Boston and Boston (No 3)
[2016] FamCA 1064
•12 December 2016
FAMILY COURT OF AUSTRALIA
| BOSTON & BOSTON (NO 3) | [2016] FamCA 1064 |
| FAMILY LAW – PROPERTY – final orders – where the wife seeks orders for full and final settlement of property – where the husband seeks opposing orders for the full and final settlement of property – where allegations made of non-disclosure of assets and relationships – where issues arise as to use of funds post separation – where detailed orders are made for property settlement. |
FAMILY LAW – SPOUSAL MAINTENANCE – where payments received from investment – where the spousal maintenance order is discharged.
| Family Law Act 1975 (Cth) s 72, 74, 75, 79, 83 Bevan & Bevan (2013) FLC 93-545 | |
| APPLICANT: | Ms Boston |
| RESPONDENT: | Mr Boston |
| FILE NUMBER: | ADC | 1946 | of | 2012 |
| DATE DELIVERED: | 12 December 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 5-7 October 2016 10-14 October 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | n/a |
| SOLICITOR FOR THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Birchall |
| SOLICITOR FOR THE RESPONDENT: | Norman Waterhouse Lawyers |
Orders
In full and final settlement of all claims between the husband and the wife for settlement of property pursuant to Part VIII of the Family Law Act 1975 (as amended) and spousal maintenance:
(1.1)On or before 10 February 2017 the wife shall pay to the husband the sum of FOUR HUNDRED AND TEN THOUSAND EIGHT HUNDRED AND TWENTY FIVE DOLLARS [$410,825.00] less any amount certified by the Child Support Agency as the arrears due and payable by the husband to the wife for child support as at 31 January 2017.
(1.2)On or before 10 February 2017 each of the husband and wife pay THIRTY THOUSAND ONE HUNDRED AND EIGHTY SIX DOLLARS AND FIFTY CENTS [$30,186.50] to the solicitors for the husband Norman Waterhouse Lawyers who shall hold the monies in an interest bearing trust account pending the assessment of capital gains tax on the sale of units in J Street Unit Trust which capital gains tax shall be paid equally by the husband and wife.
(1.3)On or before 10 February 2017 each of the husband and wife pay EIGHT THOUSAND FOUR HUNDRED AND SIXTY SEVEN DOLLARS AND EIGHTY CENTS [$8,467.80] to the Legal Services Commission of South Australia in payment of the costs of the Independent Children’s Lawyer.
(1.4)If payment is made pursuant to paragraph 1.1 hereof thereafter the wife shall be solely liable and responsible for any and all debts payable to her parents MR GG and MS GG and Company II.
(1.5)If payment is made pursuant to paragraph 1.1 hereof thereafter the husband shall be solely liable and responsible for any and all debts payable to his brother Mr BB.
(1.6)If payment is not made pursuant to paragraph 1.1 hereof on or before 10 February 2017 then paragraphs 1.1 to 1.5 inclusive do not apply and the following shall apply:
(1.6.1)both parties forthwith do all such things and sign all such documents to effect the sale of the property situated at I Street, Suburb K in the State of South Australia, being the whole of the land comprised and described in Certificate of Title Register Book Volume … Folio … (“the former matrimonial home”) including taking steps to obtain the removal of all and any caveats over the property;
(1.6.2)the sale of the property is to be on the following terms:
(a)the listing agent shall be as agreed between the parties and in default of agreement by 24 February 2017 then such agent be appointed as determined by the President of the Real Estate Institute of South Australia SAVE AND EXCEPT that Company HL shall not be appointed as agents for the purposes of the sale;
(b)the listing price for the property and method of sale of the property shall be as agreed between the parties and in default of agreement within seven [7] days of the appointment of the agent at such price and method nominated by the listing agent;
(1.6.3)the proceeds of sale of the former matrimonial home shall be paid as follows:
(a)in payment of costs of sale including agents fees and other costs and charges associated with the sale including but not limited to advertising costs and conveyancing fees;
(b)to discharge all mortgages registered by the ANZ Bank over the former matrimonial home;
(c)to pay SIXTY THOUSAND THREE HUNDRED AND SEVENTY THREE DOLLARS [$60,373.00] (representing unpaid capital gains tax to be assessed on the sale of the units of J Street Unit Trust) such sum to be retained in the conveyancer’s trust account pending the capital gains tax becoming due and payable PROVIDED THAT if the conveyancer does not consent to holding the sum then such amount to be paid to the solicitor for the husband Norman Waterhouse Lawyers who shall hold the monies in an interest bearing trust account pending the assessment of capital gains tax on the sale of units in J Street Unit Trust which capital gains tax shall be paid equally by the husband and wife;
(d)to pay the sum of SIXTEEN THOUSAND NINE HUNDRED AND THIRTY FIVE DOLLARS AND SIXTY CENTS [$16,935.60] to the Legal Services Commission of South Australia in payment of the costs of the Independent Children’s Lawyer;
(e)to pay the balance of the proceeds of sale of the former matrimonial home as follows:
(i)in payment to the wife’s parents MR GG and MS GG the sum of TWO HUNDRED AND FORTY EIGHT THOUSAND DOLLARS [$248,000.00];
(ii)in payment of the debt due to Company II the sum of ONE HUNDRED THIRTY FOUR THOUSAND NINE HUNDRED AND SEVENTY DOLLARS [$134,970.00]; and
(iii)payment to the husband’s brother MR BB in the sum of ONE HUNDRED AND TWENTY THOUSAND DOLLARS [$120,000.00];
(iv)of the balance then remaining the wife to receive one-half plus THIRTY THOUSAND SEVEN HUNDRED AND THIRTY FIVE DOLLARS [$30,735.00] and any amount certified by the Child Support Agency as arrears due and payable by the husband for child support as at the date of sale of the former matrimonial home and the husband to receive one-half less THIRTY THOUSAND SEVEN HUNDRED AND THIRTY FIVE DOLLARS [$30,735.00] and less any such child support arrears;
(1.6.4)Notwithstanding the wife is the sole registered owner of the former matrimonial home the agent appointed for the sale shall ensure that all offers and other information of and in relation to the sale are provided to the wife with copies to the husband at the same time.
(1.7)Unless otherwise provided:
(1.7.1)each party shall be the sole legal and beneficial owner (as between the parties) of all other assets in their respective possession as at the date of these orders and for that purpose the bank accounts are deemed to be in the possession of the person named as the account holder, investment accounts are deemed to be in the possession of the name investor and superannuation entitlements are deemed in the possession of the superannuant; and
(1.7.2)each party shall be liable for and shall indemnify the other against any and all debts attaching or relating to the property in their respective possession, and any debts in their respective sole names.
(1.8)As to the wife’s interest in R Pty Ltd:
(1.8.1)save and except for capital gains tax assessed in relation to the sale of units in J Street Unit Trust the wife shall fully indemnify and keep indemnified the husband against all debts, claims, actions, costs, demands and liabilities in respect of her interest in R Pty Ltd;
(1.8.2)the husband shall hereafter have no further claim against the wife in relation to her interest in R Pty Ltd or against the assets of R Pty Ltd or any monetary entitlement the husband and/or the wife may have in R Pty Ltd including without limiting the generality of the foregoing any loan account of the husband and/or the wife in R Pty Ltd; and
(1.8.3)save and except for capital gains tax assessed in relation to the sale of units in the J Street Unit Trust the wife shall hereafter release the husband from any liability in relation to any debit loan accounts of the husband in relation to R Pty Ltd.
(1.9)As to the wife’s interest in the Boston Trust:
(1.9.1)save and except for capital gains tax assessed in relation to the sale of units in the J Street Unit Trust the wife shall fully indemnify and keep indemnified the husband against all debts, claims, actions, costs, demands and liabilities in respect of her interest in Boston Trust;
(1.9.2)the husband shall hereafter have no further claim against the wife in relation to the Boston Trust or against the assets of the Boston Trust or any monetary entitlement the husband and/or the wife may have in the Boston Trust including without limiting the generality of the foregoing any loan account of the husband and/or the wife in the Boston Trust; and
(1.9.3)save and except for capital gains tax assessed in relation to the sale of units in the J Street Unit Trust the wife shall hereafter release the husband from any liability in relation to any debit loan accounts of the husband in relation to the Boston Trust.
(1.10)The Application in a Case filed by the wife on 20 May 2016 seeking to enforce the urgent spousal maintenance order made by Federal Magistrate Simpson (as he then was) on 30 August 2012 be dismissed.
(1.11)The payments received by the wife and R Pty Ltd from the trustee of the J Street Unit Trust from 30 August 2012 to October 2015 being a total of ONE HUNDRED AND THIRTY FOUR THOUSAND EIGHT HUNDRED AND FIFTY DOLLARS [$134,850.00] be deemed to be in full satisfaction of the husband’s obligation pursuant to the spousal maintenance order dated 30 August 2012 for the period those payments were made.
(1.12)In respect of the period after the cessation of payments to the wife and R Pty Ltd from the trustee of the J Street Unit Trust that the spousal maintenance order dated 30 August 2012 be varied to nil pursuant to section 83 of the Family Law Act 1975 (Cth).
(1.13)The urgent spousal maintenance order dated 30 August 2012 is discharged.
Each of the parties have permission to provide a copy of the reasons for judgment in this matter and the orders of this Court to the ANZ Bank or other financial institution PROVIDED THAT the recipients are informed that the judgment and orders of this Court are not to be provided to other sections or members of the public without specific authorisation from this Court.
Each party has liberty to apply for consequential orders in relation to the enforcement of the above orders.
All matters are removed from the active pending cases list SAVE AND EXCEPT for the question of costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Boston & Boston (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law
Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 1946 of 2012
| Ms Boston |
Applicant
And
| Mr Boston |
Respondent
REASONS FOR JUDGMENT
Introduction
By an Amended Initiating Application filed on 28 June 2012, Ms Boston (“the wife”) sought final property settlement and maintenance orders in general terms. Subsequently, in July 2016 the wife set out orders which she sought for property settlement. The husband, Mr Boston (“the husband”) opposed those orders.
At the commencement of the trial in October 2016 the wife continued to seek orders similar to those in her earlier documents. At the commencement of the trial in October 2016 the husband sought orders which included that the property at I Street, Suburb K (“the former matrimonial home”) be sold and that the balance (after discharge of mortgages, costs of sale, capital gains tax payable on the sale of units from the unit trust and payment of particular sums to the husband’s solicitors) be divided 40 per cent to the wife and 60 per cent to the husband. The orders sought also provided for the parties to retain certain assets and provide indemnities.
At the conclusion of the trial, the applicant wife continued to seek orders which provided in general terms for her to retain the former matrimonial home, that the interim spousal maintenance order made by FM Simpson (as he then was) be continued, that she receive payment from the husband’s superannuation and that the husband return certain items or pay an amount claimed to be their value.
At the conclusion of the trial, the husband sought detailed specific orders which in general provided for the former matrimonial home to be sold, for the proceeds to be applied to the costs of sale, the discharge of the remaining ANZ Bank mortgages, payment of capital gains tax payable on the sale of the J Street Unit Trust units, the costs of the Independent Children’s Lawyer of the previous child related proceedings, with the balance being divided as to 75 per cent to the husband and 25 per cent to the wife, but with a significant detailed reimbursement by the wife to the husband of a further $169,089. He also sought specific orders in relation to the delivery up of items of furniture and personal effects and detailed orders in relation to the retention of other assets.
The husband also sought detailed orders providing for the dismissal of the interim spousal maintenance application and the allocation of monies paid by the unit trust to the wife to be “deemed to be in full satisfaction of the husband’s obligation pursuant to the order of 30 August 2012”. In the alternative he sought detailed orders which would discharge any liability for arrears or future payments of the spousal maintenance.
Summary of relevant procedural history
The wife commenced proceedings in the Federal Magistrate Court of Australia (as it then was) in May 2012 seeking orders in relation to the children of the parties. The husband responded to those proceedings.
Subsequently in June 2012 the wife filed an amended application seeking final orders in relation to both children and financial matters.
Subsequently the husband filed an amended response in relation to financial matters.
Federal Magistrate Simpson (as he then was) made various interim orders in relation to the children.
On 30 August 2012, when the wife and husband were both represented, he made specific orders including:
1.The respondent husband pay the respondent wife the following sums by way of urgent spousal maintenance:
(a)A lump sum of $6,750 within 7 days; and
(2.3.Until further order, the sum of $750 per week commencing 3 September 2012.
Further procedural orders were made. On 30 November 2012 the Federal Magistrate Court of Australia (as it then was) transferred the matter (which then related to both children and financial matters) to the Family Court of Australia.
The Registrars of the Family Court of Australia heard conciliation conferences and directions hearings. There were also numerous procedural and directions hearings heard by me after May 2013.
Following an Application in a Case filed by the husband orders were made on 31 May 2013 relating to the monies being held by Chartered Accountants, B Accountants (representing distribution from the J Street Unit Trust, which was due to be paid to the Boston Family Trust). The orders made were as follows:
1.[B Accountants], Chartered Accountants, do release the monies currently held by them:
(a)firstly, to discharge all arrears with respect to the children [R] born on … 2002 and [Ms L] born on … 1996 with respect to school fees at [C School] and [D School] up until the date hereof and cover the fees in advance to the end of 2013;
(b)secondly, that all arrears outstanding by way of debt due to the ANZ Bank secured over the former matrimonial home be discharged;
(c)the sum of FORTY THOUSAND DOLLARS [$40,000.00] be held in an interest bearing account in the joint names of the parties’ solicitors pending further order in relation to costs;
(d)the remaining balance to be paid by way of partial property settlement and to be divided equally between the parties and paid to their respective solicitors.
Thereafter the Court made various procedural orders attempting to list the matter for final hearing.
The husband sought interim orders in 2013 that the former matrimonial home be sold and the proceeds be used to discharge the substantial mortgages owing to the ANZ Bank and the E Superannuation Fund (“E loan”). The wife opposed those orders.
On 2 April 2014 further interim orders were made which included that the husband and wife make immediate arrangements for the monies held by B Accountants to be released to the extent required to pay the arrears due to ANZ Bank as at 31 May 2013. I also ordered that during the period of the adjournment the parties were restrained from transferring, encumbering or in any way dealing with the former matrimonial home or their investment of J Street Unit Trust without the prior written consent of the other party.
Throughout the proceedings both the husband and the wife were at times unrepresented. There were numerous changes in solicitors acting for each of the parties.
There have been numerous directions hearings and interim orders. There have also been substantial issues concerning compliance by the parties with orders and directions of the Court.
In March 2015 the proceedings concerning the parenting arrangements for the youngest child of the parties, R (“the child”) born in 2002, were listed for trial.
Consent orders were made on 20 March 2015. Subsequently on 30 July 2015 I made orders restraining the husband from removing the child from Australia. That concluded the matters in relation to children’s issues save and except for the issue of the Independent Children’s Lawyer’s costs.
The issue of the costs of the Independent Children’s Lawyer was adjourned for consideration at the conclusion of the property settlement hearings.
Various orders were made in an endeavour to list the financial dispute for trial.
On 13 June 2014 the first day hearing directions were further adjourned to 1 October 2014.
Orders made on 1 October 2014 provided at paragraph 3:
3.Within fourteen [14] days from today the husband file and serve the material referred to in the orders of 13 June 2014 namely, a Financial Statement setting out his income, assets, liabilities and financial resources and an affidavit annexing detail of all final orders sought in relation to children’s matters or financial matters.
Further directions were made in an endeavour to prepare the matter for trial.
On 3 November 2014, when the husband was represented by solicitors and counsel and the applicant wife remained unrepresented, notations and orders were made listing the matter for final hearing commencing on 16 March 2015 for 10 days.
On 10 March 2015 the Court made orders which postponed the hearing of the trial in relation to financial matters but left the listing for the children’s matters for the week commencing 16 March 2015.
Following the listing of the matter for hearing in relation to children’s matters final orders were made by consent providing for the child to live with the wife and on certain conditions spend time with the husband on alternate weekends, extended to Tuesday morning if Monday was a public holiday and half of the school holidays. Other detailed orders were made.
As indicated previously I subsequently made orders on 30 July 2015 in relation to an injunction restraining the husband from removing the child from the Commonwealth of Australia and placing the child on the Airport Watch List for a period of three years. That concluded the children’s proceedings.
Specific detailed orders for directions for the hearing of the trial were made by me on 8 March 2016 when the wife was unrepresented and the husband was represented by solicitors and counsel. This listed the matter for final hearing for 1 August 2016 for 10 days. Specific and detailed orders were made for the filing of necessary documents.
On 29 June 2016 the husband filed an application in which he sought that I disqualify myself and that the trial listed for 1 August 2016 be adjourned to a new hearing to be conducted by another Judge. On 26 July 2016 that issue was adjourned to 1 August 2016 at the request of counsel for the husband. For reasons which I gave on 2 August 2016 I dismissed the husband’s application.
In that judgment I noted that the husband had not filed any documents pursuant to the orders for directions to prepare the matter for trial and had only filed the application and affidavit in support of his request that I disqualify myself.
I then heard detailed argument about the future progress of the matter. On 12 August 2016 I made further detailed specific orders requiring the husband to take certain steps. Upon certain orders being obeyed the matter was to be listed as defended, otherwise the matter was to be heard on an undefended basis.
The order provided that the trial was to commence undefended or defended on Wednesday 5 October 2016. (See the specific orders of 12 August 2016 and my reasons for judgment of that date).
Subsequently, the matter came back before the Court because the husband asserted that he was unable to comply with the conditions requiring him to deal with the ANZ Bank. The time for the husband’s compliance was then extended.
The wife provided the husband’s solicitors with a signed authority during the hearing on 13 September 2016. Further orders were made to ensure that the matter remained listed for final determination on the original listing commencing on 5 October 2016.
Subsequently, a further application was filed by the husband and listed for Friday 16 September 2016 because the wife had withdrawn the authority that she had signed in Court. The husband was therefore unable to file the affidavit which had been required.
On the 16 September 2016 the husband was represented by his counsel. There was no appearance by or on behalf of the wife. The orders made on that day were as follows:
1.The husband is excused from his obligation to file any further assurance affidavit and released from compliance with:
(a)paragraph 1 of the order of the Honourable Justice Dawe dated 12 August 2016; and
(b)paragraph 5 and 7 of the order of the Honourable Justice Dawe dated 13 September 2016.
2.The property settlement proceedings be heard on a defended basis for eight [8] days commencing Wednesday 5 October 2016 at 10.00 am before the Honourable Justice Dawe.
3.Leave is granted to the husband to issue a subpoena to the ANZ Bank to obtain all records of communications between the wife and the ANZ Bank including instructions provided by the wife to the ANZ Bank since 1 April 2016 AND FURTHER leave is granted to issue a subpoena to the ANZ Bank to provide all banking records of the wife held by the ANZ Bank since 1 January 2012 PROVIDED THAT both subpoenas are issued and served by 4.00 pm on Monday 19 September 2016 and made returnable on Thursday 29 September 2016.
4.The question of the husband’s costs of today’s application and the Application in a Case which was determined on 13 September 2016 are reserved to the trial Judge.
5.The Application in a Case filed by the wife on 2 June 2016 is dismissed and removed from the active pending cases list.
6.The Application in a Case filed by the husband on 14 September 2016 is dismissed and removed from the active pending cases list.
During the proceedings the husband and wife have been legally represented as follows:
Husband’s representation
(a)Cardone & Associates – from commencement of proceedings to 3 August 2012;
(b)David Burrell & Co – from 7 August 2012 to July 2013;
(c)Kelly & Co – from 30 August 2013 to 6 February 2014;
(d)Duncan Basheer Hannon – from 29 September 2014 to 10 December 2014;
(e)C & F Lawyers – 25 February2015 to 1 August 2016;
(f)Norman Waterhouse Lawyers – 4 August to date;
(g)at other times the husband has been unrepresented.
Wife’s representation
(h)Scales & Partners – from commencement of proceedings to 14 November 2012;
(i)Georgina Parker Lawyers – from 11 December 2012 to 20 March 2013;
(j)Stevanja & Associates – from approximately 10 May 2013 to approximately 7 May 2014;
(k)Andersons Solicitors – from 29 July 2015 to 30 October 2015;
(l)White Berman – from 12 November 2015 to approximately 27 January 2016;
(m)at other times the wife has been unrepresented and has been since January 2016 to date.
After the numerous interim and procedural orders the final trial of the financial matters commenced before me on 5 October 2016 when it was rostered for hearing for eight days. The applicant wife was unrepresented. She was given permission to have the assistance of a McKenzie’s Friend. The husband was represented by Mr Birchall of counsel, as he was at that time represented by solicitors Norman Waterhouse Lawyers.
On the first three days of the trial hearing the Court’s time was taken up with objections to material and applications for leave to file documents and rely upon further witnesses who had not previously filed their evidence-in-chief.
The Court commenced hearing the evidence when the wife commenced her evidence-in-chief on the morning of Monday 10 October 2016.
Thereafter the matter continued to the conclusion of that week on 14 October 2016, on 24, 25, 26, 27 and 28 October 2016, 31 October 2016, 1 and 2 November 2016 and 7, 8 and 9 November 2016, when judgment was reserved.
Throughout the proceedings there were numerous issues raised in relation to objections and the production of documents.
Relevant background
The parties married in 1987. There are three children of the marriage, Mr M and Ms L who are now over 18 and R born in 2002 (now aged 14 years).
The parties separated briefly in 1999. The parties reconciled and the divorce proceedings which had been commenced were discontinued.
During the relationship the parties travelled. The husband travelled frequently overseas during the marriage. In approximately 2000 the family moved to Country P where R was born in 2002. They also lived in Country Y. During this time the husband was pursuing significant business opportunities.
The wife and children returned to Australia in 2005, with the husband following approximately three months later.
The final separation took place in May 2012.
At one time after separation the husband was in a relationship with Ms F, a Country Z citizen. There is an issue about the current relationship between the husband and Ms F.
The wife was in a relationship with Mr A. The wife denied that she was in a de facto relationship and maintained that she had not resided and did not reside with Mr A.
At the time of the trial she asserted that their relationship had ceased.
Mr M now resides with the husband. He is engaged in employment. Ms L and R reside with the wife. Ms L is studying at university and is still, to a certain extent, dependent upon the wife. R resides with the wife and has not recently spent time with the husband notwithstanding the consent orders which were made in March 2015.
Summary of issues in dispute
For a considerable period of time prior to the commencement of the trial, and throughout the final hearing, the wife was unrepresented. The husband has had numerous solicitors acting for him from time to time. His current solicitors, Norman Waterhouse Lawyers, filed their Address for Service on 4 August 2016. The wife’s lack of legal representation leading up to and at the trial and the husband’s only recent instructions to Norman Waterhouse Lawyers explain, to some extent, the length of the trial and the absence of any clear identification of the issues in dispute.
Family violence
The wife maintains that the husband had subjected her to family violence which should be brought into account when considering the financial orders. She also maintained that his violence was relevant to the financial proceedings because she alleged that she had been forced by the husband to place assets in her name and that the companies and trusts, seemingly under her control were actually under the husband’s control. The husband denied that he had been violent or controlling towards the wife.
Husband’s assets – not disclosed
Another significant issue in the determination of the financial matters was the wife’s allegations that the husband had, and continues to have, substantial assets that he has not disclosed, being assets relating to businesses in Country Y, Country P, Country Z and Australia and in sports promoting businesses in Country Z and Australia. The wife also maintained that the husband had an interest in 2 J Street Unit Trust, which was held on his behalf by his accountant’s wife. The husband strongly denied that he had any interest in any active ongoing companies or businesses or any assets other than those he has disclosed.
The husband maintained that he had set up companies but that they were not yet operating to the extent that they had any value or that he was receiving any income from them.
Funds withdrawn by wife
On behalf of the husband it was alleged that the wife had drawn down and used significant funds from the ANZ Bank loans and that these should be brought into account. The wife maintained that the monies she had used from these drawings were either to repay the mortgages or to pay school fees and other living expenses for herself and the children.
Debts owing to family members
At the commencement of the trial both parties claimed to owe members of their respective families significant sums.
The wife maintained that she had significant debts to her mother and father.
At the commencement of the trial the husband claimed to have significant debts due to his brothers and his former partner, Ms F.
Each party disputed the debts claimed by the other party.
Valuation of former matrimonial home
Notwithstanding the orders which had been made for a joint valuation to be obtained for the former matrimonial home, each of the parties obtained their own valuations. Prior to the commencement of the trial the Court requested that the valuers confer and attempt to reach an agreed value for the former matrimonial home. The valuation obtained by the wife immediately prior to the trial placed a value of $1.9 million on the former matrimonial home. The husband’s valuer placed a value of $2.4 million on the former matrimonial home (the difference of half a million dollars).
After the request by the Court for a conference, the valuers agreed the former matrimonial home property was worth $2.15 million. The wife however did not accept this valuation and required the husband’s valuer, Mr JJ, to be called.
Assets retained by wife – not disclosed
The husband also claimed that there were assets which the wife had retained or not disclosed, including a dispute in relation to Telstra and Wesfarmers shares and businesses for which she had registered names.
There were significant disputes concerning the whereabouts of furniture, household effects and jewellery, with each of the parties claiming the other had retained and not disclosed significant assets of this type which were not in the O Valuers valuation obtained for these proceedings.
Relationships
Since the proceedings commenced in 2012 the wife was at one time in a relationship with Mr A. She denied that it was a de facto relationship and denied that they had ever lived together. The husband maintained that she was, and is still, in a de facto relationship with Mr A and that this factor should be brought into account in making the final adjustments.
Since the proceedings commenced in 2012, the husband had admitted that he was in a relationship with Ms F (a Country Z citizen). He maintained however that this relationship had broken down and that he was no longer in a relationship with her. He did claim that he still owed her money.
The wife maintained that although Ms F had apparently returned to the Country Z the husband was still in a relationship with her and still had the benefit of her financial support.
The law
The Family Law Act 1975 (Cth) (“the Act”) sets out the law in relation to property settlement and maintenance. The significant sections for this matter are s 72, s 74(1), s 75, s 79 and s 83(1).
Section 72 – Right of spouse to maintenance
(1)A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c)for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
(2)The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.
Section 74(1) – Power of court in spousal maintenance proceedings
(1)In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.
Section 75 – Matters to be taken into consideration in relation to spousal maintenance
(1)In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).
(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties; and
(b)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; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
(3)In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
Section 79 – Alteration of property interests
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or
(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage--altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d)an order requiring:
(i)either or both of the parties to the marriage; or
(ii)the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
…
(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Section 83(1) - Modification of spousal maintenance orders
(1)If there is in force an order (whether made before or after the commencement of this Act) with respect to the maintenance of a party to a marriage:
(a)made by the court; or
(b)made by another court and registered in the first‑mentioned court in accordance with the applicable Rules of Court;
the court may, subject to section 111AA:
(c)discharge the order if there is any just cause for so doing;
(d)suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event;
(e)revive wholly or in part an order suspended under paragraph (d); or
(f)subject to subsection (2), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.
The Evidence Act 1995 (Cth) at s 140 states:
Section 140 - Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject‑matter of the proceeding; and
(c)the gravity of the matters alleged.
The evidence called in relation to the alleged assets and liabilities of the parties was a significant issue. It was therefore necessary to consider the failure of the parties to call witnesses. The “rule” in Jones v Dunkel (1959) 101 CLR 298 was discussed in the Full Court of the Family Court of Australia decision of GWR v VAR (2006) 36 Fam LR 237 at 29:
The decision of the High Court in Jones v Dunkel does little more than confirm that common sense suggests would be the case, namely that where it would be reasonable to expect a party to have called evidence from a witness in relation to an issue, the unexplained failure to do so can justify drawing the inference that the evidence of that witness would not have assisted that party’s cause.
The issue of the husband’s alleged assets and his financial resources requires the Court to consider the High Court decision of Hall v Hall (2016) 332 ALR 1 where the majority of the Court said at paragraphs 53 to 58:
53.The matters referred to in s 75(2)(b) are matters which bear on the practical ability of one party to support the other, and of the other party to support himself or herself. Hence the concluding reference is to the matter of "the physical and mental capacity of each of them for appropriate gainful employment". Hence also the opening reference to the matter of "the income, property and financial resources of each of the parties" cannot be confined to the present legal entitlements of the parties.
54.The reference to "financial resources" in the context of s 75(2)(b) has long been correctly interpreted by the Family Court to refer to "a source of financial support which a party can reasonably expect will be available to him or her to supply a financial need or deficiency" The requirement that the financial resource be that "of" a party no doubt implies that the source of financial support be one on which the party is capable of drawing. It must involve something more than an expectation of benevolence on the part of another. But it goes too far to suggest that the party must control the source of financial support. Thus, it has long correctly been recognised that a nominated beneficiary of a discretionary trust, who has no control over the trustee but who has a reasonable expectation that the trustee's discretion will be exercised in his or her favour, has a financial resource to the extent of that expectation
55.Whether a potential source of financial support amounts to a financial resource of a party turns in most cases on a factual inquiry as to whether or not support from that source could reasonably be expected to be forthcoming were the party to call on it.
56.Here, on the Full Court's finding of fact, the annual payment from the Group was a financial resource of the wife so as to be a matter within s 75(2)(b). The payment was available to her if she asked for it. The availability of the payment was the subject of specific provision in the father's will. The making of the payment was at least a moral obligation of the wife's brothers, who were in any case well-disposed towards her.
57.Section 75(2)(o) plainly extends to any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account as showing that a party to the marriage is or is not able to pay spousal maintenance or is or is not able to support himself or herself. The paragraph has accordingly long been correctly interpreted by the Family Court as permitting consideration by a court of "all of the financial matters which are relevant to [a] particular case" Nothing in the language or structure of s 75 prevents a fact or circumstance which falls within s 75(2)(o) being also a fact or circumstance which gives rise to a matter under another paragraph of s 75(2), including s 75(2)(b).
58.Because it bore centrally on the ability of the wife to support herself adequately, the availability to the wife of the annual payment from the Group was also a fact or circumstance in respect of which it was open to the Family Court to form the opinion that the justice of the case required that it be taken into account. The analysis of the Full Court shows that it formed that opinion. There was thus, in addition to a matter within s 75(2)(b), a matter within s 75(2)(o).”
The husband sought considerable add-backs or adjustments in relation to what was described as the wife’s “negative contributions”. Counsel for the husband relied upon paragraph 138 of the recent Full Court decision of Vass v Vass (2015) 53 Fam LR 373. It is relevant however to consider the context of these remarks I therefore set out paragraphs 135 to 140.
135.Ground 16 of the Amended Notice of Appeal provides:
The learned Trial Judge erred in law and in his discretion in that he added back into the property of the parties the sum of $75,000 being
the sum of $50,000 repaid to the Husband’s parents and the sum of $25,000 used by the Husband to pay the mortgage and associated household expenses.
136.At the hearing of the appeal, this ground was only faintly pressed, if at all. We therefore propose to deal with it very briefly.
137.At [50] to [65] of the First Reasons under the heading “Add-backs,” the trial judge held that $25,000 withdrawn by the husband from the parties’ bank accounts post-separation should be added back into the pool of assets, and further concluded that $50,000 which the husband had, post-separation, paid to his parents, purportedly in repayment of a loan from them, should also be added back.
138.There is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties. We reject any suggestion that the decision of Bevan & Bevan (2013) FLC 93-545 – or, more particularly, the decision of the High Court in Stanford & Stanford (2012) 247 CLR 108 - is authority for any necessary contrary solution. Some statements made by the High Court may lead to the conclusion that references to “notional property” as have been referred to in decisions of this court and at first instance may need to be reconsidered.
139.The decisions referred to seek to remind the Court that, however the exercise of discretion might seek to deal with property that is said to be the subject of “add back”, proper consideration must be given to existing interests in property, and the question posed by s 79(2) as a separate inquiry from any adjustment to property interests by reference to s 79(4) if a consideration of s 79(2) reveals that it is just and equitable to alter existing interests in property.
140.No error is established in relation to this ground of appeal, and it therefore fails.
Counsel for the husband relied upon certain parts of the decision of Justice Murphy in Watson v Ling (2013) Fam LR 303.
The paragraphs which assist the Court in this matter are as follows:
32.Where the Court has determined that it is just and equitable to make an order pursuant to s 79(2) or s 90SM(3) and there is clear evidence that one party has engaged in conduct and, but for that conduct, the legal and equitable interests of a party or the parties (or the value of those interests) would have be significantly greater, justice and equity may require recognition of the unfairness inherent in those circumstances in the terms of the orders to be made.
33.How might that be recognised? First, consistent with existing authority, it can be recognised pursuant to s 75(2)(o) (cf s 90SF(3)(r)) (see, for example, Omacini & Omacini (2005) FLC 93-218, Browne & Green (1999) FLC 92-873 and Cerini). Secondly, it might be contended that it might be recognised within the assessment of contributions. This Court has long eschewed the notion of “negative contributions” (see, for example, Antmann & Antmann (1980) FLC 90-908). Nevertheless, it might be argued that the “non-dissipating party” can be seen to have made a disproportionally greater indirect contribution to the existing legal and equitable interests (for example to their preservation) if it is established that, but for the other party’s unilateral dissipation, those existing legal and equitable interests would have been greater or had a greater value.
34.The assessment of the circumstance under discussion is, ultimately, a matter of discretion (see, for example, Cerini at [46] and Townsend at 81,654). Equally, however, authority dictates that it will be “the exception rather than the rule” (Cerini at [46]) 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. It may be that aspects of the erstwhile treatment of legal fees pre-Stanford (see, for example, Chorn & Hopkins (2004) FLC 93-204) will require further consideration in an appropriate case.
35.Importantly, of course, as has been emphasised in many authorities including those cited above, not every dissipation by a party can be seen to involve an affront to justice and equity; again the circumstances of the individual relationship must be assessed.”
In the matter of Stanford v Stanford (2012) 247 CLR 108 the High Court of Australia dealt with the provisions of s 79. At paragraphs 35, 36 and 39 it is stated:
35.It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order". Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub‑sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
36.The expression "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. And while the power given by s 79 is not "to be exercised in accordance with fixed rules", nevertheless, three fundamental propositions must not be obscured.
…
39.Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is "just and equitable" to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that "[c]ommunity of ownership arising from marriage has no place in the common law". Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be "decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses". The question presented by s 79 is whether those rights and interests should be altered.”
Subsequently the Full Court of the Family Court of Australia discussed Stanford (supra) decision in Bevan & Bevan (2013) FLC 93-545 and said at paragraph 70:
70.In our experience, the circumstances described in the paragraph above encapsulate the vast majority of cases. Hence, the reminder in Stanford of the pivotal role of s 79(2) is unlikely to have any impact in most cases, although it will serve as a reminder to trial judges that the precondition to making any order is a finding that it is just and equitable to do so.”
It is appropriate therefore to identify the existing property interests of the parties and their liabilities and consider the provisions of s 79(2) and thereafter if appropriate, apply the provisions of s 79(4).
Assessment of evidence in relation to issues in dispute
The documents relied upon by each party were as follows:
Wife
·Amended Initiating Application filed on 28 June 2012;
·Affidavit filed on 29 October 2014;
·Trial affidavits filed on 1 July 2016 and 27 September 2016;
·Financial Statement filed 1 July 2016;
·Affidavit filed by Mr A on 1 July 2016;
·List of assets and liabilities filed 27 September 2016;
·Orders sought filed 27 September 2016;
·Case outline filed 5 October 2016.
Husband
·Trial affidavits filed 16 September 2016 and 5 October 2016;
·Financial Statement filed 16 September 2016;
·Case outline 16 September 2016;
·Affidavits filed by Mr BB Boston on 16 September 2016 and 5 October 2016;
·Affidavit filed by Mr KK on 20 September 2016;
·Affidavit filed by Mr LL on 23 September 2016;
·Affidavit filed by Mr MM on 12 October 2016;
·Affidavit filed by Mr JJ on 7 November 2016;
·Orders sought filed 5 October 2016.
The wife’s evidence
The wife after the detailed objections to evidence in affidavits and other procedural matters commenced her evidence on Monday 10 October 2016. During her evidence-in-chief and cross-examination there were significant issues about the production of documents, in particular bank statements for various periods.
Counsel for the husband cross-examined the wife at length commencing on the afternoon of 10 October 2016 and continuing throughout the 11, 12, 13 and 14 October and 24 and 25 October 2016. The wife’s re-examination commenced and concluded on 25 October 2016.
During the wife’s cross-examination the Court gave leave for Mr NN of Company OO (a witness subpoenaed by the wife) to be interposed in the afternoon of Friday 14 October 2016.
During her evidence-in-chief the wife gave evidence that prior to the separation, although the former matrimonial home was in her name and therefore the mortgages secured over the property were in her name and the bank accounts were in her name, the husband controlled all of the business accounts and had borrowed monies for his business using the former matrimonial home as security.
Exhibits were received indicating the basis upon which the parties applied for and obtained significant loans from the ANZ Bank and the E Superannuation Fund.
During the cross-examination numerous documents were put to the wife.
During cross-examination the wife was asked about significant withdrawals from the ANZ home loan accounts secured over the former matrimonial home. In some instances significant withdrawals were made on the same day from different suburban branches.
In particular, when the wife was shown bank statements and individual transactions put to her she conceded that many of the amounts were drawn from the accounts that she had taken out which had increased the indebtedness to the ANZ Bank. On most occasions she maintained that the monies which she had taken were used by her for living expenses and payment of school fees and other children’s expenses.
Her evidence under cross-examination in relation to the Bank SA account opened in her name giving her father’s address in late 2012 and the contents and whereabouts of a safety deposit box was not convincing. On many occasions she said that she could not remember or she did not know. Her reluctant and late production of bank accounts did not assist her case.
During cross-examination it was also put to the wife that the payments made by J Street Unit Trust to her following the orders of FM Simpson (as he then was) in August 2012 should in fact be acknowledged by her as maintenance from the husband. She strongly rejected this.
A schedule prepared on behalf of the husband purported to show payments allegedly made by J Street Unit Trust to the wife, the Boston Trust and the husband was shown to the wife. She was questioned in detail about the receipt of funds attributed to her. Her evidence confirmed that most, but not all, of the payments in the schedule, described as payments to the wife, were in fact received by her. Some were not. (Exhibit 18 and the chart annexed to the husband’s affidavit GB21).
During the lengthy cross-examination by counsel for the husband, the wife continued to maintain that monies withdrawn by her from the accounts were used to pay living expenses for herself and the children, including “food, clothing, tuck shops, sport, doctors, dentist, gas, uni fees” and other expenses.
When cross-examined about her relationship with Mr A she denied that they were living together or were in a de facto relationship.
During cross-examination she maintained that payments which had been made to Mr A were for work that Mr A had performed on the former matrimonial home.
The wife was also cross-examined at great length about overseas holidays and expenses incurred since separation. During the cross-examination she conceded that she had had three overseas trips in 18 months. She was also cross-examined about expenditure on clothes, restaurants and other expenses since separation.
The wife was cross-examined about the monies she claimed she had borrowed from her parents to pay out the E loan over the former matrimonial home and the litigation in relation to that loan. At times she could not be specific in relation to interest payments or amounts owing when cross-examined in detail about amounts and dates. I am satisfied however that the wife has borrowed substantial funds from her parents in order to discharge the E loan and prevent the sale of the former matrimonial home.
The wife was cross-examined at length about her ongoing resistance to the sale of the former matrimonial home. During this cross-examination the wife maintained that the husband held other assets which he had not disclosed and that she therefore expected to retain the former matrimonial home for herself and two of the children.
The wife was also cross-examined about the internet pages and business names she had established. She maintained that even though she had those names and email addresses, they were not currently operating businesses. I accept her evidence in regard to these matters.
The wife was then cross-examined at length about the items that the husband maintained had been retained by her but not valued by the O Valuers when they carried out a valuation of the furniture and contents of the former matrimonial home for the purpose of these proceedings in June 2013. (Exhibit 39).
During this lengthy cross-examination the wife continued to maintain that some of the items alleged to be missing by the husband were indeed in the O Valuers valuation, whilst others she maintained had been taken from the former matrimonial home by the husband.
She denied that some of the items existed. In particular she denied that there had ever been a “…dinnerware set” or a “…place setting”. She denied that the husband had ever had a collection of valuable watches and claimed that the only watches he had purchased were “fake” watches.
When she was asked about gold chains and other gold items left in the safe at the former matrimonial home, the wife maintained in her evidence that she had no control over what was in the safe. She denied removing any items from the safe at the time of separation.
During cross-examination the wife was asked about Telstra shares which were disclosed in her tax returns. She did not know how many the Telstra shares were and claimed that they had been in the children’s names some time prior to separation.
In relation to the Wesfarmers shares the wife maintained in cross-examination that they had been purchased many years ago and had been sold in late 2013 or 2014.
The wife was cross-examined at length about her relationship with Mr A. She admitted that in late 2011 or early 2012 she met Mr A and that after the separation she had a sexual relationship with him. She was adamant that her sexual relationship with Mr A had ceased in December last year or January this year. She admitted that he had slept at the former matrimonial home on occasions but denied that she had ever been in a de facto relationship with him.
In cross-examination she also denied that there was any plan that they would marry once the proceedings had been completed. During this cross-examination the wife was shown a photograph of herself and Mr A. (Exhibit 44). She admitted that the photograph was of her but said she did not know who took it or sent it to the husband. She gave similar answers when shown Exhibit 45 which was a photograph of herself and Mr A standing together.
The cross-examination of the wife continued on 24 October 2016. The wife produced documents including those in relation to the AMP Superannuation Fund as at 20 July 2014 (Exhibit 46). She maintained that she no longer had any other superannuation having closed the previous account some two or three years ago when the amount of $300 was used to pay fees and charges leaving no payment to her.
The wife was also cross-examined at length about payments going into accounts which she was asked to admit were from the husband’s brother Mr QQ. On many occasions she refused to admit this, saying that the payments were not from the husband’s brother but from Business 1 or Business 2. (The cross-examination related to payments going in and out of accounts as early as 2009 and 2010).
In re-examination the wife maintained that the husband had every opportunity, and had in fact taken the items which were missing from the O Valuers valuation.
She also gave evidence that since separation that she had used the monies, not only for the items highlighted in cross-examination but also significant expenses in relation to the former matrimonial home, the utilities, groceries and expenses in relation to the children, including school and university fees.
Some of the wife’s evidence was not always acceptable or reliable. Her failure to produce relevant documents before the trial and her ongoing refusal or failure to produce other documents during the trial does not assist her case. This failure, however, needs to be considered in the context of the wife being unrepresented for a considerable period of time prior to the final hearing.
Witness Mr NN
The wife relied upon the evidence of Mr NN from Company OO. Mr NN is a broker who assisted the parties in obtaining loans from the ANZ Bank. He gave evidence about conversations he had with the husband around 2010 when he was approached to assist the husband in obtaining a loan of about $1.2 million.
Mr NN confirmed that the information contained in the home loan application form was consistent with what he had been told by the husband would be the income of the wife based upon the husband’s proposed new business. During cross-examination the witness confirmed that the husband had told him that the wife would earn $350,000 per annum.
Although the witness had limited independent recall I accept his evidence about the husband’s assertions to him about the wife’s anticipated income.
Witness Mr A
The wife was proposing to rely upon the evidence of Mr A. He was called but there was no appearance.
On Wednesday 26 October 2016 the wife was re-sworn. She was questioned about the missing bank statements and other documents called for but not produced. On that morning the wife also produced a text message received by her daughter from Mr A on the previous evening 25 October 2016. (Exhibit 73).
The message said:
Hey Ms L how are? Hope all is good! I’m just letting you know that I’ve had enough of this billshit (sic) in court! I can’t stand it anymore. It’s driving me crazy! Can you please tell your mum I won’t be at court at all. As my help is useless in these corrupt courts. It makes me angry! I’m not in Adelaide anymore as I needed to get away and have time to myself…I’m sorry about everything hope it All (sic) goes well and you guys find your happiness. I’ll always love you guys! Xox love Mr A xx.
The Court stood down for a brief adjournment to allow the wife to make attempts to contact Mr A. When she returned after the adjournment she indicated that she had been unsuccessful. She was then cross-examined by counsel for the husband. During this cross-examination she said that she spoke to Mr A some time the previous week by telephone and had last seen him “about two weeks ago”. She said she did not know where he lived now. She maintained that he had last been at the former matrimonial home about “a month ago”. She was cross-examined in detail about her knowledge of Mr A’s sporting activities. She confirmed that she had been in SS Town, Victoria between 7 and 12 April 2016, but she denied having any knowledge of Mr A being involved in a sporting competition at SS Town during those dates.
Witness Dr UU
The Court received the evidence of Dr UU by telephone link. The wife was relying upon an affidavit by Dr UU sworn in 1999 which was filed in previous proceedings in Victoria.
The affidavit refers to the wife consulting the doctor in September 1997 and providing him with a history of domestic violence. His affidavit includes:
…A physical examination on that occasion revealed bruising and scratches to the left buttock, the left thigh, scapulae and the face. These injuries were consistent with her verbal history of domestic violence.
The affidavit also includes further reference to the wife mentioning domestic violence in consultations in March 1998 and a further complaint to the doctor’s receptionist about domestic violence by the husband in February1999.
The doctor maintained that his affidavit was true at the time of swearing it. When cross-examined by counsel for the husband he confirmed that his recollection was primarily based upon the affidavit. He conceded that he would have had notes at the time the affidavit was prepared but did not have them now. He gave honest and direct answers about his inability to recall exact dates due to the passage of time. Similarly, he was not able to independently recall the examination which was carried out, but maintained that his affidavit was true at the time it was sworn.
I accept that the “passage of time” was an appropriate and sufficient explanation for the witnesses’ inability to recall details. I also accept that he gave clear evidence that the affidavit was true and correct when he swore it.
I accept the evidence of the doctor. I also accept that his evidence supports the wife’s allegation of domestic violence during the relationship of the parties in the period referred to in his affidavit. That does not necessarily prove that the wife’s allegations to the doctor was correct, but should be considered as supportive and at the same time considered in the context of the considerable time which has passed before the doctor was required to be cross-examined.
The husband’s evidence
The husband commenced his evidence giving his address as TT Street, Suburb VV and his occupation as consultant
During his evidence-in-chief the husband identified Exhibits 49 to 54 photographs which had been put to the wife of paintings and a mirror. He maintained that the photos were taken on 30 May 2012, the day before he left the former matrimonial home. He denied that he had taken any of the items with him when he left the premises and maintained that they were all at the home when he left. As to the framed gold print of “cows” (Exhibit 60) which the wife produced, he said that he had never seen it before the wife produced it in Court.
In the husband’s oral evidence-in-chief he maintained that a dinnerware set, which had been purchased in Country Y for about eight or nine thousand euros “in approximately 2002 to 2004” was left behind at the house. He gave similar evidence in relation to place settings, whisky glasses, wine glasses, stereo speakers and expensive watches.
When asked in examination-in-chief why the detail of the missing items to which his evidence now referred was not in his affidavit his response was words to the effect “Mmmmm when I was talking to my lawyer I basically said my jewellery and didn’t go into detail”. He then gave further evidence about alleged missing four expensive pens, which he said would be worth between $500 to $1500 each. When asked where they were at the time he last saw them he said “in the safe”.
During his evidence-in-chief, the husband identified Exhibits 44 and 45, as photos sent to his mobile by Mr A, which he said occurred in 2013.
The cross-examination of the husband by the wife then commenced.
The wife commenced her cross-examination of the husband dealing with his passports and visas and his visits to, and ability to work in, the Country Z, Country P and Country Y. He was asked to produce his Australian and Country Y passports (the Country Y passport he said had expired). He agreed to produce them the next day.
The wife cross-examined the husband about the lawyers’ fees he had paid and which were outstanding. His evidence was that he had paid $45,000 to Burrell & Co and $15,000 to Kelly & Co from the $60,000 he received by way of partial property settlement. His evidence was that he still owed C&F Lawyers approximately $50,000. His evidence was that his brother Mr BB had paid $120,000 of lawyers’ fees for him and that he currently owed his present solicitors “probably $30,000 to $40,000”.
In cross-examination he denied having any other property or asset, other than what he claimed to be his interest in the former matrimonial home. When asked if he owed any other persons money, besides his lawyers and his brother, he said “Yes” and when asked “whom” he said “Ms F”. When asked how much he said approximately $220,000 to $230,000. When asked what this was for he said words to the effect “for her having to fund my living since these proceedings started”.
When cross-examined about the property in which he now resides, and has been residing for some time, he said that he did not own the apartment but that “we rent it”. When asked “who rents it” he said Mr M. He was then referred to annexure 22 of the wife’s first affidavit to which the lease of the apartment was annexed. He conceded that the document indicated that the only tenant of the apartment was Ms F. He maintained that up until May/June this year that the rent of approximately $640 per week was paid by Ms F. When asked who has been paying the current rent he said that Mr M now pays it to the property agent. When questioned again about their son paying the rent, he replied words to the effect “Yes and when I’ve got cash I pay as well”.
When cross-examined about the monies that he claimed he owed to Ms F he said words to the effect “[Ms F] didn’t give it to me she paid rent and living expenses”. He then referred to the rent which Ms F paid, her rental of a car and payment of other expenses.
When cross-examined about travel overseas the husband said that he had probably travelled overseas five or six times during these proceedings. This included trips to Europe and Country Z.
When cross-examined about payment of school fees for the children or any other payments for the children and spousal maintenance he claimed to have paid these items but later admitted that he had not personally paid them but that payments had been made by the J Street Unit Trust which he described as being “through our marital asset”. In relation to child support he maintained that he had paid approximately $5,000, but only in the last couple of years. He agreed that he still owed approximately $5,000 in child support.
During the cross-examination when the husband was being asked whether he had paid school fees and university fees, he changed the subject and said words to the effect “I still owe [Mr QQ] about $80,000” (referring to his brother). He conceded that half an hour earlier he had not mentioned this debt when listing the debts that he owed. He maintained that these monies were advanced to himself and the wife during their marriage for living expenses and costs.
In cross-examination he admitted travelling overseas to Country Z in July 2014 and December 2015, which he claimed were for holidays. When cross-examined about his relationship with Ms F, he was asked whether he had been engaged to Ms F, his response was “not officially”. He then conceded that he “may have” previously said they were engaged and planning to marry when the issues concerning the child R were outstanding.
When asked about whether Ms F was involved in the business which he had set up known as WW Pty Ltd, he said “No”. He then conceded that she had been shown as a director on the ASIC documents, but then said that she had resigned and had sent that resignation to ASIC.
The husband was asked about the domestic violence during the relationship and in particular about intervention orders and proceedings in 1999. He admitted that there had been proceedings and allegations but denied that he had been violent towards the wife.
The husband was also cross-examined about the events immediately prior to the parties’ separation in May 2012. Whilst he admitted the police had been called and that an intervention order had been obtained, he denied the violence and denied forcing the daughter Ms L to retract her supporting statement.
When the husband was asked about the boat and trailer he removed from the former matrimonial home at separation, he said that he “basically got rid of it for $1,000”. He said he sold it for cash, probably two years ago.
When cross-examined about the annexure letter TJB06, being a letter dated 2 December 2011 the husband conceded that he may have sent the letter which asked for a loan of $500,000 for Business 2. Business 2 had been “rebadged” Business 3. Eventually, during the cross-examination the husband admitted that he had lied in the letter and said that it “obviously doesn’t reflect what we needed the money for”. He conceded that the loan was not granted to him but was granted to the wife because the property was in her name.
Of the $200,000 borrowed, $41,000 went towards interest in advance leaving the sum of $159,000 paid into the account.
During the cross-examination the husband conceded that during the relationship the parties both used the Company XX bank account number 519. He was asked about specific amounts withdrawn from the account. He said he could not remember.
The husband was shown annexure TJB17, being a document prepared for the ANZ Bank in December 2011. He agreed that in his hand-writing there was an entry concerning his ownership of Business 2 worth $10 million. He then gave evidence that he did not have any ownership in Business 2 and that he had never been a director.
This evidence of the husband contradicted the document annexed to the wife’s first trial affidavit being a memorandum of understanding made to which Business 2 was a party. The document is executed by the husband who is described as director/sole director and sole secretary of Business 2. His signature is dated 10 May 2010.
During the cross-examination the husband was asked about monies passing through the accounts in early April 2012. He agreed that he had sent $100,030 to the Business 2 Country P account. When asked what this was for he said “it was for the repayment of hundreds of thousands of dollars that [Mr QQ] had sent us.” When asked why it had gone to Business 2 and not to his brother personally, he said words to the effect “because it was his company and he wanted the money sent there”.
The husband conceded that about that time in April 2012 the family travelled to Asia and he went on alone to Country P where he claimed they were “testing the [equipment]”.
When cross-examined about certain transactions which took place on 12 April 2012, the husband gave confused evidence about the date of departure when it was put to him the immigration records which he had previously seen suggested that he departed on 14 April 2012 and not on 12 April 2012. His response was “I was two days out”.
After detailed cross-examination the husband conceded that none of the $159,000 borrowed from the E Superannuation Fund went to reduce the other loans secured on the former matrimonial home.
During further cross-examination by the wife which continued on 28 October 2016, the husband vehemently denied having any interest in the 2 J Street Unit Trust. He admitted that he had previously had a relationship with Mr and Ms FF as friends and that he had introduced Mr FF to his brother Mr QQ.
During the evidence of the husband he insisted that he was entitled to 50 per cent of the interest the parties once held in the J Street Unit Trust. His explanation for this was that the Boston Trust held the shares in the J Street Unit Trust and that he was one of two possible beneficiaries named in the trust deed for the Boston Trust.
During cross-examination on 28 October 2016 the husband was asked questions about monies owed to Mr FF. When asked whether he currently owed any money to Mr FF one of the husband’s earlier responses was “if I owe him I will attend to it”. When asked why this alleged debt was not disclosed in his sworn affidavit, he said words to the effect “because if I have a debt I will attend to it”. He was pressed as to why he omitted it from his sworn documents, he said words to the effect “I forgot. I can use the excuse that [Ms Boston] uses that I forgot”. He then said words to the effect “I didn’t put it in there because I haven’t spoken to him for three or four years and if I do owe him anything I will repay him”. When asked by the wife had he ever owed money to Mr FF, he said “Yes” and when asked how much he said “in the range of thousands less than ten thousand”. His evidence then was that at the time of the separation, Mr FF had lent him money during 2012.
The Court received the wife’s evidence in relation to the O Valuers valuations. Some of her evidence purported to identify the items alleged to be missing by the husband.
The Court received photographs that the husband took of what he alleged were valuable art work retained by the wife. These photos were taken by the husband shortly prior to him leaving the former matrimonial home in 2012. The wife denied that those items were still in the former matrimonial home when she returned to take up residence there.
Both the husband and wife were vehement when giving their evidence about these topics. The evidence given by both of them however, was insufficient to establish either case on the balance of probabilities. The Court is therefore unable to bring into account the values alleged on the items purported to have been retained. The Court will therefore bring into account the household effects retained by the wife in accordance with the O Valuers valuation. The items which were acknowledged by the husband to have been taken into his care are of nominal value and as such will be treated in that way.
The wife maintained that the husband was still in a relationship with Ms F and that this relationship should be taken into account when considering the appropriate adjustment. Similarly, the husband asserted that the wife was in a de facto relationship with Mr A and that this should be brought into account.
Neither Ms F or Mr A were called to give evidence.
The wife had attempted to subpoena Ms F but the subpoena was not appropriately served. The husband asserted in his evidence that Ms F was now living in the Country Z and that the relationship with her had broken down.
There was no explanation given by the husband for the failure to call Ms F as a witness, other than the fact that their relationship had broken down and that she had returned to the Country Z. There was no application filed on behalf of the husband for her to give evidence from the Country Z by telephone or video link.
The husband denied that Ms F had ever been his fiancé, but then admitted that he had previously said in an affidavit in relation to the children’s proceedings that they were planning to marry. The husband also gave evidence that he had spent considerable sums of money (which he alleged had been borrowed from his brother) paying for the living expenses of himself, the children and Ms F. His evidence was that he considered he was responsible for her living expenses whilst she was living with him.
I am satisfied that the husband was in a de facto relationship with Ms F for a considerable period of time up until early 2016. The difficulty is whether the relationship continues even whilst Ms F is resident in the Country Z and the husband resides in Australia. Ms F remained a director of WW Pty Ltd and the tenant of the premises in which the husband resided at the time of the final hearing. The husband was unable to explain this inconsistency save and except that he had been told by Ms F that she had resigned as director of the company.
Whilst there are significant inconsistencies which raised doubts about the veracity of the husband’s evidence it is not sufficient to establish on the balance of probabilities that the husband is still in a relationship with Ms F which needs to be considered in these property settlement proceedings.
Similarly, the wife’s evidence in relation to Mr A and her relationship with him was also inconsistent. At times, particularly in relation to the children’s proceedings, her relationship was clearly identified as a de facto relationship. There has also been evidence that until recently the wife and Mr A were in a close relationship.
The affidavit of Mr A could not be accepted as he was not available for cross-examination. The wife provided the Court with a copy of a text message sent by Mr A to the parties’ daughter Ms L. This message provided the Court with the wife’s explanation for her failure to call Mr A. The Court does not therefore draw any conclusion that his evidence would not have been of assistance to the wife.
For similar reasons given above in relation to the husband’s relationship with Ms F, the Court is not in a position to determine on the balance of probabilities that the wife is currently in a relationship with Mr A which needs to be considered in these property settlement proceedings.
During cross-examination the wife was asked many detailed questions in relation to drawings she had made from the ANZ loan accounts and the use to which these funds have been put since separation.
When confronted with the draw downs on the loan accounts and deposits into her personal account (Exhibit 18, tab 7) the wife’s evidence confirms that from beginning of November 2012 until middle of December 2012 the wife drew down, paid into her own account and subsequently withdrew from that account about $130,000.
It was also established that following reduction of the ANZ Bank arrears and principal using part of the proceeds of the J Street Unit Trust capital distribution, the wife withdrew from that fund and used a further $21,016 (Exhibit 18, tab 7).
The wife’s evidence was that she had taken these funds and had used them to pay the mortgages, living expenses, school fees and other costs associated with the former matrimonial home, such as water rates and council rates.
Whilst I accept that these transactions have been proven as monies withdrawn and used by the wife, I am not satisfied that the specific sums should be added-back to the assets to be brought into account. Rather I am satisfied that it is appropriate to take into account those drawings and the use by the wife as one of the factors under s 75(2)(o) for consideration when making the final adjustment.
Similarly, the interest which has accrued on the ANZ Bank mortgages since the husband has sought to have the property sold, is a factor which needs to be considered on the basis that I am satisfied that the wife genuinely believed that the husband had hidden significant assets and that she was therefore likely to retain the former matrimonial home at the conclusion of these proceedings.
The same principles apply to bringing into account the loan enforcement fees, Suburb EE rates and costs incurred by the wife in attempting to prevent the sale by the ANZ bank and defending the litigation by the E Superannuation Fund.
Assets and liabilities
For the reasons which I have given I find the following to be the relevant assets and liabilities of the parties to be brought into account:
Assets
1
Former matrimonial home – I Street, Suburb K
$2,150,000.00
2
Monies received from parties for sale of J Street Unit Trust
Wife
Husband
$58,944.00
$58,944.00
3
W furniture and effects in her possession as per O Valuers valuation
$15,055.00
4
W German motor vehicle
$6,000.00
5
W motor vehicle Japanese motor vehicle (as per O Valuers valuation)
$950.00
6
H proceeds of sale of boat and trailer
$1,000.00
7
H superannuation
$86,836.00
8
W superannuation
$4,361.00
Total Assets:
$2,382,090.00
Liabilities
1
ANZ Bank loans @ 26 September 2016 (being three loans
$429,930.00; $457,004.00 and $116,976.00)
$1,003,910.00
2
H and W debt to Independent Children’s Lawyer
$16,935.60
3
W debt to parents in relation to payment of Stone Superannuation loan
$248,000.00
4
W debt to Company II
$134,970.00
5
H debt to Mr BB
$120,000.00
6
H and W capital gains tax possible on J Street Unit Trust sale
$60,373.00
Total liabilities:
$1,584,188.60
NET ASSETS
$797,901.40
The figures above do not include the parties’ current bank accounts or their credit card debts owing at the time of separation. The figures do not include the substantial amount claimed by the wife as owing and outstanding in relation to school fees and other costs such as electricity and water rates, nor amounts due to various lawyers.
Considering the length of the relationship between the parties and the past financial arrangements wherein the husband and wife were involved together in private and commercial business undertakings, I am satisfied that there ought to be an adjustment of property as between the parties. It is therefore appropriate and just and equitable for an order to be made under s 79(2) (Stanford (supra)).
Consideration is now given to the relevant contributions and other matters required as set out in s 79(4) of the Act.
Section 79(4)
Contributions ss (a), (b) and (c)
The parties were married in 1987. There was a brief separation for approximately 10 months in 1999 when litigation was commenced. The parties then reconciled and continued to live together until final separation in May 2012.
There are three children of the marriage, Mr M (now aged 22), who now lives with the husband, Ms L (now aged 20), who now lives with the wife and R now aged 14. R lives with the wife. There is an order in place for him to spend time with the husband, but this has not taken place recently.
Although the parties lived together as husband and wife until the final separation in May 2012, there were significant periods when the wife cared for the children whilst the husband lived elsewhere on business.
On behalf of the husband it was maintained that he made a greater financial contribution at the commencement of the marriage and throughout the marriage.
It is accepted that the husband had an interest in blocks of land at the time of the marriage. There were also significant contributions from the husband’s family.
The evidence of the husband was that during the relationship the parties enjoyed a significant wealthy lifestyle mainly from business ventures.
For some time the husband’s business ventures were successful. There was also a significant period where the husband lost large sums of investments and established businesses which he said were not successful.
The evidence does not establish that the wife made a significant initial contribution financially to the assets of their marriage, nor that she made a significant contribution to the income or earnings of the family during the 25 year marriage, save and except that the husband made arrangements for assets and liabilities to be in the wife’s name.
It is not contested however that throughout the long marriage and since the separation, the wife has carried out significant duties as homemaker and parent. Some of those significant duties have been carried out by the wife whilst the husband travelled overseas or interstate.
The actual contributions by the parties, both financial and otherwise, should be considered equal. The wife’s greater contribution towards the care and upbringing of the children offsets the husband’s greater financial contributions.
When taking into account the claimed add-backs sought by the husband for the drawdowns from the wife since October 2012 (approx. $130,000 and $21,916) I take into account the evidence of the wife that some of these monies were spent by her on necessary outgoings such as some contribution towards the mortgages, council rates, water rates, electricity and other living expenses, including children’s school fees. It is therefore not appropriate to make a financial adjustment for the whole amount, nor is it appropriate to make a substantial percentage adjustment for the undefined remaining amount.
The contributions by the husband’s family Ms F and the wife’s parents are also factors to be considered.
The Court takes into account that the husband has not contributed to the mortgage repayments on the former matrimonial home, nor to the ongoing expenses and maintenance of the former matrimonial home, since the separation of the parties.
For these reasons and balancing the various factors it is appropriate to provide a further 5 per cent to the husband.
(d)the effect of any proposed order upon the earning capacity of either party to the marriage;
None of the orders proposed by either of the parties, or that which the Court might make, will have any effect upon the earning capacity of either the husband or the wife.
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage;
and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
The Court takes into account the orders that have already been made in relation to the arrangements for the child R, and the child support assessments which have been determined.
Relevant s 75(2) factors (s 79(4)(e))
(a)the age and state of health of each of the parties;
The husband was born in 1961 and is therefore aged 55. The wife was born in 1965 and is age 51 approaching 52.
There was no reliable evidence suggesting that the state of health of either of the parties was a relevant factor. Both parties have recently engaged in employment and travelled overseas.
(b)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;
There is obviously significant dispute about the income, property and financial resources of the husband. The husband maintains that he has minimum income and property. It is clear, however, from his own evidence that he has had significant financial resources supplied to him in the past which may be continued to be supplied to him from his family members (in particular his brothers Mr QQ and Mr BB).
Both parties have the physical and mental capacity for appropriate gainful employment. The husband has a history of some successful business management but also significant losses as a result of some business ventures.
The wife does not have the same standard of business capacity nor employment history. When these proceedings come to an end her physical and mental capacity for appropriate gainful employment may increase. The wife has a lesser ability to access financial resources than the husband.
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
The wife has the ongoing care and control of the child R. This is likely to continue.
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain;
The wife has commitments of housing and day to day living expenses necessary to enable her to support herself and R, together with the commitments in relation to Ms L, the adult child, who is undergoing university study.
The husband has only commitments necessary to support himself. Mr M who resides with him is employed. According to the husband the adult child Mr M is contributing to the support of the husband by paying the husband’s rent (the tenancy in the name of Ms F) and contributing towards the husband’s living expenses.
(e)the responsibilities of either party to support any other person;
Other than as set out above neither party has the responsibility to support any other person.
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
The wife is currently in receipt of a carer’s pension as a result of her ongoing care of her mother.
This small pension is not taken into account. The possible future superannuation has been included and treated as an asset of each of the parties.
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
Since the separation the husband has continued to reside in rental accommodation, enjoyed overseas travel and reasonable living standards. The wife has continued to live in the former matrimonial home, had the benefit of some travel interstate and overseas and spent considerable sums maintaining her lifestyle.
Taking into account the limited income that both parties now claim and the significant debts, it is not reasonable to consider it appropriate to maintain the high standard of living which is beyond the parties’ means.
Sections 75(2)(h) and (ha) are not relevant to these proceedings.
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
The wife asked the Court to consider continuing the maintenance order. To the extent that it requires consideration I accept that the wife has contributed to the earning capacity of the husband. This however is not a determining factor.
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
The marriage duration was 25 years. This has limited the current earning capacity of the wife.
(l) the need to protect a party whose maintenance is under consideration;
The Court takes into account the wife’s wish to continue her role as parent for the child R.
(m)if either party is cohabitating with another person – the financial circumstances relating to that cohabitation; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
These sections require the Court to consider whether either party has a relationship or is cohabitating with another person and the financial circumstances relating to that cohabitation or relationship. As previously indicated the Court is not in a position to determine, on the necessary standard of proof (balance of probabilities), that either the husband or the wife are cohabitating with any other person, nor that they can expect in the future support from those persons.
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party;
The Court also gives consideration to the terms of the order being proposed and those to be made when drafting the orders to ensure that they are just and equitable in all the circumstances.
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
The Court acknowledges that the child support has been directed to be paid by the husband to the wife and that he has recently commenced payment but is still in arrears. The child support determinations will continue to be assessed as appropriate. Any arrears owing at the time of these final orders should be paid to the wife from monies which would otherwise have been payable to the husband.
Taking all of the factors into account, and in particular considering the wife’s ongoing care of R, the husband’s past business experience, likely greater earning capacity and substantial greater financial resources represented by his family financial support it is appropriate, just and equitable to consider increasing the wife’s share.
This takes into account that previously in assessing the husband’s greater financial contribution an adjustment has already been made for the negative contribution or losses sustained by the conduct of the wife.
It is also necessary to consider the ongoing obligation by the wife to provide for the child R and the history of the husband’s failure to provide support to the wife for the care of the children.
An appropriate adjustment would result in each of the parties having a 50 per cent share of the net assets and superannuation after taking into account relevant liabilities.
Considering all of the evidence and the submissions I am satisfied that it is just and equitable for the net assets and superannuation of the parties to be adjusted in this manner.
If each of the parties were to receive 50 per cent of the net assets and superannuation, less liabilities, they would receive approximately $398,950.70 (say $398,951).
This would of course be subject to further costs of sale if the former matrimonial home were to be sold.
The wife has at all times wished to retain the former matrimonial home. If this were to occur pursuant to the orders of the Court the wife would need to borrow a considerable sum to pay the husband to ensure that he received a net balance of approximately $399,000. Taking into account the ongoing default of the payment to the ANZ Bank and the wife’s very small income it is unlikely that she would be able to borrow funds to make the necessary payment to the husband.
However, taking into account the wife’s vehement desire and past behaviour it is appropriate, just and equitable to provide the wife with an opportunity to obtain the necessary funds.
It is therefore appropriate to make orders which would provide for the wife with a limited option to retain the former matrimonial home but also to provide for the sale of the former matrimonial home.
The husband’s assets and liabilities are:
Description
Assets
Liabilities
Totals
Share of JSUT (Rec’d)
$58,944.00
Boat & trailer
$1,000.00
Superannuation
$86,836.00
Total assets:
$146,780.00
ICL costs
$8,467.80
Debt to Mr BB
$120,000.00
Half share of CGT on JSUT
$30,186.50
Total liabilities:
$158,154.30
Less total assets:
-$146,780.00
Total net liabilities shortfall:
$11,874.30
Leaving aside the former matrimonial home property and related mortgages the wife’s assets and liabilities are:
Description
Assets
Liabilities
Totals
Share of JSUT (Rec’d)
$58,944.00
Furniture & effects in possession
$15,055.00
German Motor vehicle
$6,000.00
Japanese Motor vehicle
$950.00
Superannuation
$4,361.00
Total assets:
$85,310.00
ICL costs
$8,467.80
Debt to parents
$248,000.00
Debt to Company II
$134,970.00
Half share of CGT on JSUT
$30,186.50
Total liabilities:
$421,624.30
Less total assets:
-$85,310.00
Total net liabilities shortfall:
$336,314.30
The former matrimonial home is valued at $2.15 million. The mortgages of $1,003,910 leave an equity of $1,146,090.
The total asset pool (after ANZ mortgages have been paid) is $797,901.40. Dividing this amount equally (50/50) each party would receive an amount of $398,950.70 each.
The husband would therefore receive:
Husband to receive:
$398,950.70
Plus net liabilities (shortfall):
$11,30,874.30
Total to be paid to H from W:
$410,825.00
It will therefore be necessary for the wife to obtain funds to enable her to make payment to the husband of $410,825 in a reasonable time. Orders will be made giving the wife that opportunity but making it clear that if she does not comply with the payment of the prescribed amount the former matrimonial home will have to be sold.
If the wife is unable to pay the amount due to the husband and the former matrimonial home is to be sold then the parties should receive an amount which represents an equal division of the assets and liabilities. That is calculated by ensuring that the debts owing by each of the parties are paid from the proceeds of sale of the former matrimonial home (with the amount for capital gains tax retained by the conveyancer or the husband’s solicitors)
If all of the recognised debts are paid from the proceeds of sale of the former matrimonial home it will then be necessary to make an adjustment taking into account the assets which each of the parties retain. Those assets to be included in the calculations are as follows:
Wife’s furniture and effects $15,055.00
Wife’s German motor vehicle $6,000.00
Wife’s Japanese motor vehicle $950.00
Husband’s proceeds of sale of boat $1,000.00
Husband’s superannuation $86,836.00
Wife’s superannuation $4,361.00
Total: $114,202.00
Half of this is $57,101. The wife is retaining the household furniture, the motor vehicles and her superannuation which totals $26,366. She is therefore entitled to a further $30,735. (The Court is not taking into account in these calculations the fact that the husband and wife have both received one-half of the proceeds of the J Street Unit Trust monies being, $58,944 each).
The capital gains tax assessed as payable in relation to the sale of the units in the J Street Unit Trust (the amount assessed by the expert ($60,373)) should be paid by the husband and wife in equal shares using the amount retained and making equal payments of any further sum required.
Each of the parties have permission to provide a copy of these reasons for judgment in this matter and the orders of this Court to the ANZ Bank or other financial institution provided that the recipients are informed that the judgment and orders of this Court are not to be provided to other sections or members of the public without specific authorisation from this Court.
For the reasons already given I consider that the property orders are just and equitable and appropriate within the terms of s 79 of the Act.
For the above reasons I make the orders which are set out at the commencement of these reasons.
I certify that the preceding three hundred and seventy-seven (377) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 12 December 2016.
Associate:
Date: 12 December 2016
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Remedies
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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