Bowers & Bowers
[2023] FedCFamC2F 1546
•4 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bowers & Bowers [2023] FedCFamC2F 1546
File number(s): MLC 6143 of 2022 Judgment of: JUDGE J YOUNG Date of judgment: 4 December 2023 Catchwords: FAMILY LAW – PROPERTY – long marriage – modest asset pool consisting of the former matrimonial home and proceeds of sale of investment property held in trust – consideration of husband’s contributions throughout relationship – consideration of add backs sought by wife and s 75(2)(o) factors. Legislation: Evidence Act 1995 s 140
Family Law Act 1975 (Cth) ss 4AB(1), 75(2), 79, Part VII
Cases cited: Aleksovski & Aleksovski (1996) FLC 92-705
Babette & Falconer (2015) FamCAFC 124
Benson & Drury [2020] FamCAFC 303
Bevan & Bevan [2013] FamCAFC 116
Browne v Green (1999) FLC 92-873
C & C [1998] FamCA 143
Chang & Su [2002] FamCA 156
Dickons & Dickons [2012] FamCAFC 154
In the Marriage of Hickey [2003] FamCA 395
In the marriage of Mehmet (1986) 11 Fam LR 322
Jabour & Jabour [2019] FamCAFC 78
Kennon & Kennon (1997) FLC 92-757
Kowaliw & Kowaliw (1981) FLC ¶91-092
Norbis & Norbis [1986] HCA 17
AJO and GRO [2005] FamCA 195
Perrin & Perrin (No 2) [2018] FAMCAFC 122
Toft & Royce [2013] FamCA 372
Trevi & Trevi [2018] FamCAFC 173
Wallis & Manning (2017) FLC 93-759
Weir & Weir (1993) FLC 92-338
Division: Division 2 Family Law Number of paragraphs: 118 Date of last submission/s: 4 September 2023 Date of hearing: 21, 22 and 25 August 2023 Place: Melbourne (via Videoconference) Counsel for the Applicant: Ms Skinner Solicitor for the Applicant: LN Christie & Co Counsel for the Respondent: Ms Fraser Solicitor for the Respondent: Maxwell Berghouse & Ives ORDERS
MLC 6143 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BOWERS
Applicant
AND: MS BOWERS
Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
4 DECEMBER 2023
THE COURT ORDERS THAT:
1.Within 30 days of the date of these Orders, the net proceeds of sale of the Suburb C property in the sum of $462,338 currently held in a Commonwealth Bank of Australia Term Deposit account (Term Deposit number #...55) controlled by the Respondent’s solicitor Maxwell Berghouse & Ives Lawyers be distributed as follows:
(a)$300,103 to the nominated trust account for the applicant husband’s solicitors; and
(b)$162,235 to the nominated trust account for the respondent wife’s solicitors.
2.The applicant and respondent do all such acts and things and sign all documents necessary to transfer the D Company shares from the joint names of the parties to the sole name of the applicant as to 50% of the shares and to the sole name of the respondent as to 50% of the shares.
3.The applicant otherwise retain for his own benefit, to the exclusion of the respondent, all other assets in his sole name or possession and forever indemnify the respondent in relation to any liability arising from or associated with the following:
(a)His Motor Vehicle 1;
(b)Bank funds held in accounts in his individual name;
(c)Furniture currently in his possession;
(d)His superannuation benefits;
(e)Other money and assets in his possession.
4.The respondent otherwise retain for her own use and benefit, to the exclusion of the applicant, all other assets in her sole name or possession and forever indemnify the applicant in relation to any liability arising from or associate with the following:
(a)The real property situate and known as E Street, Suburb F, in the state of New South Wales, being the whole of the land comprised in certificate of title Lot … in deposited plan …;
(b)Her Motor Vehicle 2;
(c)Furniture currently in her possession;
(d)Her superannuation benefits;
(e)Other money and assets in her possession.
5.Unless otherwise specified in these Orders, and save for the purpose of enforcing monies due under these or any subsequent Orders:
(a)Each party be solely entitled to the exclusion of the other to all property (including choses in action) in the possession of such party as at the date of these Orders;
(b)Each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other;
(c)Insurance policies are to remain the sole property of the owner names thereon;
(d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled to pursuant to these Orders; and
(e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE J YOUNG
INTRODUCTION
The applicant husband seeks final orders adjusting the property interests of the parties under s 79 of the Family Law Act 1975 (Cth) (Act).
The husband was born in 1971 and is 52 years of age. He worked as a factory worker but claims he terminated his employment recently as his employer would not allow him time off for the final hearing. The husband lives in Suburb G, Victoria with his de facto partner. The husband deposed to earning $1399 gross per week prior to ceasing employment. However, it was conceded at the commencement of the trial that in the period 1 September 2022 to 9 August 2023 the husband’s income was $2400 net per week.
The respondent wife was born in 1978 and is 44 years of age. She works as a professional. The wife has continued to live in the matrimonial home post-separation. The wife last provided a financial statement in September 2022. In her affidavit of 1 August 2023 she deposed to earning an annual salary of $100,000, earning approximately $1560 net per week. Under cross examination however she conceded that for at least the six months prior to trial with overtime she had earnt in excess of this figure by approximately $300 per week.
BACKGROUND
The parties commenced a relationship in or around early 1993 in Town H, NSW.
The parties separated in or around early 1995. In mid-1995 the wife moved into her grandmother’s house at E Street, Suburb F, NSW (Suburb F Property).
The parties recommenced their relationship in 1997. The husband moved into the Suburb F Property with the wife and her grandmother. The parties lived at the Suburb F Property for a period of around three months before obtaining their own accommodation, separate from the wife’s grandmother.
In 1997 the wife received an award of $45,000 from the J Authority.
The parties’ daughter, Ms K, was born in 1998.
In 2000, the parties jointly purchased B Street, Suburb C for $237,000 (Suburb C Property). A 10% deposit was paid and the balance was borrowed and secured by way of mortgage. The mortgage was jointly obtained in the parties’ names.
Until 2016 the parties had a joint bank account into which both parties’ wages were deposited. The mortgage for the Suburb C Property was paid from the joint bank account.
The parties’ son, Mr L, was born in 2003.
The parties’ married in 2005.
In 2007, the husband suffered an injury. The husband was unable to work for a period of time following his injury.
In 2007, the husband’s employment with M Company was terminated.
Following this, and until the end of the relationship, the husband had numerous different jobs for various periods of time. The husband’s employment will be addressed further below.
In 2012, the wife’s grandmother was taken to hospital. The parties’ moved into the Suburb F Property to take care of the wife’s grandmother once she was discharged from hospital. The wife’s grandmother died in hospital in 2012.
The wife inherited the Suburb F Property from her grandmother, together with an “old car” and approximately $33,000. The Suburb C Property was tenanted following the parties moving into the Suburb F Property.
In mid-2016 the husband relocated to Melbourne to commence work for N Company. The husband’s work was then relocated to Sydney in 2016.
The parties separated in November 2019. They are not yet divorced.
The Suburb C Property was sold in late 2022 and the net proceeds of the sale of $462,338 (rounded) are held in trust by the wife’s solicitors.
During the relationship both parties were users of illicit substances. This matter will also be addressed further below.
ISSUES IN DISPUTE
The keys issues in these proceedings are as follows:
(1)categorisation of items in the property pool:
(a)whether the wife’s debt of $14,000, incurred post-separation, for the installation of fixtures on the Suburb F Property should be included in the property pool;
(b)whether the husband’s withdrawal of $20,000 from his superannuation fund post-separation should be added-back to the property pool;
(c)whether the following other expenses of the wife post-separation should be included in the asset pool:
(i)roof repairs to the Suburb F Property;
(ii)a shortfall in rental income of the Suburb C Property and outgoings;
(iii)loan repayments of the wife of a loan taken out in 2016 in the wife’s name on the husband’s behalf; and
(iv)repayments of professional photos taken in 2019 prior to the parties’ separation.
(2)what the husband’s financial contributions were during the relationship;
(3)whether there was any wastage by the husband purchasing illicit substances during the relationship;
(4)what non-financial contributions the husband made during the relationship; and
(5)whether family violence affected the wife’s capacity to make contributions.
DOCUMENTS RELIED ON BY THE PARTIES
The husband relied on the following:
·Financial Statement filed 20 July 2023;
·affidavit of the husband filed 31 July 2023; and
·expert valuation of the Suburb F Property filed 17 August 2023.
The wife relied on the following:
·Response filed 9 September 2022;
·Financial Statement filed 23 September 2022;
·affidavit of the wife filed 2 August 2023.
The wife was granted leave to rely on the following further documents:
·affidavit of the wife filed 9 September 2022 (wife’s 9 September 2022 affidavit);
·affidavit of the wife filed 14 August 2023; and
·affidavit of the wife’s legal representative filed 11 August 2023.
On the final day of hearing, Orders were made for the following material to be filed and relied on:
·a Further Amended Application filed 25 August 2023;
·a joint balance sheet provided 29 August 2023; and
·closing written submissions from both parties provided 4 September 2023.
ORDERS SOUGHT
The husband seeks orders for a cash payment of $437,751.58 from the net proceeds of sale of the Suburb C Property. He also seeks Orders for both parties to otherwise retain their superannuation and other assets, with the wife to keep the Suburb F Property. These Orders would result in an overall split of 38.6-61.4% of the total asset pool as asserted by the husband, in the wife’s favour.
The wife does not seek orders altering the parties’ respective legal interests. However, she does seek Orders for the net proceeds of sale of the Suburb C Property to be split 50-50% between the parties, so as to finalise the dispute. She otherwise seeks that the parties’ keep their respective assets and superannuation. These Orders would result in a 27-73% split of the total asset pool as asserted by the wife, in the wife’s favour.
Both parties’ made submissions with respect to their individual future needs pursuant to s 75(2) of the Act. However, neither party sought any adjustment of the property pool pursuant to s 75(2).
THE HEARING
The final hearing was originally listed for two days, however it became apparent towards the end of the second day that a third day of hearing would be required.
The hearing subsequently took place on 21, 22 and 25 August 2023.
The hearing took place entirely via Microsoft Teams in circumstances where the wife and her legal representatives are located in New South Wales.
I have carefully considered the evidence over the course of the trial, together with the submissions made. I do not propose to respond to each submission made, nor refer to every piece of evidence. However, I have carefully considered all of the evidence before the Court and all of the submissions in determining what Orders are just and equitable.
LEGAL PRINCIPLES
The Application is to be determined by reference to the relevant provisions of Part VII of the Act.
Section 79 of the Act gives the Court the power to alter the interests of the parties to the marriage in the property. Subsection 79(2) provides that the Court shall not make an Order altering the property interests of the party “unless it is satisfied that, in all the circumstances, it is just and equitable” to do so.
Subsection 79(4) of the Act further provides the matters the Court must take into account when considering what Orders, if any, should be made to alter the parties’ property interests. This includes the financial, non-financial, direct and indirect contributions of the parties.
In the current matter before the Court, the parties were married for approximately 14 years, with their relationship being considerably longer, for a period of some 22 years. Although the parties are not divorced, they have separated on a final basis and in the Court’s view, it is just and equitable for the parties’ financial relationship to also be finalised, with Orders to be made adjusting the property interests of the parties.
Having determined is it just and equitable for there to be an adjustment of the parties’ property interests, the Court must now turn to what Orders are appropriate to be made. The Full Court in In the Marriage of Hickey [2003] FamCA 395 identified a four-step process the Court generally takes in considering property matters. This approach was approved in Bevan & Bevan [2013] FamCAFC 116. In essence, it is as follows:
(1)to identify the pool of assets and liabilities generally, and usually at the time of hearing;
(2)to assess the relative contributions of both the financial, non-financial, direct and indirect nature as specified by s 79(4) of the Act;
(3)to determine whether any adjustment is required for the s 75(2) factors; and
(4)bearing in mind all of the foregoing matters, to determine whether the Order the Court proposes to make is just and equitable to both parties.
The Court has emphasised the nature of the task required by s 79 is “in essence, a broad discretionary assessment, which is neither an accounting nor mathematical exercise and effectively requires a broad-brush approach”: Babette & Falconer (2015) FLC 98-067 at [44]; Perrin & Perrin (No 2) [2018] FAMCAFC 122 at [57]-[58].
PROPERTY POOL
As noted above, the parties submitted a joint balance sheet following the end of trial. The balance sheet is as follows:
Description Ownership Applicant’s value Respondent’s value Assets 1 Net proceeds of sale of Suburb C Property Joint $462,338.81 $462,338.81 2 Suburb F Property Wife $775,000 $775,000 3 Motor Vehicle 2 Wife $2,000 $2,000 4 Motor Vehicle 1 Husband $2,500 $2,500 5 Furniture Husband $500 $500 6 Furniture Wife $1,000 $1,000 7 Bank accounts (x3) Wife $19,000 $19,000 8 Bank accounts Husband $nominal $nominal 9 O Company shares Husband $704 $704 10 O Company shares Wife $704 $704 Assets subtotal $1,263,746.81 $1,263,746.81 Liabilities 11 Cost of house fixtures Wife $0 $14,000 Liabilities subtotal $0 $14,000 TOTAL (assets less liabilities) $1,263,746.81 $1,249,761.81 Superannuation Name of fund Type Member Applicant’s value Respondent’s value 12 Super Fund 1 Accumulation Husband $174,782 $194,782 13 Super Fund 2 Accumulation Wife $156,769 $156,769 Superannuation subtotal $331,551 $351,551 TOTAL (assets less liabilities plus superannuation) $1,595,297.81 $1,601,297.81 Other Description Ownership Applicant’s value Respondent’s value 16 Funds withdrawn by husband after separation $0 $0 17 Roof repairs on Suburb F Property $0 -$4,900 18 Shortfall in rent over expenses on Suburb C property $0 -$966 19 Loan debt repaid by wife post-separation $0 $2,500 20 Photo debt taken over by wife post-separation $0 $1,650 Other subtotal $0 -$10,016 TOTAL (assets less liabilities plus superannuation plus other) $1,595,297.81 $1,591,281.81
Items number 11-12 and 17-20 are in dispute between the parties. The wife seeks these sums be added back into the property pool.
Add backs
In Trevi & Trevi [2018] FamCAFC 173 (Trevi) at [27] the Full Court, relying on the decision in AJO & GRO [2005] FamCA 195 (AJO & GRO), said that add backs fall into “three clear categories”, being:
(a)where the parties have expended money on legal fees;
(b)where there has been a premature distribution of matrimonial assets; and
(c)“waste” or wanton, negligent, or reckless dissipation of assets.
Adding back is “the exception rather than the rule”. C & C [1998] FamCA 143 at [46].
In Trevi at [29] –[30] the Full Court said:
The fundamental precept that addbacks are exceptional, reflected in the decisions just referred to, also mirrors what has been said in earlier decisions of the Full Court that, for example, “the Family Court must take the property of a party to the marriage as it finds it” at trial. An important parallel proposition is that the parties do not “go into a state of suspended economic animation” after separation. Thus, reasonably incurred expenditure does not usually come within accepted categories of addback.
Two fundamental premises emerge from AJO & GRO 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 by taking up the same 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 interests in property. (footnotes omitted).
I do not consider Items 17-20 or Item 11 fall within the categories set out in Trevi or AJO & GRO. Further, the wife made no submissions as to these matters other than seeking they be added back. Items 11 and 17-20 are sums paid by the wife towards the maintenance and improvement of the Suburb F Property, the Suburb C Property and paying down existing debt. In keeping with the above authorities, those matters are most properly considered under s 79(4).
As to the withdrawal by the husband of his superannuation (Item 12), the husband’s evidence is that in 2020 he withdrew $20,000 (in two tranches of $10,000) from his superannuation post separation, on the ground of financial hardship during the COVID-19 pandemic. At trial, the applicant conceded that this $20,000 should be treated as an add back. However, in closing submissions, whilst conceding that the withdrawal may constitute a premature distribution of matrimonial assets as contemplated in Trevi and AJO & GRO, the applicant submitted that in all the circumstances these funds ought not be added back.
I do not consider it appropriate to add back the $20,000 that the husband withdrew from his superannuation into the property pool. That the funds were withdrawn on the grounds of financial hardship was not contested. As such, I consider that the funds were reasonably incurred expenditure.
Accordingly, the total asset pool including superannuation is $1,595,297.81.
CONTRIBUTIONS
It is convenient to address the parties contributions by reference to initial contributions, contributions during the relationship in the periods 1997-2007, 2007-2016 and 2016-2019, and contributions post separation. However, in determining what orders are to be made, I am required to approach the assessment of contributions holistically, by analysing the nature, form and characteristics with reference to the particular circumstances of the particular relationship: Dickons & Dickons [2012] FamCAFC 154 at [21] (Dickons). This should be done without “over-zealous attention to the ascertainment of contributions”: Norbis & Norbis [1986] HCA 17 at [17]. The process the Court is required to undertake by s 79 of the Act “…is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.”: Dickons at [25]. All contributions are to be weighed collectively, not compartmentalised with some contributions weighed against others: Jabour & Jabour [2019] FamCAFC 78 at [73]-[87]; Benson & Drury [2020] FamCAFC 303 at [35].
Initial contributions
The parties commenced a relationship in early 1993, subsequently separated for approximately one year in 1995 and recommenced their relationship in 1997.
At the commencement of the relationship the wife was 14 years old and the husband 22 years old. Neither party had any assets of any note at that time.
When the parties recommenced their relationship in 1997, the husband’s evidence under cross examination was that he had a fine of $300 and $1400. In 1997 the wife received a compensation payment of $45,000 (Compensation Payment) and had no debts.
The parties initially lived with the wife’s grandmother for a period of 2-3 months, before moving into a rental property together. At that time the husband was working as a factory worker for M Company and the wife was working in an admin role.
In about early 2000 the parties jointly purchased the Suburb C Property for $237,000. It is uncontested that the deposit for the Suburb C Property and associated purchase costs were paid by the wife from the Compensation Payment. The wife therefore made the greater initial contribution. Further, consistent with the decision of as Aleksovski & Aleksovski (1996) FLC 92-705 this should be assessed as a contribution by the wife. The remainder of the purchased price for the Suburb C Property was funded by a joint mortgage, which was paid from a joint account into which the parties’ wages were paid. Joint living expenses were also paid from this joint account.
Uncontested financial contributions during the relationship
The husband concedes that the wife contributed her income towards the joint expenses of the family.
It is also uncontested that during the relationship the wife received a number of payments and inheritances and that these were applied to the support of the family. The husband’s evidence was that he was aware of the receipt of these payments and inheritances but not the quantum. I accept the wife’s evidence as to the quantum of these contributions.
Accordingly, I find that the wife contributed the following in inheritances:
·an inheritance from her father in the sum of $6,500; and
·a further sum from her father’s estate of $6,000.
I also find that the wife made the following financial contributions during the relationship:
·a $6,000 redundancy payment;
·$15,000 upon the termination of her employment in 2011, together with a settlement sum of $6,500 following the commencement of unfair dismissal proceedings; and
·payment for the cashing out of 5 weeks’ annual leave in 2016.
It is also uncontested that the wife contributed the Suburb F Property which she inherited from her grandmother in 2013, together with a car and approximately $33,000. It is also uncontested that the value of the Suburb F Property at the time of transfer was $400,000. That property is now valued at $775,000 and comprises approximately half of the total asset pool. These uncontested contributions by the wife are significant, most particularly the Suburb F Property, and must be given weight. The wife submits that the Suburb F Property is in poor condition and it should be recognised that the valuation of the property does not take into account defects that would not have been apparent to the valuer, such as the asserted defective waterproofing in the bathroom. I reject that submission. Firstly, there is no independent probative evidence before the court as to the asserted defects in the Suburb F Property or their extent. Secondly, there is also no independent probative evidence before the Court as to the costs associated with rectification of the defects or how they affect or detract from the value of the Suburb F Property. Thirdly, the wife does not say how these defects “should be recognised”. Fourthly, the Suburb F Property was valued “as is” and if repaired may be more valuable.
The husband’s unchallenged evidence was that during the relationship he inherited $10,000 from his grandfather. I have taken this into account.
Contributions 2000 - 2007
It appears uncontested that between 2000 and 2007 the parties each contributed regularly to the mortgage repayments on the Suburb C Property and living expenses. The parties were joint mortgagors. Both parties were working full –time and their wages were paid into a joint account from which expenses were paid. The wife concedes that in this period the husband was a hard worker and does not dispute that the husband made financial contributions to the acquisition and conservation of the Suburb C Property.
Contributions 2007 - 2016
The wife submits that after 2007 the husband was a drain on the parties’ joint financial resources because of poor financial management, intermittent employment and wasted expenditure on illicit substances.
As set out above, the parties operated a joint account from which the mortgage and joint expenses were paid.
In 2007 the husband suffered an injury and did not work for a period of 6 months.
In 2007 the husband’s employment with M Company was terminated due to his inability to perform his role. The wife’s evidence is that after this time the husband was “in and out of work” and she paid most of the mortgage and the family’s living expenses. It appears uncontested that the wife maintained full employment throughout the relationship, other than for two periods of maternity leave, following the birth of the parties’ children. The husband’s evidence is that he supported the family during the wife’s periods of maternity leave. The wife’s evidence is that she utilised sick leave and annual leave during these periods. The husband conceded under cross examination that he did not know if the wife accessed annual leave and sick leave during these periods.
The husband deposes that between 2007 and late 2018 he maintained employment throughout the relationship, other than for a brief period over late/early 2018. In his trial affidavit the husband deposes to the dates and periods he says he was employed from 2007 until early 2019. It is clear from the husband’s own evidence that his employment history, relative to that of the wife, is unstable and he has held a not insignificant number of different roles with a variety of employers in that period. His evidence under cross examination was that he would obtain new employment within a week of ceasing employment with a prior employer. He agreed under cross examination that most of his employment was casual employment. His evidence was that other than for the 2008/2009, 2009/2010 and 2015/2016 financial years, he earnt more than the wife.
The wife’s evidence is that during the relationship the husband had significant periods of unemployment and that when the husband was not working he did not contribute to the family’s expenses. The wife deposes to the husband being unemployed in the following periods:
·2007 – (1 month);
·2008 (3 months);
·2008 –2009 (6 weeks);
·2009 (10 days);
·2009 (3 months);
·early 2014 – late 2014 (4 months); and
·late 2018 – early 2019 (2 month).
The wife also deposes to the husband working limited days and hours, and consequently earning a reduced income, in the following periods:
·2007, whilst employed by Q Company;
·mid-2015 – late 2015 , whilst employed by P Company;
·mid-2015 – mid-2015, whilst employed by R Company;
·late 2015 – early 2016, whilst employed by S Company; and
·early 2016 – mid-2016, whilst employed by R Company.
The wife deposed to having been “aided” in compiling the husband’s work history from tax returns, bank statements and other records. Other than the husband’s tax returns, which are annexed to the wife’s 9 September 2022 affidavit, these documents are not in evidence before the Court.
The husband’s tax returns for the period 2007 – 2018 disclose that he was paid an income each year throughout this period. That income however fluctuates from year to year. Under cross examination, the husband’s evidence was that he compiled his employment history “off the top of [my] head” and had not had regard to the documents attached to the wife’s affidavit or any other documents provided to him by the wife. The wife conceded under cross examination that she had no independent recollection of the husband’s work history and had compiled it from documents. The husband submits that based on the husband’s tax returns and the wife’s lack of independent recollection, the Court must accept the husband’s evidence that he maintained employment throughout the relationship. For the following reasons I reject that submission. Firstly, the tax returns say nothing about the periods of employment held by the husband in the relevant financial year. They simply confirm that during that financial year the husband earnt some income. Secondly, the income which is disclosed fluctuates, at times doubling that of earlier years, consistent with the wife’s evidence that the husband had periods of unemployment and under employment. Thirdly, having observed the husband giving evidence, I consider it implausible that he could recollect “off the top of [his] head” his employment history as he contends. That history spans a period in excess of 22 years and covers 21 changes of employment, involving at least 13 employers, some of whom the husband was employed with on more than one occasion. Fourthly, under cross examination the husband’s evidence regarding his employment history between early 2013 and late 2014 was inconsistent with the evidence contained in his affidavit for this period. Additionally, on his own affidavit evidence he was unemployed from early 2014 until late 2014. Fifthly, under cross examination the husband conceded that his evidence as to his employment history was “an educated guess” and that he did have a period of six weeks unemployment in 2008 as contended by the wife. Sixthly, under cross examination the husband conceded that while working for P Company in 2015 he only worked a few days, while working for R Company in 2015 he was only working between one and three days per week and said working for S Company was “a lost cause” and he needed to find other employment. This is consistent with the wife’s evidence. Finally, the evidence before the Court supports a conclusion that within the relationship the wife was the record keeper and the person responsible for managing and administering the parties’ finances and affairs and that she maintained extensive and comprehensive records of these matters. Accordingly, for the above reasons, I accept the wife’s evidence and find that the husband was unemployed for the periods contended by the wife and also worked limited days and hours as contended by the wife.
As set out above, the wife inherited the Suburb F Property in 2013. The inheritance of the Suburb F Property allowed the Suburb C Property to be tenanted. The wife’s unchallenged evidence is that the rent from the Suburb C Property covered most, but not all, of the mortgage repayments and outgoings. Her evidence, which I accept, was that until 2016 any shortfall was paid from the joint account.
I also accept the wife’s evidence that most of the bills were paid from the joint account and that during periods when the husband was unemployed he did not earn income and therefore did not contribute to the joint account. However, the husband’s evidence is that other than for the 2008/2009, 2009/2010 and 2015/2016 financial years, he earnt more than the wife. This evidence was not seriously challenged and there is no evidence before the Court as to the wife’s income during these periods. The wife also concedes that the husband earnt more than her when he was working. Accordingly, I do not find that between 2007 and 2016 the wife paid most of the mortgage and family’s expenses, notwithstanding the periods of the husband’s unemployment and limited employment.
Contributions 2016 -2019
The parties separated in July 2016 and the husband moved to Melbourne. However, the parties reconciled in late 2016 and the husband returned to the family home. From 2016, in addition to the joint account, the parties’ also had separate bank accounts. The joint account operated until 2020 when it was closed by the husband.
The wife’s evidence is that from 2016 she paid all of the household bills from her account. However, under cross examination the wife ultimately conceded that the joint account was used to meet a number of joint expenses including insurance, internet and joint holidays. I accept, however, the wife’s evidence that she transferred money from her own account into the joint account to meet some of these joint expenses.
It is uncontested that in 2016 when the husband moved to Melbourne the wife took out a loan of $8,000 on the husband’s behalf at his request (Loan). The wife’s evidence is that the Loan was paid into the joint account and the husband withdrew the funds whilst he was living in Melbourne. This is uncontested. The wife’s evidence is that the husband repaid “about $4,500” of the Loan and she repaid the balance. This evidence was not challenged by the husband and under cross examination the husband agreed that he transferred money into the joint account for Loan repayments. Accordingly, I accept the wife’s evidence as to the Loan. I also accept that the Loan repayments made by the husband to the joint account represent use of the joint account by the husband, not a contribution to joint expenses.
The wife did not disclose all of the bank statements from the parties’ joint account for the period 2016 -2019 until the second day of trial. The wife disclosed statements for the joint account only for the period July-December 2016 and then from July 2019 onward, omitting statements for the period in which the wife asserts that the husband made no financial contributions to joint expenses. It became apparent that those statements had been in the possession of the wife’s solicitor for a period of 2 years. The husband submits that in accordance with authorities such as Weir & Weir (1993) FLC 92-338 and Chang & Su [2002] FamCA 156 the wife’s non-disclosure entitles the court to take a “robust approach” in making findings adverse to the wife in relation to issues in dispute. I reject that submission. Although disclosure was made late, it was not the fault of the wife and full disclosure was made and able to be tested by the close of evidence.
The husband submits that the evidence in the bank statements directly contradicts the wife’s evidence that he did not contribute at all to joint expenses paid for from the joint account. The wife submits that the husband is conflating the use of the joint account with the payment of joint expenses from the joint account. I reject that submission. Counsel for the husband prepared a table documenting transfers from the husband’s account to the joint account and vice versa for the period 1 January 2017 until separation in 2019 following the production of the relevant bank statements on the second day of trial. That demonstrated that the husband had contributed a net sum of $19,550.16 to the joint account during that period. The wife conceded this. However, the wife’s evidence was that the husband “took it back out.” The wife submits that the focus of the table is too narrow to be of assistance and does not include ATM and other cash withdrawals or amounts spent for the husband’s own purposes. The wife submits that the evidence based on the table and the joint account should be disregarded. I reject that submission. Under cross examination the wife conceded that if cash withdrawals were made by the husband from the joint account it is reasonably likely that money was used to buy illicit substances, the husband spent between $300-$900 per week on illicit substances, the illicit substances was purchased for both the husband and the wife’s use and that this was a joint expense. She conceded that if the husband took cash out from the joint account it was highly likely that he was using it to meet joint expenses, adding “plus his work. Like, what he got for work. Food and all the things that he did that I don’t know about. The wife ultimately conceded that taking out cash to feed himself while working was a reasonable living expense for the husband to incur. Further, under cross examination the wife conceded that the husband’s expenditure on illicit substances, whether it be funded from the joint account or his own account, meant that she was able to use other funds to pay joint expenses. Accordingly, I find that the husband did contribute to joint expenses between the period 2016 - 2019 and that the wife did not, as asserted, pay for all joint expenses from her account. However, in light of the husband’s evidence under cross examination that the wife transferred money to him from the joint account when his personal account was low, that from 2016 until the present time he had spent all his earnings, habitually ran his bank account down to nothing, and that had been the pattern since he opened the account in 2016, together with the evidence which I have accepted that the wife transferred money from her own account to pay some of the joint expenses, I find that the wife’s financial contributions were in excess of those of the husband in this period.
Post-separation
Post separation the wife remained living in the Suburb F Property. The wife has therefore had the benefit of residing in the property rent-free since November 2019, being a period of nearly four years.
The wife’s evidence is that post separation she installed fixtures on the Suburb F Property at the cost of $14,000, paid for the roof repair of the Suburb F Property in the sum of $4,900, met the shortfall in costs for the Suburb C Property of $966, repaid the outstanding sum of the Loan of $2,500 and paid an outstanding debt of $1,650 on photographs she says were ordered by the husband but not entirely paid for.
In cross examination, the husband conceded that there was a shortfall between the rental payment received for the Suburb C Property and expenses, and that he did not make any contribution in respect of this after separation. Accordingly, I accept the wife’s evidence as to this matter and find that she paid the shortfall of $966 for the Suburb C Property. For reasons set out earlier, I have previously accepted the wife’s evidence as to the Loan and therefore find that she also paid the outstanding amount on the Loan post separation. Accordingly, I find that the wife made these contributions post separation and have taken them into account in a minor way.
As to the other sums the wife’s asserts she paid in relation to the house fixtures, the roof repairs and the photographs, the wife did not provide any independent probative evidence of these matters. She did not provide any invoice or receipts for the payment she claims to have made nor any bank statements to substantiate that these payments had been made.
The wife submits that in considering the sufficiency of evidence to prove particular matters, the Court should bear in mind that the husband did not dispute anything in the wife’s 9 September 2022 affidavit until he served a consolidated trial affidavit on 31 July 2023. The wife says that the husband’s consolidated trial affidavit supplemented his original affidavit by an additional 76 paragraphs and some 13 annexures and that the wife was only provided with 2 weeks to respond to this expanded case. I reject those submissions. Firstly, the husband filed material in accordance with the Orders of this Court, which required “an updated single consolidated trial affidavit” to be filed by the husband. I find nothing unusual in that affidavit, amongst other things, taking issue with matters raised in the wife’s then most recently filed affidavit (being the wife’s 9 September 2022 affidavit). Secondly, the wife did not at any time file a single, updated consolidated trial affidavit as ordered and at the hearing the wife was granted leave to rely on the wife’s 9 September 2022 affidavit and an affidavit filed on 14 August 2023 (14 August Affidavit). The 14 August Affidavit was filed out of time. The 14 August Affidavit says its purpose is to “respond to new matters raised by [the husband] in his affidavit of 31 July 2023.” Accordingly, the wife on her own evidence did respond to the matters contested by the husband in his trial affidavit but did not disclose any of the evidence referred to above. Thirdly, it is the wife’s case that she expended the sums asserted for the reasons asserted and it is for her to produce evidence to support these assertions. Accordingly, in the absence of any independent probative evidence I have not had regard to the sums the wife’s asserts she paid in relation to the house fixtures, the roof repairs and the photographs.
Contributions to the welfare of the family
The parties were in dispute as to the non-financial contributions the husband made during the relationship. The wife’s evidence is that the husband did not provide much help around the house, saying she did the housework, the shopping and the majority of the cooking. She says she also did the mowing and maintenance of the external areas. Her evidence is that she arranged her work hours around her children’s needs and relied on long day care and before and after school care. Her evidence is that she took the children to day care and then when they were older her grandmother took them to and from school until they could go on their own. She says that the husband never took the children to school. The wife conceded however that until 2007 the husband was a hard worker and that her work had greater flexibility allowing her to drop off and collect the children from care.
The husband’s evidence is that he would do work around the house and assist with external maintenance when he had time. Under cross examination he agreed this “wasn’t very often”. His evidence was that he was working “13, 14 hours a day”. I reject that evidence. The husband’s income is not consistent with working 13 or 14 hours a day, regularly throughout the entirety of the relationship. Nor does his employment history support this. The husband had periods of both unemployment and reduced or limited employment. His employment cannot explain his reduced contribution to the welfare of the family, which on his own evidence was “not very often.” Accordingly, whilst I consider that the wife sought to minimise the husband’s non-financial contributions, I am satisfied on the evidence before the Court that the wife took on the lion’s share of responsibility for running the household and caring for the children. I have taken this contribution into account.
The husband deposed to supporting the wife’s brother (Mr T) for two periods; the first being in 2000 for 12 months and the second in 2003/2004 for 18 months. The husband’s evidence is that Mr T lived with the husband and wife in 2000 and then again with his partner (Ms U), child and friend (Mr V) in 2003/2004. His evidence is that Mr T and Ms U did not contribute financially or non-financially to the household. The wife disputes the husband’s evidence as to these matters, saying that Mr T lived with the parties in 2000 for 6 months and then he and Ms U lived with the parties in 2010-2011 for about 1 year. Her evidence is that they contributed financially, with household chores and by assisting with works on the property. Despite deposing to these matters, the husband made no submissions regarding them or their relevance or how these matters ought be taken into account. If it be contended that this constitutes a contribution under s 79(4)(c), I reject that contention. The word “family'' in s 79(4)(c) refers to the nuclear family: In the marriage of Mehmet (1986) 11 Fam LR 322.
It is clear from the evidence before the Court that the wife administered the family’s affairs and finances. She ensured that mortgages and bills were paid. Her uncontested evidence is that she used credit and borrowed money from the children to pay expenses and allowed her grandmother to pay bills and buy clothes, shoes and school supplies for the children. The husband’s evidence is that he was unaware of these matters and that the wife “controlled our finances”. Under cross examination, he said that he was unaware that there was any financial stress on the household. In circumstances where until 2016 all expenses were paid from the joint account, and noting that even after that a number of joint expenses were paid from the joint account, I am unable to see how the wife “controlled” the parties’ finances or how the husband could be unaware of the household’s financial stress. At the very least, the husband must have been aware of his lack of contributions to the joint account during the periods that he was unemployed and also of his reduced capacity to contribute when he was in limited employment or underemployed. Rather, I consider that for the majority of the relationship the husband took no interest in ensuring the household’s finances were managed and that the family could “make ends meet” and simply left this to the wife. I have taken this contribution by the wife into account.
Family violence
There are competing allegations of family violence by the parties.
In Kennon & Kennon (1997) FLC 92-757 (Kennon) the Full Court, dealing with allegations of family violence said:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous then they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79. We prefer this approach to the concept of “negative contributions” which is sometimes referred to in this discussion.
In the above formulation, we have referred only to domestic violence, for the reasons which we indicated earlier, but its application is not limited to that.
We think the earlier cases may have overlooked the distinction which more recent cases have emphasised. However, if it is thought now to be artificial to distinguish those long standing authorities in that way, it appears to us, having regard to the reconsideration which has been given to this matter over recent times, that it may now be appropriate for this court to treat those authorities as no longer binding and to be subject to the qualifications and distinguishing feature referred to in the recent decisions of this Court. There have been marked changes in perceptions, both legal and social, about domestic violence and its impact in recent times and it appears appropriate to give effect to them. (references to case law in original omitted)
However, it is important to consider the “floodgates” argument. That is these principles, which should only apply to exceptional cases, may become common coinage in property cases and be used inappropriately as tactical weapons or for personal attacks and so return this court to fault and misconduct in property matters – a circumstance which proved so debilitating in the past. In addition, there is the risk of substantial additional time and cost.
However, in our view, s 79 should encompass the exceptional cases which we described above. It would not be appropriate to exclude them as a matter of policy because of this risk. It is a matter of common sense for lawyers involved and, where that may not be sufficient, it is a matter for a firm hand by the Court at an early stage when a case appears to raise those issues.
It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass … conduct related to the breakdown of the marriage.
The husband deposes to on-going verbal abuse by the wife during the relationship. However, the husband makes no submissions as to these matters nor seeks that the Court take them into account.
The wife’s evidence is that the husband attempted to strangle her in early 2018 and again on 4 or 5 further occasions throughout 2018 and 2019 (2018 and 2019 Incidents). This is denied by the husband.
The wife also says that sometime in 2018 or 2019 the husband pushed her, causing her to fall in the kitchen (Pushing Incident). The wife also says that in about late 2019 the husband smashed a door into her arm (Door Incident). The wife says these latter two incidents occurred in the presence of the children. The wife did not report any of the above incidents to the police and there is no other evidence before the Court as to them.
The wife submits that her contributions to the family’s welfare were made more arduous by the threat of domestic violence.
In relation to the Pushing Incident, the husband’s evidence is that during an argument he went to push the wife, the wife stepped backwards and fell over in the kitchen. He denies that the children were present. In relation to the Door Incident, the husband’s evidence is that he does not recall such an incident and that if it did occur the wife must have been behind the door and it would have been accidentally.
In relation to the wife’s allegations of family violence, the 2018 and 2019 Incidents are unparticularised, despite the wife filing three affidavits in this matter, including a “reply” affidavit. The wife’s “reply” affidavit provides no further detail regarding these incidents notwithstanding the husband’s trial affidavit expressly denying these incidents and the reply affidavit addressing the relevant paragraph of the husband’s affidavit. Whilst I accept that many, if not most, allegations of family violence are uncorroborated, given the very serious nature of the 2018 and 2019 Incidents, I would expect the wife to be able to provide more detail regarding them. At the least, I would expect the wife’s evidence to have identified the dates on which these incidents occurred. They are not something I consider would pass without note. Accordingly, on the evidence currently before the Court I am unable to conclude to the requisite civil standard (s 140 Evidence Act 1995) that the 2018 and 2019 Incidents occurred. On the evidence before the Court, I am also unable to conclude that the Door Incident occurred.
As to the Pushing Incident, on the husband’s own evidence he went to push the wife. This meets the definition of family violence in s 4AB(1) of the Act in that it is threatening or other behaviour that causes the wife to be fearful. Accordingly, I find that the husband did perpetrate family violence on the wife.
The wife did not give any evidence that the husband’s family violence arising from the Pushing Incident (or any other alleged family violence) made her contributions more arduous. Submissions to that effect were made but she did not give any evidence as to this.
I am unable to find that the Pushing Incident, which I accept occurred, had materially made the wife’s contribution over the relationship or from that date more arduous. Accordingly, I do not consider that it falls within the compass of exceptional cases as described in Kennon so as to justify a contribution adjustment in favour of the wife.
Contributions conclusion
Whilst I have set out my consideration of the parties’ evidence in respect of their contributions in categories for convenience, my assessment of their contributions is a holistic one. I have weighed and assessed the contributions of all kinds and from all sources made by each of the parties throughout the period of cohabitation, as the Full Court in Wallis & Manning (2017) FLC 93-759 at [20] made clear is the task of the trial judge.
Having considered the totality of the parties’ evidence as to the contributions they each made during a 14 marriage and a 22 year relationship, I assess the contributions of the parties to be 70% to the wife and 30% to the husband. That reflects a differential of 40% between the parties in respect of their contributions. Where the total value of the assets is $1,595,297 in round terms, this differential equates to $638,118 in round terms, which I consider appropriate, reflecting the parties’ respective contributions.
Impact on earning capacity
Section 79(4)(d) of the Act requires me to consider the effect of any proposed order upon the earning capacity of each party to the marriage. The orders contemplated do not have an impact on the earning capacity of either party.
SECTION 75(2) FACTORS
In considering what orders should be made under s 79, s 79(4)(e) requires that I take into account the matters referred to in s 75(2). Neither party sought any adjustment due to s 75(2) factors.
Neither party sought that the disparity in property, as determined by the above contributions assessment, be taken into account.
I refer to the background set out earlier in my reasons regarding the parties ages, employment and income. Neither party relied on any evidence to suggest that their health was a relevant consideration pursuant to s 75(2).
The husband is not currently earning an income. However, based on his earnings in the period 1 September 2022 – 9 August 2023, I find that the husband has a significant earning capacity. This is a matter I take into account pursuant to s 75(2)(b).
The wife’s evidence is that her income is currently enhanced due to overtime and that this will cease when an appointment to her previous role is made. Notwithstanding that, based on payslips disclosed by the wife, I find that the wife’s earning capacity is significantly in excess of that to which she deposed. This is a matter I take into account pursuant to s 75(2)(b).
Both parties depose to having ceased using illicit substances and the wife also deposes to having given up smoking cigarettes. The resources previously directed by the parties to the purchase of cigarettes and illicit substances will therefore be available to the parties. This is a matter I take into account pursuant to s 75(2)(b).
The wife will retain the Suburb F Property unencumbered. She will therefore have rent-free accommodation. This is a matter I give weight to pursuant to s 75(2)(b). I have earlier addressed the asserted poor condition of the Suburb F Property and as already set out, for the reasons given earlier, give no weight to those matters.
The husband resides with his partner in a property owned by the partner’s father. He pays no rent but contributes between $450 - $500 per week to living expenses for him and his partner. The husband’s evidence is that his partner is not in paid employment and receives a carer’s pension. The husband did not disclose his partner’s financial circumstances other than as set out above and under cross examination claimed not to know them or have asked about them. I find this implausible and accept the submission of the wife that I ought infer that the financial circumstances of the husband’s partner would not assist the husband’s case. This is a matter I take into account pursuant to s 75(2)(m).
The parties’ two adult children, Mr L and Ms K, live with the wife. Mr L is 19 years old and Ms K is 25 years old. The wife deposes that Mr L is attending a psychiatrist and takes medication. She also deposes to Mr L seeing specialists. Her evidence is that she pays for all of Mr L’s medical expenses. There is however no medical evidence before the Court as to the nature and extent of Mr L’s medical issues, his treatment or the cost of his medical expenses. Accordingly, I do not give any weight to these matters.
The wife agreed that both Mr L and Ms K are employed full time. The wife was not aware of Ms K’s weekly income but said that Mr L earns approximately $1000 per week. Her evidence is that Mr L does not contribute to household bills and the wife does not ask him to out of a sense of maternal obligation. Her evidence is that Ms K pays for 1/3 of the household power and water bills and buys her own food. Under cross examination the wife conceded that she had received $5500 from Mr L in early 2023, which she said was a loan, but she had not made any repayments. In light of the above matters, I find that Ms K and Mr L are able to financially support themselves and also provide the wife with a financial resource. This is a matter I take into account pursuant to s 75(2)(o).
The wife claims there was wastage by the husband purchasing illicit substances during the relationship. In Kowaliw & Kowaliw (1981) FLC ¶91-092 at p 76,644 (Kowaliw) the court said:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a)where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b)where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
In Browne v Green (1999) FLC 92-873 at p 86,360 the court said that the principles stated by Baker J in Kowaliw do not constitute any form of fixed code. They are no more than guidelines for use in the exercise of the discretionary jurisdiction conferred by s 79 of the Act.
In Toft & Royce [2013] FamCA 372 said at [14]:
The High Court directed in Stanford that the first step in the consideration of whether to exercise the power under s 79 is to identify, according to ordinary legal and equitable principles, the existing legal and equitable interests of each of the parties in the property in dispute (at [37]). The practice of creating notional ‘add-backs’ for assets that have been dissipated has no place in this assessment; however, it does not follow that unilateral behaviours resulting in the dissipation of property or premature distributions are no longer relevant — in appropriate circumstances they may affect the final order by virtue of s 75(2)(o).
Accordingly, if there was wastage by the husband as asserted by the wife it would, properly, be relevant to s 75(2)(o). There is no dispute that the husband used illicit substances and, as set out above, the evidence is that he spent between $300 - $900 per week on illicit substances. The husband also conceded that he has a significant dependence on illicit substances. However, for the following reasons, I reject the wife’s submission that there was wastage by the husband. Firstly, as set out in paragraph [77] above, the wife conceded under cross examination that the illicit substances purchased by the husband was for both of their use and that the purchase of illicit substances was a joint expense. I consider the evidence before the Court supports a conclusion that one of the characteristics of the parties’ relationship is long term mutual use of illicit substances. In those circumstances, I am unable to see how this expenditure could, properly, be considered wastage solely by the husband. Secondly, the wife conceded that in the period between late 2016 and late 2019 she and the husband used illicit substances except for one week before separation. Thirdly, the wife’s evidence as to her illicit substances usage outside of this period was inconsistent. In the wife’s 9 September 2022 affidavit her evidence was that she was “an on and off smoker of cigarette’s and [illicit substances] over the years” and that she gave up smoking illicit substances when the husband was unemployed as they couldn’t afford it. Under cross examination her evidence was that in addition to not using illicit substances when the husband was unemployed she also did not use illicit substances when she was pregnant and breastfeeding saying “ I did give up for a period of about three years, three times”. When pressed on this being omitted from her affidavit, the wife then said that she hadn’t used illicit substances when she was pregnant or the year after. Her evidence then was that said didn’t use illicit substances for a period of less than two years, twice, subsequently adding that “there was another period, but I – I’m not – I can’t say when. One of those periods would have been in – during the time [Mr Bowers] wasn’t working.” Accordingly, I find that the wife’s evidence as to her illicit substances usage prior to 2016 is unreliable and inconsistent. I therefore find that the wife, along with the husband, used illicit substances for the vast majority of the parties’ relationship. In those circumstances, the husband’s illicit substances use and expenditure is not a matter I take into account pursuant to s 75(2)(o).
I find that the above s 75(2) factors balance one another out and would not on their own warrant an adjustment to my contribution - based assessment. Further, as set out above, neither party seeks any adjustment pursuant to s 75(2).
CONCLUSION
Pursuant to my contribution-based assessment the assets of the parties will be apportioned 70% to the wife and 30% to the husband. Accordingly:
(a)the wife will retain the Suburb F Property, her superannuation and other assets and receive a cash payment of $162,235 (rounded) from the net proceeds of the sale of the Suburb C Property; and
(b)the husband will retain his assets, his superannuation and receive a cash payment of $300,103 (rounded) from the net proceeds of the sale of the Suburb C Property.
I consider this to be a just and equitable outcome, in percentage and actual terms, consistent with my holistic assessment and weighing the parties’ respective contributions over a 22 year relationship and a separation of some four years.
Accordingly, I make the orders set out at the commencement of this judgment.
I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 4 December 2023
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