Bou & Wee
[2022] FedCFamC1F 475
Federal Circuit and Family Court of Australia
(DIVISION 1)
Bou & Wee [2022] FedCFamC1F 475
File number(s): SYC 2680 of 2017 Judgment of: BRASCH J Date of judgment: 30 June 2022 Catchwords: FAMILY LAW – PROPERTY SETTLEMENT – Where a just and equitable result requires alteration of the parties’ property interests
FAMILY LAW – PROPERTY SETTTLEMENT – Contributions - Where there was a long marriage as between the parties - Where neither party brought substantial assets into the relationship - Where the parties took gender traditional roles during the marriage Post-separation contributions - The weight afforded to a number of post-separation contributions – adjustment made
FAMILY LAW – PROPERTY SETTLEMENT – Future needs - Where the wife is the primary carer for the parties’ two children – Where the husband has fewer financial resources
Legislation: Evidence Act 1995 (Cth) s 140.
Family Law Act 1975 (Cth) ss 75(2), 79, 79(1), 79(2), 79(4), 102NA, 117(1).
Cases cited: Anastasio and Anastasio (1981) FLC 91-093; [1981] FamCA 76;
Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; [1981] HCA 1;
Babett & Falconer (2015) FLC 98-067; [2015] FamCAFC 124;
Cerini & Cerini [1998] FamCA 143;
Coghlan and Coghlan (2005) FLC 93-220; [2005] FamCA 429;
Dickons & Dickons [2012] FamCAFC 154;
Dovgan & Dovgan [2021] FamCA 306;
Halstron & Halstron [2022] FedCFamC1A 65;
Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143; [2003] FamCA 395;
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 53 LGRA 325; [1983] 3 NSWLR 378;
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Kildea v Kildea (2007) 38 Fam LR 347; [2007] FamCA 1524;
Manolis v Manolis (No 2) [2011] FamCAFC 105;
Mayne v Mayne [2011] FamCAFC 192;
M & M [1998] FamCA 42;
Omacini and Omacini (2005) FLC 93-218; (2005) FLC 93-218;
Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378;
Perrin & Perrin (No 2) [2018] FamCAFC 122;
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52;
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173;
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Division 1 First Instance Number of paragraphs: 167 Date of hearing: 27-28 June 2022 Place: Sydney Counsel for the Applicant: Mr Maurice Solicitor for the Applicant: Lawside Lawyers Counsel for the Respondent: Mr Cairns Solicitor for the Respondent: Inner West Solicitors Pty Ltd ORDERS
SYC 2680 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BOU
Applicant
AND: MR WEE
Respondent
order made by:
BRASCH J
DATE OF ORDER:
30 June 2022
THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
THE COURT ORDERS THAT:
Sale of the Suburb C property
1.No later than 28 days from the date of these Orders the respondent husband (“husband”) shall vacate the premises known as B Street, Suburb C, being folio identifier … ("the Suburb C property").
2.That the husband forthwith shall do all acts and things and sign all documents necessary to market the Suburb C property for sale and in particular:
(a)the husband shall list the Suburb C property for sale with a real estate agent to be agreed upon by the husband and the applicant wife (“wife”) within seven (7) days from the date of these orders;
(b)failing agreement to the agent in (a) above, the wife shall forthwith in writing nominate two agents from which the husband shall select one, within seven (7) days of receiving the wife’s list;
(c)failing a nomination by the husband of a real estate agent in (b), the wife shall select one, and that agent will be authorised by this order to be the appointed agent for the purposes of the sale of the Suburb C property ("the Agent");
(d)the husband shall execute all documents requested by the Agent for the sale of the Suburb C property including the Agent's contract in a form agreed upon by the husband and wife;
(e)in the event that the husband and wife cannot agree on the form of the contract in (d) within seven (7) days of the agent being selected, then the contract is to be in the Agent's standard terms and with the agent's standard fees;
(f)the husband shall give such instructions as are necessary to a legal practitioner agreed upon by the husband and wife within seven (7) days of the date of this Order;
(g)failing agreement at (f), the wife shall forthwith in writing nominate two legal practitioners from which the husband shall, within a further seven (7) days, select one ("the Legal Practitioner'');
(h)failing selection by the husband of a legal practitioner in (g), the wife shall select one who shall be the legal practitioner appointed and authorised by this order to be the appointed the Legal Practitioner for the purposes of the sale of the Suburb C property;
(i)the husband, by this Order, instructs the Legal Practitioner to discuss any aspect of the sale of the Suburb C property with the wife; and
(j)pursuant to s 121 of the Family Law Act 1975 (Cth)(“the Act”), each of the husband and wife are at liberty to provide a copy of this Order to the Agent and Legal Practitioner.
3.The husband shall market the Suburb C property for sale by public auction on a date within six weeks of the date of the selection of the Agent ("the First Auction") at a reserve price agreed between the husband and wife, and failing agreement in the sum of $365,000.
4.In the event that the Suburb C property does not sell at the First Auction, the husband shall market the Suburb C property for sale with the Agent by way of private treaty for a period of 12 weeks during which time he shall accept any offer made to purchase the Suburb C property within 2 percent of the reserve price for the First Auction, unless the husband and wife otherwise agree in writing.
5.In the event that the Suburb C property is not sold at the first Auction and is not sold in the period provided for sale by private treaty, the husband shall market the Suburb C property for sale by public auction with the Agent on a date within six weeks of the date of the conclusion of the period of sale by private treaty at a reserve price agreed between the husband and wife, and failing agreement 5 percent below the reserve price for the First Auction.
6.The husband shall attend any auction pursuant to these Orders and in the event the reserve price set for that auction is not reached, the husband shall negotiate with the highest bidder and the second highest bidder and shall accept the highest offer to purchase made within 5 percent of the reserve price set for that auction, unless the husband and wife otherwise agree in writing.
7.The husband shall execute the contract for sale in a form agreed to by the husband and wife, and in the event the husband and wife fail to agree on the terms of the contract for sale, then the terms recommended by the Legal Practitioner shall be adopted.
8.The husband shall co-operate in every way with the Agent in relation to the sale of the Suburb C property at all times requested by the agent and ensure the Suburb C property is in a neat and clean condition.
9.The husband shall execute all other documents necessary to complete the sale within the time required by the contract for sale to ensure that the purchasers do not have right to terminate or rescind due to failure to do so.
Distribution of proceeds
10.That on settlement of the sale of the Suburb C property, the husband and wife shall do all acts and things necessary to distribute the proceeds of sale in the following manner and priority:
(a)discharge the Westpac bank mortgage over the Suburb C property and D Street, Suburb E, being folio identifier … ("Suburb E property");
(b)payment of the agent's commission, marketing and advertising costs, auctioneer's fees and any other expense properly incurred in respect of the sale of the Suburb C Property;
(c)payment of the legal costs of sale;
(d)payment of any amount outstanding to any water authority or local council in respect of the Suburb C property not otherwise taken up as a credit in favour of the vendor;
(After the payment of (a) to (d), the balance is then the “net proceeds”)
(e)payment of such sum from the net proceeds to each of the husband and wife to affect an overall adjustment of the pool available for division in the amount of 60 percent to the wife, and 40 percent to the husband, using the following formula:
(i)D Street, Suburb E, to be retained by the wife at a value of: $420,000;
(ii)funds at WESTPAC A/C …72, to be retained by the husband at a value of: $135;
(iii)funds at F Bank Country G A/C …09, to be retained by the husband at a value of: $8,973;
(iv)funds at Commonwealth Bank of Australia A/C …60, to be retained by the husband at a value of: $310;
(v)funds at Commonwealth Bank of Australia A/C …52 to be retained by the husband at a value of: $7,031;
(vi)Motor Vehicle 1 registration number … to be retained by the husband at a value of: $8,500;
(vii)Motor Vehicle 2 registration number … to be retained by the husband at a value of: $1,450;
(viii)household Contents & Personal Property to be retained by the husband at a value of: $927;
(ix)funds at WESTPAC A/C …00 to be retained by the wife at a value of: $19,435;
(x)Motor Vehicle 3 to be retained by the wife at a value of: $10,000;
(xi)household Contents to be retained by the wife at a value of: $1,500
(xii)Superannuation Fund 1 to be retained by the husband at a value of: $7,779;
(xiii)Superannuation Fund 2 to be retained by the wife at a rounded value of: $34,064; and then add
(xiv)the net proceeds.
(the total being “the pool available for division”)
The Suburb E property
11.Upon settlement of the Suburb C property sale, the husband shall transfer all of his right, title and interest in the Suburb E property to the applicant, and the applicant be declared the sole owner of the Suburb E property.
Personal property
12.The wife will retain any other property or liability standing in her name not otherwise provided for in these Orders.
13.The husband will retain any other property or liability standing in his name not otherwise provided for in these Orders.
Other
14.That the parties do all acts and things necessary to give full force and effect to these Orders.
15.That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to s 106A of the Act, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
16.The parties have liberty to re-list the proceedings on matters of interpretation or implementation of this Order, on the giving of seven days’ notice to the other, by email to associate via (…@...) copying the other party.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bou & Wee has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE JUDGMENT
BRASCH J:
INTRODUCTION
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
These are final property proceedings only, with the parties having determined the parenting component by Final Consent Orders of 27 October 2021.
The proceedings were initiated by Ms Bou, born in 1977 (“the wife”). At the final hearing, the wife sought orders as set out in her Amended Initiating Application filed 20 September 2021. In summary, the wife sought orders that: a property at Suburb C be sold; the proceeds of sale of the Suburb C property be applied to discharge the consolidated mortgage against the titles to both the Suburb C property and the former matrimonial home at Suburb E; the balance of sale proceeds go to the husband; the wife retain the Suburb E property; and that each keep personal property in their own names. The wife had sought orders about a property in Country G (that was added by her Case Outline), and also loans said to be owed to family members, but those disputes fell away during trial.
The respondent husband, Mr Wee, born in 1960 (“the husband”), sought orders as set out in his Amended Response filed 19 October 2021. In summary, he sought very similar but opposite orders to the wife, the effect of his orders were that: the former matrimonial home at Suburb E be sold; the proceeds of sale of the Suburb E property be applied to discharge the consolidated mortgage against the titles to both the Suburb C and Suburb E properties; he retain the Suburb C property; the net proceeds of sale be split in equal shares; the wife keep the property in Country G; and that each keep personal property in their own names. The husband had also sought orders about loans said to be owed to family members, but the dispute as I have said about family loans, fell away during trial, as did the issue in relation to the property in Country G.
BACKGROUND
Both the husband and the wife (“the parties”) were born in City H, Country G. The parties were married in City H in 2004 and began cohabitation in 2004 in Australia when the wife migrated.
The parties have two children. X, born in 2007, (“X”) and Y, born in 2009, (“Y”) (“the children”). By consent orders made on 27 October 2021, the children live with the wife and spend time with the husband. That Order required the husband to fulfil a number of conditions precedent, before his time would graduate to a week- about arrangement. At the time of trial, the children were still spending time with their father three times a week during the day.
The parties separated under the same roof in August 2016. This arrangement remained until the husband left the former matrimonial home on 15 January 2019, following the wife’s reports to police of family violence. The husband was charged with one count of common assault and one count of assault occasioning actual bodily harm committed against the wife. The husband lodged an appeal against the conviction but it was dismissed.
The husband was sentenced to a Community Corrections Order for a period of 2 years in addition to an Apprehended Domestic Violence Order being taken out for the protection of the wife for a period of 2 years from 31 May 2019.
It is common ground that the husband has not paid periodic, assessed child support to the wife since their separation in August 2016, although he contended that for a period after separation, he made other payments directly to service providers as and when he chose. At trial, when questioned about his financial support of the children, he was resolute in his answers, that since January 2019, “I have paid enough.”
DOCUMENTS RELIED UPON
The applicant wife relied upon the following documents:
·Amended Initiating Application filed 20 September 2021;
·Affidavit of Ms Bou filed 20 September 2021;
·Affidavit of Ms Bou in reply filed 5 October 2021;
·Financial Statement filed 20 September 2021;
·Affidavit of Ms J filed 5 October 2021;
·Affidavit of Ms K filed 5 October 2021 (an affidavit from the interpreter attesting to her qualifications and her actions as an interpreter in this matter);
·Parenting Orders made 27 October 2021;
·Case Outline filed 20 June 2022; and
·Written submissions handed up at the end of hearing (Wife’s Exhibit 3).
The respondent husband relied upon the following documents:
·Amended Response of Initiating Application filed 19 October 2021
·Affidavit of Mr Wee filed 21 September 2021
·Reply Affidavit of Mr Wee filed 5 October 2021
·Financial Statement filed 21 September 2021; and
·Case Outline filed 23 June 2022.
Both parties provided a court book, but I indicated to the parties that I would only receive into evidence any pages which they specifically referred me to during the hearing.
Both parties’ Case Outlines and written submissions for the wife were based upon arguments about, amongst other things, whether the Country G property was included or excluded in the balance sheet. The wife’s submissions also had an alternative proposition that if I did not accept the property was a financial resource, then it be placed in a second asset pool. Those arguments fell away with the parties’ agreement that I treat it as a financial resource.
As such, I acknowledged to counsel when making their oral submissions (and confirmed by them back to me) that I would overlook those parts of their written documents, which referred to the controversy about whether the City H property was an asset or not, and the calculations that had been made by the wife about it being in a second asset pool.
The parties provided a list of issues and a joint balance sheet on day two of trial, which were respectively marked Court’s Exhibits 1 and 2. In total five documents were tendered and marked as exhibits.
Both the wife and husband were cross-examined, as was the wife’s mother.
Mr Maurice, of counsel represented the wife and Mr Cairns, of counsel represented the husband by a s 102NA Order made on 8 July 2021.
The standard of proof in this case is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides:
(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.
It is well settled that it is not necessary for a trial judge, in reaching a decision, to refer to every piece of evidence or argument presented during the trial. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, Gleeson CJ, McHugh and Gummow JJ said this:
…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case [62].
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
ISSUES
The parties asked me to determine the following matters, which I have slightly amended, as indicated with underlining. As the trial progressed several issues fell away, which, with the consent of the parties at the time of hearing, I strikethrough:
·What holistic assessment ought be made of:
a.The initial financial contributions of the parties.
b.All other financial and non financial contributions during the marriage
and up to date including the husband’s assertion of the wife’s interest in [L Street City H] of [Country G].c.The parenting contributions by the parties during the marriage and after separation.
·How to treat the sum of $101,600 withdrawn and expended by the husband without the wife’s consent around or after the time of separation and specifically whether all or any part of it ought to be treated as a premature distribution of marital property.
·How to treat the sum of $30,431 withdrawn and expended by the wife without the husband’s consent in 2016 from their joint offset account and specifically whether all or any part of it ought to be treated as a premature distribution of marital property.
·The significance as to contributions of the husband not paying child support for the 2 children to the wife since August, 2016.
·The significance as to contributions of the children spending minimal time with the children from 15 January, 2019 to date.
·The significance of the wife and children having sole use and occupation of the former matrimonial home since physical separation in January, 2019.
·How to characterise the home in [City H Country G] owned by the wife and her wife being the residence of her parents.·Whether the sum of $50,000 (Affidavit of Ms J filed 5.10.21 paragraph 10) or some other sum is due and repayable by the wife to her wife.·Whether the sum of $10,000 or some other sum is due and repayable by the husband to [Mr M].·Whether there should be an adjustment under sec 75(2) in favour of either party
A further issue arose on the balance sheet which was not reduced to an issue on the list, being the balance of legal fees owing by the wife, in the sum of $35,000. The wife said that liability ought be included in the balance sheet. The husband resisted that inclusion.
A final issue on the balance sheet (and again not included in the above list) was whether the chattels in the wife’s possession were worth $1,500 as the wife contended, or $4,700 as the husband contended.
LEGAL PRINCIPLES
With respect to the parties’ dispute regarding the division of their property, s 79 of the Act sets out the following:
(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
…
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
…
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.
In exercising that discretion, the court is required to take into account the matters set out in s 79(4) of the Act, as follows:
(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.
The High Court in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”), at [35] confirmed that before an order is made adjusting the parties’ property, the court is required to make a determination that it is just and equitable to do so. That determination is to be made, however, not as a discrete or preliminary issue but requires the Court to consider the matters set out in section 79(4) of the Act.
In the leading case of Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143, the Full Court held at [39] that, in considering the matters set out in section 79 (4) of the Act the preferred approach was to adhere to the following four step process:
(a)Identify and determine the value of the asset pool of the parties as at the date of the hearing (this necessarily involves identifying both the assets and liabilities);
(b)Identify and assess each of the parties’ financial and other contributions up until the date of the hearing (this can include the financial contributions made before, during and after the marriage);
(c)Assess how future and other events may have a financial impact on either of the parties, such as their age and state of health and their income and property or financial resources (known as the s 75(2) factors); and
(d)Step back and examine this formula-based reasoning against the history of the marriage, intangible considerations and other contingencies so as to consider whether the outcome represents a just and equitable result.
This four step approach has been endorsed many times: see, for example, Manolis v Manolis (No 2) [2011] FamCAFC 105 at [63] (per Coleman, May and Ainslie-Wallace JJ); Kildea v Kildea (2007) 38 Fam LR 347 at [104] (per Finn, May and Boland JJ); Coghlan and Coghlan (2005) FLC 93-220 at [22] (per Bryant CJ, Finn and Coleman JJ) and [142] (per O’Ryan J). However, as the High Court noted in Stanford at paragraph 35, the Act provides that the Court shall not make an order altering the interests of the parties to the matrimonial property, “unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.” Accordingly, since Stanford, it has generally been the practice of the Court to determine, as an initial issue, whether it is just and equitable to make an adjustment of marital property.
The Full Court in Perrin & Perrin (No 2) [2018] FamCAFC 122 cited at [57]–[58] with approval, the decision in Babett & Falconer (2015) FLC 98-067 at [44]:
Within the family law context, those comments [in respect to the adequacy of reasons] should be seen as reinforced by the fact that the nature of the s 79 inquiry is, in essence, a broad discretionary assessment, which is neither an accounting nor mathematical exercise and which, effectively as a corollary, requires a "broad-brush approach." (Citations omitted)
Is it just and equitable to make a property adjustment?
With the breakdown of the parties’ relationship in this matter and their myriad of contributions (to which I refer later in these Reasons) over more than a decade, I find the husband and wife comfortably fit within Stanford, supra, particularly at [42].
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
I thus find it is just and equitable to make a property adjustment order. The parties did not contend otherwise.
The Balance sheet
Whether the wife’s interest in the property in Country G ought be included in the balance sheet as an asset was initially in dispute. However, as the trial progressed, it was appropriately agreed that the real property would fall under the Financial Resource category. I agree that this was an appropriate approach; the evidence before me was scant, if non-existent, in terms of understanding whether it may have been an asset within the understanding of “property” and “assets” within the Family Law Act.
The wife’s mothers’ will, made under Country G law was:
(a)in dispute about whether the wife’s mother had signed it or not; and more so
(b)I had no evidence to help me to understand the effect of the alleged will.
Similarly, the parties no longer pressed for the inclusion of loans said to be owed to family members, at least three of which were statute barred (see Halstron & Halstron [2022] FedCFamC1A 65 (13 May 2022) (McClelland DCJ, Austin & Gill JJ).
I now deal with the balance of pool issues in dispute, and I will do them in turn.
How to treat the sum of $101,600 withdrawn and expended by the husband without the wife’s consent around or after the time of separation and specifically whether all or any part of it ought to be treated as a premature distribution of marital property.
How to treat the sum of $30,431 withdrawn and expended by the wife without the husband’s consent in 2016 from their joint offset account and specifically whether all or any part of it ought to be treated as a premature distribution of marital property.
Each of these matters fall within the rubric of add backs.
The Full Court held in Omacini and Omacini (2005) FLC 93-218 (“Omacini”) that addbacks fall into “three clear categories”: where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets; and “waste” or wanton, negligent, or reckless dissipation of assets. [30]
However, the Full Court also made it clear that an addback does not necessarily occur whenever “a party has expended money realised from the disposition of assets that existed as at the date of separation”, the Full Court describing such a proposition as “unduly simplistic” at [39]. An earlier Full Court made the same point, saying that adding back is “the exception rather than the rule” (Cerini & Cerini [1998] FamCA 143 at [46]).
The fundamental precept that addbacks are exceptional, reflected in the decisions just referred to, which in turn refer to a long line of authority, also mirrors what has been said in earlier decisions of the Full Court, for example, “the Family Court must take the property of a party to the marriage as it finds it” at trial (Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 at 355. See also, Stanford, supra). An important parallel proposition is that the parties do not “go into a state of suspended economic animation” after separation (M & M [1998] FamCA 42 at [2.11]. Thus, reasonably incurred expenditure does not usually come within accepted categories of addbacks.
As was highlighted in the more recent Full Court decision of Trevi & Trevi (2018) FLC 93-858 at [30] two fundamental premises emerge from Omacini and the authorities preceding it. First, “adding back” is a discretionary exercise. When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it. The second premise is its corollary: in cases that are not “exceptional” justice and equity can be achieved, not by adding back, but by the exercise of a different discretion – usually taking the matter up as a relevant s 75(2) factor. Indeed, it has been said that the latter is “a course which is, perhaps, technically more correct” than adding back to the list of existing property.
The wife said the $101,600 withdrawn by the husband in about 9 transactions (see wife’s evidence in chief at [60]) in the lead up to final separation in August 2016 ought be added back, submitting it was “exceptional” because:
(a)he did so without the wife’s consent; and
(a)he had not explained the use of the funds.
In his affidavit in reply at paragraphs [51] and [53], the husband said he had taken $86,300 and at paragraph 53 all of the other sums in the wife’s table he disputed though he had taken the $8,500 in that list. He said the wife took the $8,500 to buy a car. This was denied by the wife in cross-examination. I need not trouble myself with the car; as the husband accepted in cross-examination, it found its way in to the balance sheet in any event.
In cross-examination, the husband said he applied appropriately $50,000 to mortgage repayments and the balance to bills, living expenses, and expenses for the children. This was in a period of time when from August 2016 to August 2017 he paid the home loan and expenses from these funds, and then from August 2017 to August 2019 where he and the wife paid approximately half each.
The husband was also asked in cross examination: “you drew $86,000 and paid back $50,000 [to the mortgage]”. The husband agreed. It was then suggested to him that he was “$36,000 in the red.” He explained he spent the rest on expenses and “on the kids.”
I pause to note at this time neither party was earning anything but a bare wage.
At the end of the evidence, I understood the wife’s submissions to be that whilst the $50,000 had been taken from matrimonial accounts, it was also applied to matrimonial debt – it was submitted “I accept that money was in and out” of matrimonial facilities and that he was “robbing Peter to pay Paul.” It was suggested that the balance of the funds withdrawn by the husband was not used for the purposes stated, being bills, expenses and children’s expenses.
I am not satisfied that the husband’s use and application of matrimonial funds was exceptional. True, he took matrimonial money without the wife’s consent, but I accept he applied it to matrimonial facilities or for living expenses. In the circumstances of the parties’ meagre earnings, it is hard to see how else those payments would have been made.
I also do not accept that the husband withdrawing the money without the wife’s consent put the withdrawals into the league of “exceptional”. The parties were separating and in a state of distrust, as is so common on separation. Indeed, each secured funds without the consent of the other to live and meet financial commitments. Neither suggested the other spent the monies on anything extravagant.
In these premises, I do not consider his conduct to be exceptional. It is not an affront to justice. Nor do I considered his transactions to be reckless, wanton, wasteful or negligent. I also do not consider that taking matrimonial funds and applying it to other matrimonial entities or expenses constitutes a premature distribution of matrimonial funds. As I have referred in earlier authorities, the parties are not required to go into suspended economic animation.
For those reasons, I will not add-back the $101,600 withdrawn by the husband.
As for the wife, whilst (ironically) one basis for her own add-back sought against the husband was that his withdrawals were without her consent, so too the wife withdraw funds at separation without the husband’s consent. The husband sought an add back against the wife of $30,431, comprised of three withdrawals ($11,700, $3,675, $15,056).
The husband was asked whether the $11,700 was taken by the wife in 2015, being prior to separation, to visit Country G. The husband disputed the amount of $11,700 and said it was $6,500. Whatever the actual amount, the parties were still together and it seemed from the questions and answers that the wife applied the monies to go to Country G.
The husband was cross-examined about the wife’s withdrawal of $3,675, but it is not clear to me where that sum came from or when it was withdrawn. The husband denied the wife used it for children’s expenses. The wife was not cross-examined about this. In the scheme of things, I will apply the de minimus principle to this sum and decline to further consider it as an add-back.
The $15,056 was withdrawn by the wife on 19 August 2016, after she discovered the husband’s withdrawals. It is often the case upon separation that parties secure matrimonial funds for their own use. Both parties have done that here. In circumstances where the wife saw the husband had taken matrimonial funds out of her access, it is understandable why she also did the same with the balance.
Accordingly, I do not accept her withdrawals were reckless, wanton, wasteful, negligent or reckless. I also do not consider any of her withdrawals were a premature distribution of matrimonial funds. In short, there was no affront to justice.
I accept and agree with the husband’s submissions that there was nothing exceptional about any of the proposed addbacks, including that sought by the husband.
In the premises, I will not add back the $30,431 sought by the husband, against the wife.
Legal fees owed by wife
The wife sought to add a liability of $35,000 into the balance sheet, being legal fees owed by her.
It was submitted that because the husband had the benefit of s 102NA lawyer, then adding the wife’s liability for legal fees owed by her would “level the playing field.” I do not accept that to be so.
Instead, as the wife’s counsel accepted, if the legal fees owed by the wife went into the balance sheet, it would have the effect of the husband subsidising the wife’s payment of legal fees that she owes. That would offend s 117(1) of the Act which starts from the position that each party bear their own costs.
I decline to add the legal fees owed by the wife as a liability in the pool.
The chattels
A final issue on the balance sheet was whether the chattels in the wife’s possession were worth $1,500 as the wife contended, or, $4,700 as the husband contended.
I have no evidence or submissions to support either proposition. Doing the best I can, I will adopt the wife’s figure simply as an admission against interest.
The balance sheet
Accordingly, I find the balance sheet to be as follows:
Ownership Description Value ASSETS 1 H + W D Street, Suburb E $420,000 2 H B Street, Suburb C $365,000 3 H Funds at Westpac A/C …72 $ 135 4 H Funds at F Bank A/C …09 $ 8,973 5 H Funds at CBA A/C …60 $ 310 6 H Funds at CBA A/C …52 $7,031 7 H Motor Vehicle 1 $ 8,500 8 H Motor Vehicle 2 $ 1,450 9 H Household Contents & Personal Property $927 10 W Funds at Westpac A/C …00 $19,435 11 W Motor Vehicle 3 $10,000 12 W Household Contents $1,500 Total $843,261 LIABILITIES 13 H+W Westpac Loan A/C …40 $ 243,378 Total $ 243,378 SUPERANNUATION Member Value 14 H Superannuation Fund 1 $7,779 15 W Superannuation Fund 2 (rounding up the 88 cents) $34,064 Total (the parties said $40,053 but those maths are wrong) $41,843 TOTAL POOL: $641,726
(but subject to the sale of Suburb C)
Ownership Description Value FINANCIAL RESOURCES W L Street City H, of Country G. $829,500 Contributions
The Court is required to make an assessment of the nature and quality of the totality of the parties’ contributions throughout the entirety of their relationship, together with their contributions in the period subsequent to their separation. In Dickons & Dickons [2012] FamCAFC 154, [14] (Bryant CJ, Faulks DCJ, Murphy J); Jabour & Jabour [2019] FamCAFC 78, [61] (Alstergren CJ, Ryan and Aldridge JJ). See also Dovgan & Dovgan [2021] FamCA 306, [347] (Harper J), where Harper J restated the need to holistically assess contributions following the case of Dickons, and that “all contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder.”
Whilst I do use traditional, temporal contribution sub-headings below, I do so simply to assist in identifying the myriad of contributions made by the parties. I then, consistent with authority, assess all contributions holistically.
Under the consideration of the parties’ contributions, the parties frame the following issues:
What holistic assessment ought be made of:
The initial financial contributions of the parties.
All other financial and non financial contributions during the marriageand up to date including the husband’s assertion of the wife’s interest in [L Street City H, of Country G].
The parenting contributions by the parties during the marriage and after separation.The significance as to contributions of the husband not paying child support for the 2 children to the wife since August, 2016.
The significance as to contributions of the children spending minimal time with the children from 15 January, 2019 to date.
The significance of the wife and children having sole use and occupation of the former matrimonial home since physical separation in January, 2019.Initial contributions
At the commencement of the parties’ relationship, the husband owned a two-bedroom unit at Suburb C subject to a mortgage. It was the wife's assertion that at cohabitation in 2014, the equity was about $50,000; being a value asserted by her of $150,000 and a mortgage of $100,000 (wife’s evidence in chief at [36]). In cross-examination, the wife said that she based the $150,000 value on advertising she saw in 2004 for another comparable unit in the husband’s complex. She however had no evidence of this.
It was the husband's evidence that this Suburb C property was purchased in November 2001 (husband’s affidavit at [32]) but then at paragraph 35 he said February 2002, for $138,000. He said that by the time of marriage in May 2004, it was valued at $210,000. He said the mortgage was about $100,000 (husband’s evidence in chief at [32] and [35]). He too, had no evidence to support such an increase in value in less than three years using his November 2001 purchase date, or just over two years using his February 2002 date. On the husband's case the equity in Suburb C at 2004 was about $110,000.
I am prepared to accept that the equity in the husband’s unit at the start of the relationship was in the vicinity of $50,000; I do so as an admission by the wife against her interest. Further, unlike the husband, the wife had at least some basis for her view of the increase in value, being the advertising in the same unit complex for a comparable unit. I certainly do not find that evidence determinative of the issue – indeed, advertising for sale is not indicative of value, rather a price at which the prospective vendor is testing the market. But doing the best I can on the paucity of evidence, I will accept the wife’s admission against interest. I also accept the wife’s submission questioning how, absent supporting evidence, the property would have increased in value as the husband claimed, in just on two years, or just less than three years depending which purchase date is used.
In any event, what is perhaps more important than an actual specific dollar figure of this initial contribution is what use was made of this property by the parties. In March 2006 the parties bought a two-bedroom unit in Suburb E for $240,000. The Suburb C and Suburb E properties were cross financed to a total debt of $370,000. However, I have no evidence to assist me in understating the value of Suburb C on the re-finance; the best the husband provides is at his paragraph [41]: “In May 2006, I was able to use the equity of my Suburb C property to help purchase the Suburb E property with the Applicant.” I do not know what that means in any substantive sense.
Nevertheless, whatever the equity in Suburb C, it was something that the bank could utilise to assist in the purchase of Suburb E [property]. That was a contribution made by the husband, but one that I cannot ascribe specific worth or value to.
Finally, in dealing with the parties’ respective contentions about specific values of the husband’s initial contribution of the Suburb C property, I pause to note what the Full Court said in Jabor and Jabor (2019) FLC 93-898 - that it is important to not isolate one form of contribution, for example, an initial contribution, and measure other contributions against it. As I have been at pains to say in my consideration of legal principles, and in conversing with counsel at the trial, the assessment of contributions is one that is holistic.
For that reason, I will resist the husband’s position that I assess initial contributions to favour him in the vicinity of 5 to 10 percent. That, with the greatest respect, will lead me into the kind of error about which Jabor speaks; for example, at [43]:
We consider that the decisions in Baker and Bilous indicate that the Court in Williams somewhat overstated the importance of the increase in value of a piece of property at the expense of “the myriad of other contributions that each of the parties has made during the course of the relationship” (Williams at [26]).
See also [73]:
As can be seen the primary judge weighed the myriad of contributions made by the parties against the contribution made by the husband by bringing in Property A rather than treating Property A as one of the myriad of the contributions made.
I will include this initial contribution made by the husband (and indeed that of the wife, which I turn to next), in my overall assessment of the many and varied contributions made by the parties.
In the meantime, the wife said she contributed $10,000 in 2004 and that it was applied to the husband’s mortgage over the Suburb C property. The husband, denied the $10,000 was applied to the mortgage but rather in submissions on his behalf (and supported by the wife’s mother in her cross-examination) that the money was applied to travel costs for the wife to migrate from Country G to Australia to join her husband in 2004.
Counsel for the husband appropriately accepted that the $10,000 was a contribution by the wife, and that at the end of the day it did not particularly matter whether the money went directly to the mortgage, or, the money went to travel because in the latter circumstance, the money would otherwise have to be found from matrimonial sources anyway. It was, in the circumstances, swings and roundabouts.
Contributions during the course of the parties’ relationship
The parties purchased the former matrimonial home (the Suburb E property) in 2006 as joint tenants. In order to purchase the property, as I have already referred to the Suburb C and Suburb E properties were cross financed to a total debt of $370,000 and the wife says she made a $25,000 contribution from her savings. She said she then closed her personal bank account once the Suburb E property was purchased and the parties then held a joint offset account. The husband however retained his personal bank accounts.
The husband denied the $25,000 contribution by the wife, but said each deposited about $8,000-$9,000 into an offset account.
The wife was employed as a manual worker for the period or 2004 to 2009, earning approximately $500 per week before tax. The wife took six months’ maternity leave in 2007 after the birth of the parties first child. She remained in that position until the birth of the parties second child whereby she ceased paid employment outside the home to become, for a period of time, a full time homemaker and parent.
During the period of 2004 to 2008 the husband was working for N Company and earning approximately $500 per week. The husband left this employer to work as an instructor, his average taxable income became $500 per week. I say average; he had greater weeks sometimes than others.
The wife returned to the workforce in 2013 as an assistant working five days per week. She was earning approximately $993 per week prior to the Covid pandemic. In 2020, her hours were reduced to one or two days per week resulting in her earning capacity diminishing to approximately $200 per week. During this time the wife was receiving Centrelink allowances. I acknowledge that the last reference in 2020 of course falls within the post-separation period.
During the relationship the husband acknowledged that in 2014 the wife, through her family, applied $10,000 into the mortgage account. The husband said his family also gave him $5,000 for the mortgage account in 2014 (husband’s evidence in chief at [60]). The wife did not address this in her affidavit in reply, so I accept that to be so.
For the period of 2014 to 2019 (acknowledging some of this is post-separation albeit under one roof), the husband (eventually) accepted that the wife was earning more by way of income. It was also clear on the husband’s tax returns from 2015 to 2017 (again some of which is post separation), that he could not have been able to meet mortgage payments and family expenses alone. He accepted that to be so, then qualified statements made in earlier affidavits (as was put in cross-examination) that he was the sole income earner until the second child was born, not the duration of their relationship.
As the issues defined by the parties’ reveal: “All other financial and nonfinancial contributions during the marriage” were in dispute. But having heard the evidence, save perhaps for the contest with respect to initial contributions and contributions once the husband and wife physically separated in 2019, the contest was otherwise illusory.
Whilst each claimed to earn more during the relationship and each claimed to care more for the children, what I observed, and indeed will find, was that during the relationship these parties worked as an economic and family union, with each of them contributing as best they could to the myriad spheres over which contributions are assessed. See Jabour v Jabour [2019] FamCAFC 78. See also Anastasio and Anastasio (1981) FLC 91-093 at [15]:
Marriage is for most partners an economic union. The parties to a marriage in the main work together strive together with the ultimate object of buying a home and acquiring other assets. What happened in the present case is no different to what occurs in thousands of marriages throughout the country.
That observation is just as apt to this case, as it is to thousands of marriages throughout the country.
As I also indicated to counsel during the hearing, I do not intend to undertake a forensic assessment or audit of how the parties chose to live their lives when together; see for example Mayne v Mayne [2011] FamCAFC 192 at [79], albeit that was in the circumstances of add backs, but an observation just as relevant to the approach the parties took in this matter as to who did what and earned what during the relationship:
It is not the Court’s function to conduct an audit of the marriage or of the relationship finances. The parties’ remedies for resolving disputes about expenditure while they are together are centred on them and them alone. [the paragraph then goes on to talk about add-backs]
As mentioned, it was certainly the case that between 2014 and 2019, again a post-separation period, the wife earned more income than the husband. But there were times of course when the wife was on maternity leave and the husband was the income producer. There were other times they were both earning incomes of different amounts. That is the nature of a relationship.
Similarly, they both disputed who had greater care for the children during the relationship. The husband even questioned the quality of the wife’s care of the children, yet he had entered into a consent order that will see the children spending week about with each parent, once he has fulfilled the conditions therein. In other words, on his own case, her parenting, that is homemaker contributions, must have been good enough.
Their parenting during the relationship is yet another example of how they each contributed where they could, depending on who was working outside the home, who was not, and the differing hours they were engaged in.
I accept the husband’s submissions that during the relationship both worked, and both cared for the children. I accept his submission that for a large part of the time the wife's income was greater than the husband’s. I accept his submission that during the relationship, through their combined efforts, they were able to acquire a second property. The gravamen of that submission was they each contributed what they could and where they could.
Post separation contributions
The parties separated under one roof in August 2016. Their physical separation was not until January 2019.
For the year after separation, the husband was at pains to highlight how he had solely made the mortgage payments, but also accepted the source of those payments was the withdrawal of matrimonial funds he had made at separation. In other words, he paid the mortgage from joint funds. He also had the benefit of access to rental income from the Suburb C property to apply to expenses, but that Suburb C property was, within the terms of s 79, which speaks of, “the property of the parties to the marriage or either of them” - in other words, the Suburb C property and its rent was matrimonial property too.
Between August 2017 and January 2019, it was the wife’s position that all family costs including the mortgage were essentially shared.
The husband’s evidence was hard to follow in this regard. He did however seem to finally accept they were sharing expenses, but would quibble that her deposits to a bank facility was not for mortgage payments, but for utilities; it matters not - the money went, in effect, into the matrimonial consolidated revenue. He also accepted (as mentioned before), that the wife earned more income than him from 2014-2019, and that between 2015 and 2017 he did not have sufficient evidence to service the mortgage and meet all expenses alone. I note that parts of those periods of time that I have just given include what occurred during the relationship here I am concentrating on that which is post-separation.
What is clear is that prior to physical separation in January 2019, both parties were earning modest amounts of money and contributing as they could.
However, it is common ground that from January 2019 (physical separation) to the date of trial, the wife paid the entire mortgage secured over both the Suburb C property in which the husband resided and the Suburb E property in which she and the children resided. That is a significant contribution.
It is common ground that up to January 2019, the husband would sometimes contribute to the children's expenses, but this was when he chose, in amounts he chose, and, paid directly to external service providers; he accepted that in cross-examination. From January 2019, he made no more contributions to the children’s expenses as he had “paid enough”. That too adds to the contributions on the part of the wife.
I have no hesitation in accepting the submission from the wife that:
from January 2019 to date the wife has paid the entire mortgage those for all done in [Suburb E] as well as the majority of children's expenses. This means she has paid the entirety of the mortgage and supported both children without child-support on her own since January 2019.
the husband on the other hand has lived in [Suburb C] for those 179 weeks without having to pay any mortgage payments. He claimed the wife failed to pay the mortgage for a full year but there was no evidence of that.
The wife has borrowed a total of $50,000 from her parents post separation out of financial necessity.
I pause to observe that that $50,000 is not being sought, appropriately as a liability in the pool. The wife was not, in any event, challenged about this.
The husband’s counsel, appropriately, did not cavil with the submissions I have just quoted above. Indeed, his client, the husband accepted this to be so, saying several times, as mentioned that when he left the home in January 2019, he had “paid enough” for the children. Once he said he considered he had paid “too much”. The children are 15 and 12 years of age. That does him no credit and simply highlights that this burden fell upon the wife.
Still with post separation contributions, it is also the case that the children have been in the primary care of the wife living with her, and spending limited daytime time with the husband. Nevertheless, the husband maintained that three lots of daytime time with the children during each week amounted to equal time. Reluctantly, he eventually conceded that the children go to bed each night at the wife’s home. As a corollary I add they obviously wake up each morning at her home too.
The husband eventfully and reluctantly conceded that when he spoke of the children having equal time with him, the actual amounts of time the children spent him bore no resemblance to the Monday-to-Monday week about, as provided for in the final consent order, should he fulfil the conditions therein.
Notwithstanding the reality of the parenting situation, the husband again challenged the quality of the mother’s home making contribution, that is her parenting, saying she fed the children rice and salt, and, beat them.
Obviously then, in the post separation period from January 2019 to trial, it is the wife who made the lion’s share of financial contributions to the mortgage relevant to the property in which she and the children resided, but also the Suburb C property in which the husband lived, essentially, rent free. The wife has also had the lion’s share of the homemaker contributions through her parenting of the children.
I turn then to the issues framed by the parties:
The significance as to contributions of the husband not paying child support for the 2 children to the wife since August, 2016.
The significance as to contributions of the children spending minimal time with the children from 15 January, 2019 to date.
The significance of the wife and children having sole use and occupation of the former matrimonial home since physical separation in January, 2019.
I have considered the first two already. As for the third, if it is not clear from what I have said, then the significance of this is that whilst the wife had sole use of the home since January 2019, she was also solely paying the mortgage relevant to that property and also the property in which the husband resided.
Assessment of contributions
As said, the husband pressed for a five to ten percent adjustment in his favour on account of his introduction of the Suburb C property. No concession was made for the contributions made by the wife both of her $10,000 at the start of the relationship or what has occurred when she has been solely contributed since January 2019, or almost solely contributing when it comes to the children.
It was the wife’s written submissions that “her contribution based entitlement therefore ought to be found to be 58% if her interest in [City H] is excluded from the pool of matrimonial assets and placed in a second pool." As I referred to earlier in these reasons, those submissions were ultimately overtaken by the agreement that the City H property be considered as a financial resource.
Looking at contributions holistically, and taking account all I have said above, two factors stand out in amongst all of the contributions. First, the initial contribution made by the husband of the Suburb C property of which I have already spoken. But, whilst the husband did not favour me with evidence to understand a value or worth of that when re-financing it is nevertheless a contribution by him[too].
Next, the wife’s “lion’s share” post separation contributions, especially since January 2019, being both financial and homemaker. I also take into account everything the parties did when together, working as the best each of them could in the various spheres over which contributions are assessed.
Standing back and looking at the totality of the contributions made by each of the parties over the entirety of the relationship and post separation period I find that an adjustment ought be made in the wife’s favour of 2.5 percent.
Two and half percent on a pool of $641,726 equals $16,043, but the final pool will depend on the sale of the Suburb C property. I am also alert to the fact that a 2.5 percent adjustment is a five percent differential which itself is worth $32,086 (subject to the net sale proceeds of Suburb C property). I find that appropriate in the circumstances of this case.
Section 79(4)(d).
The property order I will make will not affect the earning capacity of either of the parties under s 79(4)(d) of the Act. Neither party suggested otherwise.
Relevant s 75(2) factors pursuant to s 79(4)(e)
It was the husband's position in his outline that any relevant s 75(2) balanced each other out. He sought no adjustment in favour of either party for these factors.
In her written submissions at paragraph [46(g)], the wife contended for a 10 percent adjustment in her favour “if the $101,600 taken by the husband is not added back.” I have not added back this sum (nor that contended for against the wife).
In the premises, the parties framed this issue:
Whether there should be an adjustment under sec 75(2) in favour of either party
Subsection (2)(a) – the age and state of health of each of the parties
The wife is currently 45 years of age and the husband 62. Obviously save for any unforeseen circumstances, the wife has a longer period of time in which to earn income and acquire, for example superannuation. The husband however is likely to have a shorter lifespan.
The husband says he has some health difficulties but there is no independent evidence before me to make any assessment of that.
I find that the ages of the parties, but what that means for their respective futures balance each other out.
Subsection (2)(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
The husband has limited earning capacity due to his age, but have already referred to this and will not double count the factor of age.
Of his earning capacity, that husband’s evidence was unsatisfactory - he spoke of being in retirement, but also having a business working 5 to 10 hours a week. He then said if he had a higher income in the future he would then consider making child support payments. It seems to me then that he is contemplating working into the future, and, contemplating a capacity to generate a greater income if he chose. He is self-employed.
I accept the wife’s submissions that the husband has a greater earning capacity than he is “currently using” and that the has given inconsistent evidence about how much he is working,
I have no evidence, nor was it suggested, that the wife is underemployed. She works five days a week.
The City H property in which the wife has some kind of interest may well be a financial resource of value to her in the future. However, the wife’s mother gave evidence and was steadfast in doing so, that:
(a)the will annexed to the husband's affidavit was not one signed by her; and
(b)more so that she had given no particular contemplation to what she might do with the City H property in contemplation of her demise.
I do not need to find whether the will was the wife’s mother’s or not. I do not need to do so because I have no evidence before me to understand what Country G estate law might make of that document or not. The wife however is the only child of her parents’ union. There is therefore the prospect of the wife inheriting the property in City H but I cannot advance that proposition beyond a possibility because I have absolutely no evidence to help me understand how Country G estate law works, nor what it means for the wife currently being on some kind of title, with her mother, with respect to that real estate. I also have no evidence that the wife would be able to deal with or receive income or capital from the City H property for the foreseeable future.
As the husband submitted, the wife is in a better position with respect to superannuation whilst the husband reduced his superannuation to live on as was permitted to do so during the Covid pandemic.
For these reasons, I find this consideration favours the husband in a very modest way.
Subsection (2)(c) – whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
If the best predictor of the future is the past, then the children will continue to have daytime time with the husband, and the mother will continue with the primary care or control of the children. Despite his protestations that this somehow the children were spending equal time with the father, it is plain that the care or control of the children has fallen to the mother, and in all likelihood and on the balance of probabilities, will continue to do so.
Indeed, I find it incredulous that the husband said he had fulfilled all of the conditions in the final consent order when being cross-examined yet had not provided the reports he claimed to have obtained but not sent to the wife’s legal representatives. If he has, in fact, obtained the necessary referrals and reports, but not provided them to the wife’s legal representatives, then it does not speak well to his desire to actually spend more time with the children. He also has “not yet” moved within the 10 kilometre radius of the children’s school; another precondition to equal time. Given he sought orders to keep the Suburb C property, it would seem he had no plans to do so either.
On the balance of probabilities, I conclude that he has not secured such reports because if he had, I have no doubt they would have been sent to the wife’s legal representatives – fulfilment of those conditions (but also the 10 kilometre radius move) are the only things standing in his way between actual shared care and the daytime he currently has. In any event, even if I am wrong on that and he has the reports, he has not provided them to the wife’s representatives, nor has he moved.
Accordingly, I have no hesitation in finding that the care or control of the children going forward will primarily, fall to the wife. I have already referred to the husband’s attitude of “paying enough” for the children since January 2019, so in those premises, the financial aspects of care or control will also fall, in all likelihood, to her.
This consideration favours the wife, and in a significant way.
Subsections (2)(d) and (e) – commitments of each of the parties that are necessary to enable the party to support himself or herself, and a child or another person that the party has a duty to maintain; and the responsibilities of either party to support any other person
No submissions were made. I will not consider it.
Subsection (2)(f) – the eligibility of either party for a pension, allowance or benefit under any law of the Commonwealth, of a State or Territory or of another country; or 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
No submissions were made. I will not consider it.
Subsection (2)(g) – where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable
No submissions were made. I will not consider it.
Subsection (2)(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
Not relevant and even if it were, no submissions were made.
Subsection (2)(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
Not relevant.
Subsection (2)(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
Not relevant and even if it were, no submissions were made Subsection (2)(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
No submissions were made.
Subsection (2)(l) – the need to protect a party who wishes to continue that party’s role as a parent
No submissions were made.
Subsection (2)(m) – if either party is cohabiting with another person—the financial circumstances relating to the cohabitation
Not on the evidence before me, applicable.
Subsection (2)(n) – the terms of any order made or proposed to be made under section 79 in relation to the property of the parties; or vested bankruptcy property in relation to a bankrupt party
Not applicable.
Subsection (2)(naa) – the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to a party to the marriage; or a person who is a party to a de facto relationship with a party to the marriage; or the property of or vested bankruptcy property in relation to a person covered by the categories aforementioned
Not applicable.
Subsection (2)(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 husband has not paid assessed, periodic children support. Yet, it also must be that the wife has made no application for it. However, I accept the submissions of the husband that even if an application had been made, the level of assessment given the husband’s meagre income would be minimal.
In any event, I have already referred to the financial aspects of care or control above, and will not double count that here.
Subsection (2)(o) – any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
I have already referred to the City H property under financial resources in s 75(2)(b) and will not double count that here.
The wife submitted that if I did not add back to the $101,600 withdrawn by the husband in and around separation, then I ought consider it under s 75(2)(o). I will not do so, because as the wife highlighted, he used a considerable portion of those matrimonial funds, on matrimonial debt. I have already accepted that balance of the sums were expended on household bills and living expenses. In other words, there is no affront to justice to be considered here.
Subsections (2)(p) and (q) – the terms of any financial agreement and any Part VIIIAB financial agreement that is binding on the parties to the marriage
Not relevant.
Evaluation of s 75(2) factors
Having taken all the above, relevant s 75(2) factors in account, I find that a 7.5 percent adjust in the wife’s favour is appropriate. That strikes the appropriate balance between the various considerations I have just identified.
On a pool of $641,726, 7.5 percent equates to $48,129 and a differential of 15 percent equates to $96,259. But the final figures will depend upon the sale of the Suburb C property. I consider that is just and [also] appropriate.
WHAT PROPERTY ORDER IS APPROPRIATE TO ACHIEVE A JUST AND EQUITABLE OUTCOME?
Overall, the last page of the applicant wife’s written submissions contended for a 63.58 percent adjustment to the wife and a 36.42 percent adjustment for the husband. But that pool included adding back the $101,600 drawn by the husband, and adding the wife legal fees of $35,000. I have already rejected both sums as items to be visited upon the pool.
The respondent husband’s case saw he ought have the benefit of a 30-70 percent adjustment in his favour for contributions; that “future needs” are 50-50, but then the overall division ought be 50-50. That makes no sense to me at all.
Nevertheless, in submissions, the husband contended for an overall 5-10 percent adjustment in his favour due to his initial contributions, and I assume, its use to facilitate, in some unquantified way, the purchase of the Suburb E property.
However, as counsel for the husband frankly and appropriately submitted, he was bound by his instructions and the evidence that fell from the husband, very clearly, in cross-examination. Putting aside the City H property which he agreed to be a financial resource, and the other smaller chattels, the husband’s position as to what was just and equitable in cross-examination was this:
(a)he ought receive Suburb C [property] unencumbered $365,000
(b)he ought have 50% of the nett proceeds of Suburb E [property]
$420,000 - $243, 378 = $176,622
(c)Divide by 2 = = $88,311
(d)thus to the husband on his XXN = $453,311
(e)the wife ought have the other half = $88,311
(f)and from this she should pay her legal fees of $35,000 = $53,311
Such an outcome would plainly not be just and equitable.
By combination of my findings and reasons, I have determined that thepropertyof the parties or either of them will be divided to reflect the wife receiving 60 percent and the husband 40 percent of the net overall asset pool, being $641,726 (but that sum will change upon sale of Suburb C). I am aware that is a 20 percent differential worth $128,345.
Sixty percent of $641,726 is $385,036 (I have rounded that slightly), but the final figure will depend upon the net proceeds received upon the sale of the Suburb C property.
Forty percent is $256,690 (rounded), and again has the same caveat that the actual result will depend on the net proceeds for the sale of that property.
Helpfully the parties set out very similar orders as to what is to occur and as I said at the start of these reasons effectively mirror each other; one party wanting to keep one property and sell the other and vice versa for the other party. I have thus modified the orders proposed by each party to provide a formula to achieve the outcome. I consider this a mechanical provision to put into effect the orders I will make.
Neither party asked me to make an order in the event there is a shortfall in net proceeds to effect the overall division. I shall not therefore divine one, but will give the parties liberty to apply on matters of interpretation and implementation.
Similarly, the wife did not provide a timeframe for the Suburb E property to be signed over to her. I do get some assistance from the husband’s proposed orders, which were largely a mirror of the wife’s, albeit opposite properties being sought. He proposed that he be solely entitled to the Suburb C property on the settlement of the sale of the Suburb E property. I will apply what the husband proposed, albeit in reverse – the transfer of the Suburb E property from the husband to the wife will occur upon the settlement of the Suburb C property sale.
I also make orders pursuant to s 121 of the Family Law Act that each of the parties are at liberty to provide a copy of my orders to the person who is appointed as agent and the person who is appointed legal practitioner as defined in my orders.
I make orders in accordance with the minute proposed by the wife. The wife will retain the former matrimonial home in which she and the children reside. I do so because her entitlement is the larger in this modest pool and more importantly because the children have lived in that house for all, if not, most of their lives. The Suburb C property will be sold. It was common ground that the parties had little, if any, borrowing capacity.
The respective positions of the parties are reflected in the table below.
Item To wife To husband D Street, Suburb E $420,000 0 Funds at Westpac A/C …72 0 $135 Funds at G Bank A/C …09 0 $ 8,973 Funds at CBA A/C …60 0 $ 310 Funds at CBA A/C …52 0 $7,031 Motor Vehicle 1 0 $ 8,500 Motor Vehicle 2 0 $ 1,450 Household Contents & Personal Property 0 $927 Funds at Westpac A/C …00 $19,435 0 Motor Vehicle 3 $10,000 0 Household Contents $1,500 0 Superannuation Fund 1 0 $7,779 Superannuation Fund 2 (rounding up the 88 cents) $34,064 0 Sub-total $484,999.00 $35,105.00 = $520,104 (A) (A) is then added to the net proceeds of the sale of Suburb C (as defined in the order) to calculate the pool available for division.
That pool available for division is then adjusted 60% to the wife and 40% to the husbandTaking account of what each party will retain and at what value as set out in these Reasons and my Order, the nett proceeds will be distributed: So as for the wife to receive 60% of the pool available for division So as for the husband to receive 40% of the pool available for division
I am satisfied that the proposed propertysettlement achieves a just and equitable outcome.
I certify that the preceding one hundred and sixty-seven (167) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 30 June 2022
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