partnership account. In a letter to the wife’s lawyers dated 15 May 2020 he said that between October 2019 and January 2020 he used the partnership account to pay for diesel to transport X to school in Town MM, clothing, footwear and haircuts for X, expenses related to X’s school formal including purchasing an item of jewellery as a gift, boots for the children, Y’s school expenses and boots, food and clothing expenses for Y & Z and driving lessons for the children.
The second problem with it is that the husband emerged from the marriage with a strong income earning capacity and continued to earn three times what the wife was earning in the post-separation period and he was the person who had the capacity to financially assist the children. The wife suffered a period of disruption and when she did obtain work her income was such that when coupled with the husband’s income it led to a modest child support assessment.
I do not accept that the husband’s care of the children since separation means that there should be an adjustment in his favour.
The husband continued to manage Property U until it was sold in February 2020. This involved not only personal effort but expense but he drew on the partnership account to meet the expenses. In the letter to the wife’s solicitors dated 15 May 2020 he itemised numerous expenses which were paid using the partnership account including maintenance of the pool, maintenance of motor bikes, cutting the farm tracks in preparation for the sale of the farm, purchasing shock absorbers for the farm ute and purchase of bullets to name a few.
In the three months between October 2019 and 10 January 2020 the husband used $32,474.32 from the farm account to pay for costs associated with the farm and items for the children.
I accept that the husband worked hard on Property U between separation and its sale and also I accept that his mother helped out with some gardening and cleaning and in generally preparing the property for sale. However the wife contributed to the costs of running and maintaining the property via use of the partnership account and she was not in a position to work by the husband’s side due to the acrimonious separation.
The husband complained that the wife used $38,000.00 from the farm account to buy clothing, furniture and personal items after separation and to pay insurance, utilities, car rental, mobile phone and other expenses.
The wife said that used some of the money to pay a Visa Credit Card which did not just relate to her expenses, $5,000.00 to help set up a rental after she left the former matrimonial home and other monies needed to meet expenses following separation.
I am satisfied that the wife felt a genuine need to leave the Town T area after the incident in May 2019 and that any money she used from the farm account was used for necessities.
The husband seemed to be asserting that he should receive credit because the wife wanted to sell livestock in May 2019 and he opposed the sale and preferred to keep the livestock and feed them and the amount received for the livestock when they were sold in September 2019 was about $700.00 more per head than would have been received in May 2019. The affidavit of Mr I was directed to this issue.
However that is not relevant to an assessment of contributions. The livestock had to be maintained and fed between May and September which would have involved some cost which was paid from the partnership account but most importantly, if the livestock had sold for less in September 2019 because of a decline in the market the husband would not have been willing to solely bear the loss. By good fortune they sold for more but the husband is not entitled to an adjustment in his favour because his judgment call turned out to be correct.
The husband’s superannuation must have increased post-separation but no submissions were made about this and it is not a matter which would affect the contribution finding. After separation the husband continued to work in the same job he had held for the previous ten years. The wife did not have the same good fortune. Her superannuation may also have increased but it would not have increased by nearly as much given her lower income earning capacity and her period of unemployment.
I do not accept that anything which happened in the post separation period means that there should be an adjustment in the husband’s favour in respect of contributions.
Assessment of contributions overall
There is considerable merit in the final position by the husband’s counsel that contributions to the superannuation and non-superannuation pool should be considered separately and I intend to adopt this course.
The husband’s contributions to the non-superannuation pool clearly exceeded the wife’s in light of his initial contributions, the gifts he received from his family and the money he received from his Uncle Mr C Boseman and the wife’s counsel conceded as much. He submitted that the Kennon claim pulled the matter back to a 50/50 finding but the Kennon claim has not been made out.
The husband’s counsel submitted that contributions should be assessed as 70/30 in the husband’s favour and in support of this he prepared a table which purported to establish that the husband either had at the beginning or brought in $986,707.70[13].
[13] Exhibit H.
If the superannuation is removed this reduces to $966,356.70 but that represents roughly half the value of the non-superannuation pool.
There are problems with the table and the first is that even taking the husband’s case at its highest some of the figures are rubbery.
The husband’s counsel assigned a value of $46,332.00 to Property M at Town K which the husband owned when cohabitation commenced but this was based on the amount the property sold for in 1999. There was no evidence of its value in 1997.
The husband submitted that the shares he had in 1997 should be treated as having a value of $148,210.00 but this is calculated by multiplying the number of shares he then had with the current value of those shares. The CBA shares were worth $14.55 per share in 1997. They are now worth $59.60 per share.
I accept that the current value of the shares has some relevance[14] but to include them at this value in the table of initial contributions is misleading.
[14] Williams & Williams (1985) 10 FamLR 355
Leaving aside the dispute about the number of livestock the husband obtained in 1999 he estimated that the livestock were worth $100.00 per head but provided no foundation for this opinion. He also provided no basis for his estimate of the value of the machinery, grain and tools which he said he received in 1999.
That difficulty was recognised by the husband’s counsel in submissions and his fall-back position was to ask the court to have regard to the fact that the husband did receive machinery, grain, tools and livestock.
The second problem for the husband is that I cannot resolve in his favour the disputes about the amount he had in savings, the cash he received in 1999 and whether he received a cash gift from his parents in 2003.
The wife’s counsel submitted that all that the court could be sure about was that the husband had savings of about $10,000.00 to $15,000.00 and owned shares of indeterminate value when the relationship began, received $180,000.00 from the sale of the Town K properties in 1999, received tools worth $5,000.00, received up to $50,000.00 on the death of his uncle Mr C Boseman and received 500 livestock upon the sale of the Town K properties. He would also be obliged to concede that the husband had $15,800.00 worth of shares at the commencement of cohabitation.
On the wife’s case far from the husband making lump sum contributions to the value of $966,356.70 he made lump sum contributions of $265,800.00. As the wife did not strongly argue against the husband’s claim that the livestock were worth $100.00 per head I will for the sake of the exercise add $50,000.00 to flesh this out which gives a rough figure of $315,800.00.
The husband also had other shares at the commencement of cohabitation which I cannot put a value on.
That is all that I can be comfortably satisfied of on the balance of probabilities and the issue then is how to factor that in to an overall assessment of contributions.
The husband proposed a 70/30 finding in respect of contributions but even if I had been able to find that the husband’s unmatched financial contributions were worth $818,146.70[15] a 70/30 division of the assets would not have been appropriate. The non-superannuation pool is worth $1,839,999.31 and this would result in the husband receiving $1,287,999.52 and the wife $551,999.79 and would have resulted in a differential of $735,999.73 between the parties’ entitlements.
[15] Exhibit H adjusted by removing the superannuation and the current value of the shares and adding the value of the CBA shares in 1997. The figure would still be inaccurate because it includes Property M Town K at its 1999 but is sufficiently accurate to demonstrate the problem with the husband’s proposal.
The wife’s counsel submitted that the husband’s unmatched contributions merited an adjustment of 2% to 2 ½% but this would be manifestly inadequate. If applied to the non-superannuation pool it would give the husband an additional $36,799.99 or $45,999.98 and would result in a differential of $73,599.98 or $91,999.96 between the parties’ contributions.
In Pierce & Pierce the Full Court said as follows in the context of discussing the weight to be placed on an initial contribution:
In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home.
That case involved a 10 year relationship/marriage and contributions were assessed as 70/30 in the husband’s favour. The husband had $226,000.00 at the commencement of the relationship which was used to purchase the former matrimonial home and the wife had $11,500.00. When the parties separated they had assets worth about $319,000.00. The home which had been purchased for $235,000.00 was worth $260,000.00 at the time of the hearing and made up the bulk of the pool.
Contributions during the relationship were assessed as equal and the assessment of 70/30 in the husband’s favour was based on his initial contributions and his post-separation care of the children.
The parties in the case before me were married for 22 years. They both worked hard throughout that period in accordance with their aptitudes and abilities to provide financially and non-financially for their family and build up assets and the pool available for division is significantly greater than the amount the husband brought in or introduced from gifts and an inheritance.
During the first 6 years of the relationship the husband even on the wife’s case contributed something in the vicinity of $315,800.00 plus some additional shares. It was an important contribution because the money went into the acquisition and improvement of properties at Town K and Property S and the shares increased in value as a result of market forces and dividend reinvestment.
However the assets the husband introduced came in during the first 6 years of the 22 year relationship. During that 6 years and for the remaining 16 years the wife worked hard in the marriage, bringing up the children, doing work on Property S which on the evidence of both parties presented challenges, doing some off-farm work and supporting the husband in his decision to go to work in the mines and be away from home for much of each fortnight while the parties lived at Property S.
The non-superannuation pool is worth $1,839,999.31. An assessment of contributions as being 57.5% by the husband 42.5% by the wife would give the husband $1,057,999.60 and the wife $781,999.71 and result in a differential of $275,999.29 between the parties entitlements which I am satisfied is a just and equitable recognition of the husband’s additional monetary contributions insofar as I am able to confidently be satisfied about them.
Based on the findings I am able to make it could be considered generous to the husband but the husband’s initial contributions gave the parties a head start in property ownership which ultimately led to them making a very good profit on the sale of Property S.
The husband’s counsel proposed that contributions to superannuation be assessed as equal and that is appropriate. The husband made an initial contribution to this pool at the very beginning of the 22 year marriage but it is unclear how much that was and the remainder of the superannuation was all accrued either during the marriage or during the relatively short separation period.
This would entitle each party to superannuation worth $149,309.00.
S. 79(4) (d) (e) (f) and (g) matters
I am required to consider the matters in s. 79(4) (d) (e) (f) and (g) of the Family Law Act. The only relevant subsection is (e) which requires the court to have regard to the matters in s. 75(2) of the Act.
S. 75(2) matters
The wife is 44. She is employed as a shop assistant and earns $55,000.00 per annum.
The wife said that she had ongoing pain in her neck, shoulders and lower back and suffered migraines due to a quad bike accident in December 2013 which resulted in her fracturing vertebrae in her back. There was no evidence however that she had health issues which impact on her capacity to earn an income.
The wife said that she had not re-partnered. The husband tendered a photograph from Facebook showing the wife at a social event in Victoria with a man she knew in Town T. This by itself is not a reason to find that the wife has re-partnered.
On the basis of contributions the wife is entitled to non-superannuation assets worth $781,999.71. She has assets in her possession worth $12,060.00 which would entitled her to $769,939.71 from the money in trust.
The wife would also be entitled to superannuation worth $149,309.00
The wife has incurred legal costs of about $112,780.43 including $2,475.00 which was her share of the cost of a failed mediation. She has paid $5,000.00 to her solicitors and her parents paid the mediators fee. The balance will have to come from her entitlement to a property settlement.
The wife will also have to pay capital gains tax of about $65,000.00 arising from the sale of the Property U property.
The husband raised the issue of whether the wife might receive an inheritance in the future.
I can understand why the husband would consider it fair that this be taken into account when he has received money from his parents which is in the pool and it is something which could in certain circumstances be taken into account pursuant to s. 75(2) (o) which allows the court to take into account any fact or circumstance which the justice of the case requires to be taken into account.
However the wife’s parents are retired but are still active and travel extensively and the wife has two siblings. The wife said that it was her expectation that she would receive a share of their estate in due course but that their only asset was their home and there was no evidence to suggest otherwise.
It seems likely that the wife will receive an inheritance but her entitlement is unquantifiable and the date on which she may receive it a complete unknown and it is not a relevant consideration.
The husband is 53. He is employed as a skilled labourer. In his financial statement he said that he earned E$150,384.00 per annum. The wife said that his income was about $168,000.00 per annum. To the best of my recollection the issue was not explored at trial by means of requiring that payslips be provided and it is not of any great moment. On any view the husband earns a reasonably high income. He also receives some dividends from his shares.
The husband has been engaged in the same employment for 10 years. He said that he had some physical issues which might impact on his capacity to continue doing this work but this did not rise above bare assertion.
The husband has the care of the children and will continue to do so. Y left school in 2019 and commenced an apprenticeship. X, 17 and Z, 15 are at school and are enrolled at private schools as boarders. The husband said that the private school fees were expensive but having them attend those schools is his choice.
As at April 2020 the wife was assessed to pay $36.92 per week child support. That assessment is based on the wife earning $20,298.00 per annum but it also takes the husband’s income into account and while the assessment may increase if the wife is assessed on an income of $54,000.00 it may not increase by much.
The husband complained that the child support was not being paid. If it is not being paid it should be recoverable by garnishee if the wife is employed but the amount the wife is assessed to pay now or is likely to be assessed to pay in the future will not do much to defray the cost of supporting the children.
The husband has incurred legal costs of $64,222.21. He has paid $43,192.21 and said that the source of the funds was income and a loan from his mother. Presumably any balance will be recovered from his entitlement to a property settlement.
The husband will have to pay capital gains tax of about $65,000.00 arising from the sale of the Property U property.
Conclusion about s. 75(2) matters
The husband has an income earning capacity three times that of the wife and the wife has been hampered in being able to establish a strong income earning capacity by the role she took on in the marriage. She had also been disadvantaged by the parties’ moves to Town Q then Property S and then the Region LL. She was doing a healthcare traineeship in Town K for example and had to give it up.
As a result of the wife not having the same history of paid employment she has also not acquired much superannuation and she will not power ahead in the future in terms of income earning and acquisition of superannuation as the husband will.
The fact that the husband has continued in highly paid employment means that he has been able to pay some of his legal fees from income. The wife will have to pay nearly all her legal fees from capital.
The husband said that there should be no adjustment in the wife’s favour for s. 75(2) matters. He relied on the fact that he had the care of the children and that he was not likely to receive much child support from the wife in the future. It is also a relevant consideration that the husband is 10 years older than the wife and therefore has less time ahead of him to acquire assets and superannuation.
Nevertheless the children who remain financially dependent on the husband are 17 & 15 and an argument could have been made for a modest s. 75(2) adjustment in favour of the wife. However the wife’s counsel did not press it and I do not intend to make an s. 75(2) adjustment in favour of either party.
The orders
The appropriate course to formalise orders is first to deduct from the money in trust the debts to the accountant and for capital gains tax and divide the balance so that overall the parties receive 42.5%/57.5% of the net non-superannuation pool and 50% of the superannuation.
The wife is entitled to 42.5% of the non-superannuation pool ($779,445.58) and 50% of the superannuation pool ($149,309.00) a total of $928,754.58 and this will be made up as follows:
Description
Value
Cash from the proceeds of sale of A Road (inclusive of the sale of plant and equipment and stock)
$784,413.08
2006 motor vehicle
$500.00
V Shares x 305
$11,560.00
Wife’s superannuation
$77,187.00
Split from husband’s superannuation
$72,122.00
Accountancy Fee - Partnership
($2,970.00)
GST – Partnership
($14,057.50)
Total
$928,754.58
The husband will receive 57.5% of the non-superannuation pool ($1,060,553.73) and 50% of the superannuation pool ($149,309.00) a total of $1,209,862.73 made up of:
Description
Value
Cash from the proceeds of sale of A Road (inclusive of the sale of plant and equipment and stock)
$761,270.23
Plant and equipment (including utility) to be retained by the husband
$163,592.00
CBA shares x 2,136
$127,306.00
W Shares x 942
$3,702.00
AA Shares x 1,960
$3,881.00
BB Shares x 1000
$2,580.00
CC Shares x 1,000
$3,120.00
DD Shares x 942
$3,682.00
EE Shares x 532
$3,048.00
Guns x 3
$1,500.00
FF motor vehicle
$900.00
GG motor vehicle
$3,000.00
Superannuation
$149,309.00
Accountancy Fee - Partnership
($2,970.00)
GST – Partnership
($14,057.50)
Total
$1,209,862.73
The percentage division of the overall pool is about 43.5% to the wife and 56.5% to the husband.
In his Amended Response the husband proposed that Company E be sold and the proceeds distributed equally to the children. The wife did not consent to this order and no evidence was given about why this should occur and no submissions were made about it. I have included this investment as an assets of the husband. He will be at liberty to liquidate the asset and distribute the proceeds to the children if he wishes.
The husband sought an order that the wife provide to him an electronic copy of family photographs in her possession, return a USB disk containing photographs of the husband’s father and grandfather and return to the husband documents relating to the children including birth certificates and school reports and records.
In her affidavit the wife said that she had items in a storage shed in Region LL and that she believed that the children’s birth certificates may be in storage.
No submissions were made about the order proposed by the husband and there is a risk of enforcement issues if the husband believes the wife has items and the wife denies having them. I do not intend to make this order. The children can order copies of their birth certificates.
I am satisfied that this outcome is just and equitable. Each party will receive sufficient to pay their legal fees and to rehouse themselves and the outcome contains an appropriate recognition of the husband’s additional financial contributions insofar as I have been able to establish them.
I certify that the preceding two hundred and one (201) paragraphs are a true copy of the reasons for judgment of Judge Terry
Associate:
Date: 7 September 2020
Key Legal Topics
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Family Law
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Equity & Trusts
Legal Concepts
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Procedural Fairness
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Statutory Construction
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