Brimmer & Brimmer
[2025] FedCFamC2F 149
•13 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Brimmer & Brimmer [2025] FedCFamC2F 149
File number(s): DGC 2551 of 2022 Judgment of: JUDGE JENKINS Date of judgment: 13 February 2025 Catchwords: FAMILY LAW – PROPERTY – lengthy marriage – two children – small asset pool – loan from husband’s parents in dispute – husband’s parents joined as third parties – loan agreement signed by all parties early in marriage – third parties to be repaid funds owed – various contributions deemed to be equal over time – section 75(2) factors favour the wife including care of children and earning capacity – orders for 65 per cent of all assets to be divided in favour of the wife. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 75, 79, 102NA
Cases cited: Aleksovski & Aleksovski [1996] FamCA 111
Bevan & Bevan [2013] FamCAFC 116
Biltoft & Biltoft [1995] FamCA 45
Carlson & Fluvium [2012] FamCA 32
Chorn & Hopkins [2004] FamCA 633
Clauson & Clauson [1995] FamCA 10
Dickons & Dickons [2012] FamCAFC 154
Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395
In the Marriage of Omacini [2005] FamCA 195
Kennon & Kennon [1997] FamCA 905
Kowaliw & Kowaliw [1981] FamCA 70
Lee Steere & Lee Steere (1985) FLC 91-626
Mallet v Mallet [1984] HCA 21
Sahrawi & Hadrami [2018] FamCAFC 170, (2018) FLC 93-857
Stanford v Stanford [2012] HCA 52
Whisprun Pty Ltd v Dixon [2003] HCA 48
Division: Division 2 Family Law Number of paragraphs: 95 Date of hearing: 2 & 3 December 2024 Place: Melbourne Counsel for the Applicant: Mr Kistler Solicitor for the Applicant: Miltons Lawyers Representative for the First Respondent: Appearing in person Counsel for the Second and Third Respondents: Mr Ryan Solicitor for the Second and Third Respondents: Robinson Gill
Table of Corrections 25 February 2025 In paragraph 42 and annexure A, references to the superannuation subtotal have been corrected from “$249,292” to “$249,293” and the overall total (assets – liabilities + superannuation) from “648,695” to “$648,696”, pursuant to r 10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“r 10.13(1)(e)”) to reflect the Court’s intention.
In paragraph 82, the calculation has been corrected to reflect the Court’s intention to clarify the division of the property pool for the parties by breaking down the calculations to provide the husband with 35 per cent of the non-superannuation asset pool and the wife 65 per cent of the non-superannuation asset pool pursuant to r 10.13(1)(e).
ORDERS
DGC 2551 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BRIMMER
Applicant
AND: MS BRIMMER
First Respondent
MR C BRIMMER
Second Respondent
MS D BRIMMER
Third Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
13 FEBRUARY 2025
Amended pursuant to r. 10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 25 February 2025
THE COURT ORDERS THAT:
1.By no later than 1 June 2025 (“the date”) the Wife:
(a)Pay the sum of $83,000 (“the first payment”) to the Second and Third Respondents and contemporaneously, the Second and Third Respondents do all things necessary to remove the caveat number … secured over the property situate at E Street, Suburb F (“the Suburb F property”);
(b)Pay $200,000 into the Trust Account of Miltons Lawyers on behalf of the
ApplicantHusband,First Respondentand Ms G (“the trust monies”) pending the resolution of the Supreme Court costs proceedings between Ms G and the Wife (“the Supreme Court litigation”) (“the deposit”) and contemporaneously, the Husband and Wife do all things necessary to cause Ms G to remove caveat number … secured over the Suburb F property;(c)Pay to the Husband
$60,000$88,840.05 (“thefirstsecond payment”) and contemporaneously, the Husband do all things necessary to cause H Bank to remove the caveat number … lodged by H Bank secured over the Suburb F property; and
(d)Pay to the Husband the amount of $171,805 (“the second payment”) andDischarge the mortgages over theproperty situate at E Street,Suburb F property.(“the Suburb F property”).
2.Contemporaneously with the first and second payments and the discharge of the mortgages the Husband transfer to the Wife all of his right title and interest in the Suburb F property and pay out his debt to H Bank.
3.Upon the conclusion of the Supreme Court litigation the remaining trust monies be paid to the Wife.divided:
(a)65 per cent to the Wife; and
(b)35 per cent to the Husband.
4.In the event the wife fails to make the
deposit, thefirst and second payments, or to discharge the mortgages over the Suburb F property by the date, the Suburb F property be soldas follows:pursuant to order 5 herein.
Sale of Suburb F Property
5.The Suburb F property be sold pursuant to paragraphs 8, 9, 11, 12, 13 and 14 of the Orders made on 14 November 2023, subject to the requirement that the parties do all acts and things and sign all documents necessary to ensure that the Suburb F property be listed on the market for sale by no later than 30 June 2025, (“the sale”) and upon the sale of the Suburb F property, the proceeds of sale be divided in the following manner and priority:
(a)To pay costs, commissions and expenses of sale;
(b)To discharge the mortgages secured against the title of the Suburb F property;
(c)To pay the sum of 21.73 per cent of the net proceeds of sale of the Suburb F property (after the payments in Order 5 (a), (f)(i) and (f)(ii) herein) to the Second and Third Respondents and contemporaneously, the Second and Third Respondents do all things necessary remove of the caveat number … secured over the Suburb F property;
(d)The amount owed by the Wife to her former solicitor, Ms G (in the sum of approximately $200,000), be placed in the Trust Account of Miltons Lawyers on behalf of the Wife, Husband and Ms G pending the resolution of the Supreme Court litigation and contemporaneously, Wife and Husband do all things necessary to cause Ms G to remove caveat number … secured over the Suburb F property;
(e)To the Husband, the amount owed by him to H Bank (in the sum of approximately $60,000) (“the H Bank payment”) of the remaining balance and contemporaneously, the Husband do all things necessary to cause H Bank to remove the caveat number … lodged by H Bank secured over the Suburb F property;
(f)The remaining balance be placed in the Trust Account of Miltons Lawyers on behalf of the Wife and Husband, pending the outcome of the Supreme Court litigation, following the conclusion of which the balance be divided between the parties to effect the following distribution of the net proceeds:
(i)Such amount as required to provide to the Husband 35 per cent of the net non-superannuation pool as set out in annexure “A” herein on the basis that the Husband is responsible for the entirety of the H Bank loan; and
(ii)Such amount as required to provide to the
Husband 35Wife 65 per cent of the nettnon-superannuation pool as set out in annexure “A”herein 65 per cent to the Wife, on the basis that the Wife is responsible for the entirety of the Supreme Court litigation claim by Ms G.
6.Pending the payment and discharge of the mortgages or the sale, the Wife be restrained from further encumbering the Suburb F property save to give effect to these orders.
7.The Wife continue to make repayments towards the mortgages of the Suburb F property as and when they fall due until such time the Suburb F property is transferred or sold and the mortgages discharged, and the Wife shall be solely responsibility for any interest, fees or other penalty from her share of the sale proceeds in the event she fails to make such repayments.
8.The parties shall be at liberty to provide any credit institution a copy of documents from these proceedings in order to obtain finance.
9.In the event of the sale the Wife choose a conveyancing firm and notify the Husband no later than 7 June 2025, failing which the Husband has exclusive rights to appoint such a firm without consultation with the Wife.
10.There be liberty to apply with respect to the terms of the sale.
Division of Assets and Liabilities
11.The Husband shall retain to the exclusion of the Wife, his right, title and interest in the following:
(a)Any bank accounts in his sole name;
(b)His motor vehicle;
(c)Any liabilities in his sole name; and
(d)Any chattels and personal effects in his possession and held at the Suburb F property as at the date of these Orders.
12.The Wife shall retain to the exclusion of the Husband, her right, title and interest in the following:
(a)Any bank accounts in her sole name;
(b)Her motor vehicle;
(c)Any liabilities in her sole name; and
(d)Any chattels and personal effects in her possession as at the date of these Orders.
Superannuation Split
13.These orders are made to s 90XZD of the Family Law Act 1975 (Cth) ('the Act').
14.The parties as trustees ("the trustee") of the Brimmer Super Fund ("the fund") have been afforded procedural fairness and are agreeable to being bound by the terms of these orders.
15.A base amount to be determined in accordance with the Family Law (Superannuation) Regulations 2001 (Regulations) (Cth) to give effect to a 65/35 split in favour of the Wife of the total superannuation pool is allocated in accordance with s 90XT(4) of the Act, to the Wife, Ms Brimmer, out of the interest of the Husband, Mr Brimmer, in the fund ('the base amount').
16.Pursuant to section 90XJ of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the Husband's interest in the fund, the Wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations2001, using the base amount and that there should be a corresponding reduction in the entitlements of the Husband but for this agreement.
17.The trustee must forthwith:
(a)sign all documents and do all acts and things necessary to facilitate the roll-out of the Wife's member entitlement contemporaneously with the base amount split;
(b)the Wife’s member entitlement in the fund (to be finally determined upon completion of tax return for the financial year ending 30 June 2023) must be rolled-out to a superannuation fund nominated by the Wife; and
(c)until the Wife’s member entitlements pursuant to sub-paragraph (b) hereof and the base amount spilt created by paragraph 15 are rolled out from the fund (the total rollout from the fund to the Wife's nominated fund being that sum arrived at by adding the amount of the Wife's member entitlement at the date of the rollout to the base amount), the parties are restrained from dealing with the assets of the fund, or attempting to do so, without the other's party's express written consent.
(d)The operative time for the superannuation provisions of these orders is four business days after the date of service of sealed Orders upon the Trustee.
18.From the roll-over of the Wife's entitlements in the fund to a fund of her election in accordance with this agreement:
(a)the Husband must indemnify and forever keep indemnified the Wife against any and all past present and future liabilities, debts and taxation associated with the fund;
(b)the Wife must forthwith do all acts and thing as may be necessary to resign as a trustee; and
(c)save for any right against or with respect to the fund arising under these orders, the Wife relinquish all right, title or interest in the fund.
19.The Husband must retain control of the trustee and the fund upon compliance with the provisions of these orders.
Other
20.Unless otherwise specified in these orders and save for the purpose of enforcing any movies due under these or any subsequent orders:
(a)each party is solely entitled to the exclusion of the other to all property (including choses in action; and any superannuation) in the possession or sole name of such party;
(b)insurance policies must remain the sole property of the owner named therein;
(c)each party is solely liable for and must indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(d)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
21.In the event that either party fails to comply with any Order hereof, the Judicial Registrar of the Federal Circuit and Family Court of Australia (Melbourne registry) is empowered and authorised to exercise all necessary documents pursuant to section 106A of the Family Law Act 1975 (Cth), and by way of consequential arrangement to this order. An affidavit by the party and/or their solicitor setting out the failure to comply with these orders will be sufficient evidence of non-compliance.
22.Pursuant to section 81 of the Family Law Act 1975 (Cth) these orders shall finalise all financial relationships between the parties.
23.All extant applications are otherwise dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r. 10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 25 February 2025
JUDGE JENKINS:
This is a property matter concerning the applicant husband, Mr Brimmer (“the husband”) and the respondent wife, Ms Brimmer (“the wife”) who were married for 11 years and have two children together.
The dispute primarily centred around a loan (“the loan”) provided by the husband’s parents, Mr C Brimmer and Ms D Brimmer (“the husband’s parents”) who were joined to the proceedings as the second and third respondents respectively. Although there are four parties in this matter, for ease of reference I shall refer to the husband and wife as “the parties.”
BRIEF BACKGROUND
The parties met in about 2009 and began cohabitation upon their marriage in 2010.
The parties have two children, X born in 2012, and Y born in 2015 (“the children”).
The husband has worked fulltime as a professional for the majority of the relationship.
The wife worked as a professional other than when she took maternity leave. The wife was the primary carer of the children and homemaker during the parties’ relationship.
On the first day of the final hearing, the parties agreed to final parenting orders providing for the children to live with the wife and spend time with the husband each alternate weekend and each Wednesday evening upon the husband obtaining suitable accommodation, as well as on special occasions.
THE PARTIES PROPOSALS
The husband initially sought orders that the assets be divided equally including the loan to his parents. However, by the end of the trial the husband proposed a 60/40 division of the non-superannuation assets in favour of the wife and that otherwise the wife retain her superannuation, and the husband’s superannuation be equalised between them.
The wife sought an 80/20 property division in her favour of all of the assets excluding the loan but including the superannuation.
DOCUMENTS RELIED UPON
The applicant husband relied upon the following documents:
·his case outline filed 29 November 2024;
·his further amended initiating application filed 4 November 2024;
·his trial affidavit filed 8 November 2024;
·his financial statement filed 4 November 2024; and
·the expert witness report annexed to the Affidavit of Ms J (“the valuer”) filed 11 November 2024.
The respondent wife relied upon the following documents:
·her case outline filed 29 November 2024;
·her response to an application in a proceeding filed 21 July 2023; and
·her affidavit filed 7 June 2024.
The wife had not complied with orders and directions to file a trial affidavit, however, she was otherwise permitted to rely upon her affidavit filed on 7 June 2024 subject to various paragraphs which were struck out following objection.
The second and third respondents relied upon the following documents:
·the outline of case filed 29 November 2024;
·the response to initiating application filed 13 June 2024;
·affidavit of the second respondent filed 7 November 2024; and
·affidavit of the third respondent filed 7 November 2024.
In addition, the following exhibits were tendered in this matter:
·H1 – asset table prepared by the husband dated 3 December 2024 (and amended on 5 and 6 February 2025);
·H2 – proposed minute of the husband dated 3 December 2024;
·W1 – asset table prepared by the wife dated 3 December 2024;
·W2 – letter addressed to the wife in relation to child support assessment dated 6 November 2024; and
·R1 – title search for the property situated at E Street, Suburb F property (“the Suburb F property).
THE EVIDENCE
I have had regard to the contents of each of the documents relied upon by the parties save for parts which were determined to be objectionable. I have not read anything contained in tender bundles, subpoenaed material, reports provided by external agencies or any documents emailed to the court, which were not otherwise separately tendered into evidence as exhibits.
It has not been possible to include every aspect of each of the parties’ evidence. As per the High Court in Whisprun Pty Ltd v Dixon [2003] HCA 48, just because I have not mentioned something in these reasons does not mean that I have not considered it.
Section 140 of the Evidence Act1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
On 17 June 2024 an order was made pursuant to section 102NA of the Family Law Act 1975 (Cth) (“the Act”). As a consequence, neither party was permitted to cross-examine the other. The husband was represented at this final defended hearing however the wife was self-represented.
She had four sets of lawyers in 2023 and 2024, with the last withdrawing on 18 November 2024. The wife was made aware by way of notation in the interim orders but also by email from the court that she would not be able to personally cross-examine the husband if she remained self-represented.
The wife did not however seek to adjourn the matter. As a result, the husband was not cross-examined by the wife and only briefly questioned by counsel for the husband’s parents.
In terms of the witnesses, the wife, although at times emotionally heightened, gave her evidence in a relatively straight forward manner. So too did both of the husband’s parents. I did not form the impression that any of the witnesses were deliberately dishonest. Rather, as observed by Kent J in Carlson & Fluvium [2012] FamCA 32 at [165]:
…human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues.
THE LAW
The relevant legal principles governing any application for property settlement are set out in Part VIII of the Act. Section 79(1) of the Act authorises the court to make such orders between the parties as it considers appropriate. Section 79(2) of the Act states that the court cannot make an order for property settlement unless it is just and equitable to do so.
Full Court authorities have identified a four-step process assist the Court in reaching a just and equitable decision: see Lee Steere & Lee Steere (1985) FLC 91-626; Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395 (“Hickey”); and In the Marriage of Omacini [2005] FamCA 195.
The court must first identify the parties' legal and equitable interests in the assets arising from their relationship, as well as their liabilities. The court should then assess each party's contributions during the relationship in accordance with sections 79(4)(a) to (c) of the Act.
The third step requires the court to consider the factors set out in sections 79(4)(d) to (g) of the Act, including the “future needs” factors identified in section 75(2). The court should then consider its findings and, what order, if any, is just and equitable.
The Full Court in Bevan & Bevan [2013] FamCAFC 116 at [86] made it clear that the four-step process is not legislatively mandated. Rather, it provides a structure to ensure that a property settlement order is only made when the court is satisfied that it is just and equitable to do so, and that the terms of the order itself are also just and equitable.
WHAT IS THE ASSET POOL FOR DIVISION IN THIS CASE?
Although I requested that the parties consult and prepare a joint assets and liabilities table indicating what was agreed and what was not, at the start of final submissions the parties handed up separate asset tables.
Despite there being two separate asset tables, there appeared to be very little in dispute and after some further concessions, it was agreed that the pool should be limited to the following:[1]
[1] In the process of writing the judgment I identified what appeared to be an oversight in this consolidated asset table in terms of the part-property payment to each party, with the wife’s part-payment seemingly missing from the table. The parties were notified and upon the error being confirmed on 5 February 2025 the table was amended in the judgment accordingly. A second communication on 6 February 2025 confirmed Motor Vehicle 1 in the table was owned by the husband not the wife.
Description Ownership Applicant’s value Respondent’s value ASSETS 1. Property situated at E Street, Suburb F (“the Suburb F property”). Joint $930,000 Agreed 2. 50% share of Sale Proceeds of the property situated at K Street, Suburb L (“the Suburb L property”). Husband $38,951 Agreed 3. 50% share of Sale Proceeds of the property situated at K Street, Suburb L (“the Suburb L property”). Wife $38,951 Agreed 4. Motor Vehicle 2 Wife $10,000 Agreed 5. Motor Vehicle 1 Husband $12,000 Agreed Assets subtotal: E $1,029,902 LIABILITIES 1. M Bank Home Loan Account ending #...00 (First Mortgage over the Suburb F Property) Joint $276,397 Agreed 2. M Bank Home Loan Account ending #...01 (Second Mortgage over the Suburb F Property) Joint $271,102 Agreed 3. ANZ Frequent Flyer Platinum Account ending #...36 (Credit Card) Husband $14,500 Not agreed 4. American Express Premium Account ending #...03 (Credit Card) Husband $14,500 Not agreed 5. Commonwealth Bank Mastercard Account ending #...66 (Credit Card) Husband $8,500 Not agreed 6. N Bank Credit Card Account ending #...31 (Credit Card) Husband $14,500 Not agreed 7. Westpac Mastercard Account ending #...19 (Credit Card) Husband $6,500 Not agreed 8. Loan from Parents Joint 21.73% of the nett equity in the Suburb F property Not agreed Liabilities subtotal $705,999 $547,499 SUPERANNUATION Name of Fund Type of interest Member Applicant’s value Respondent’s value Brimmer Super Fund SMSF Husband $221,725 $221,725 Brimmer Super Fund SMSF Wife $27,568 $25,000 Superannuation subtotal $249,293 $246,725 TOTAL (assets – liabilities) $323,903 $482,403 TOTAL (assets – liabilities + superannuation) $573,196 $482,403
The issues that required a judicial determination were whether the following should be included in the pool:
·the husband’s credit card liabilities; and
·the loan from the husband’s parents.
The husband’s credit cards
In relation to the credit card dispute, I asked counsel for the husband three questions:
(1)Where was the evidence as to the existence of the credit cards?
(2)Where was the evidence as to when the debt was accrued?
(3)Where was the evidence as to what the credit cards were spent on?
I only received the answer to my first question, and in that regard, counsel for the husband merely referred me to a paragraph in the husband’s trial affidavit which contained a very similar table that was handed to the court. The husband’s evidence otherwise contained no specifics of when the credit cards in his sole name were created and what they were used for.
Authorities such as Biltoft & Biltoft [1995] FamCA 45 and Sahrawi & Hadrami [2018] FamCAFC 170, (2018) FLC 93-857 at [39] make it clear the husband bears the onus of proof as to the existence of any liabilities. Furthermore, pursuant to Chorn & Hopkins [2004] FamCA 633, the court must be satisfied that any such liabilities are referrable to the marriage.
The wife says she was not aware of the husband’s multiple credit cards until the husband provided financial disclosure in August 2022. She says the parties had a joint M Bank credit card which they used during the relationship, but which never had a balance of more than about $2,000. In her affidavit, the wife attested to the husband using that credit card post-separation as follows at [11]:
The Applicant had maxed the [M Bank] Joint Credit card for his and [X]'s living expenses, (food , utility bills ,[…] holidays, company work expenses, [X]'s Psychologist bills, his […] hobby purchases, his car insurances, [phone] games transactions and mobile plan purchases post separation August 2021.
(As per original)
It was put to the wife that the joint credit card was used to pay her car registration, car insurance and house insurance, which she denied. In any event, I note that in the husband’s outline of case, he concedes that the wife ultimately paid out the balance of that card before closing it in November 2023.
Whilst the husband could have tendered into evidence his credit card statements, he did not do so.
Furthermore, even if I accept the husband’s bare assertion that the credit card debt exists and the values he attributes, he did not provide any specifics as to the expenditure to enable the court to determine whether it ought be referrable to the marriage. Accordingly, the husband’s credit card debts shall be excluded from the pool.
The husband’s parent’s loan
It was not in dispute that the parties and the husband’s parents signed a loan agreement in November 2010 (“the loan agreement”) which provided for the parties to receive $100,000 for the purposes of purchasing the Suburb F property.
It was also not in dispute that the loan agreement provided that upon the sale of the Suburb F property, the husband’s parents would receive 21.73 per cent of the nett equity in the home upon its sale.
However, the wife’s case was that:
·the parties did not need the money to facilitate the settlement of the Suburb F property because her parents had also given them money;
·the wife had been forced to sign the loan agreement;
·the wife had no choice but to sign the loan agreement as she was told it was necessary that the agreement be signed to “avoid the tax man” and “avoid inheritance tax”; and
·the loan agreement had been signed at the family home rather than the legal firm asserted by the husband and his parents; and
·she could not recall ever receiving the $100,000 from the husband’s parents.
The evidence of each of the husband’s parents was that the parties needed to borrow the additional funds from them to avoid mortgage lender’s insurance. They maintained that the parties and the parents signed the agreement at a solicitor’s office. They denied forcing the wife to sign the document, although, I accept it is likely they said words to the effect that they would only provide the funds if the parties’ signed the agreement. Whether or not this felt like “force” to the wife, I accept it was the basis on which the husband’s parents were prepared to provide the money. Finally, it was evident that in an earlier affidavit of the wife filed 29 September 2022, which was put to the wife, that she acknowledged the husband’s parents had made this contribution.
In regard to the loan agreement, I make the following findings:
(1)The parties needed to borrow additional funds to avoid mortgage lenders insurance on the purchase of the Suburb F property;
(2)The parties willingly entered into the loan agreement;
(3)The parties received the $100,000 provided for in the agreement;
(4)The loan agreement requires the parties to pay the husband’s parents 21.73 per cent of the equity in the Suburb F property upon its sale; and
(5)On the agreed value of the Suburb F property less the two mortgages, 21.73 per cent of the net equity means the parties owe the husband’s parents approximately $83,000.
Accordingly, I find the asset pool for division between the parties to be as follows:
Description Ownership Value ASSETS 1. The Suburb F property Joint $930,000 2. 50% share of Sale Proceeds of the property the Suburb L property Husband $38,951 3. 50% share of Sale Proceeds of the property the Suburb L property Wife $38,951 4. Motor Vehicle 2 Wife $10,000 5. Motor Vehicle 1 Husband $12,000 Assets subtotal: $1,029,902 LIABILITIES 6. M Bank Home Loan Account ending #...00 (First Mortgage over Suburb F Property) Joint $276,397 7. M Bank Home Loan Account ending #...01 (Second Mortgage over Suburb F Property) Joint $271,102 8. Loan from Parents
Joint 21.73% of the nett equity in the Suburb F property being $83,000 on agreed value Liabilities subtotal: $630,499 SUPERANNUATION Name of Fund Type of interest Member Value 9. Brimmer Super Fund SMSF Husband $221,725 10. Brimmer Super Fund SMSF Wife $27,568 Superannuation subtotal $249,293 TOTAL (assets – liabilities) $399,403 TOTAL (assets – liabilities + superannuation) $648,696 IS IT JUST AND EQUITABLE THAT AN ORDER BE MADE?
Having identified the parties’ assets and liabilities, and prior to making any order pursuant to section 79 of the Act, as per the High Court decision of Stanford v Stanford [2012] HCA 52 (“Stanford”), I must be satisfied that it is just and equitable to do so.
No party has the unalienable right to have the property of the parties divided equally between them, no matter how long the relationship.
Furthermore, although both of the parties urge the court to make orders that alter their interests in their property, the existence of such an agreement is not sufficient, the court must still be satisfied that such orders are indeed just and equitable in all the circumstances of the case.
In Stanford, their Honours, in the joint judgment of French CJ, Hayne, Kiefel and Bell JJ, considered the expression “just and equitable” at [36] and noted that it:
… is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations? It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.
In this matter where the parties’ finances are intermingled, they have property in joint names and they both argue they have made financial and non-financial contributions to the joint property, I find that it is just and equitable to make an order. As to what order is just and equitable this will ultimately be determined after the considerations in section 79(4) of the Act.
Section 79(4)
Section 79(4) of the Act states as follows:
In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last - mentioned property, whether or not that last - mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last - mentioned property, whether or not that last - mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Section 75(2) factors
Further, section 75 of the Act sets out the following factors to be taken into consideration when assessing the “future needs” of the parties:
(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f)subjection to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party’s role as a parent; and
(m)if either party is cohabitating with another person the financial circumstances relation to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
Pursuant to the High Court case of Mallet v Mallet [1984] HCA 21, there is no presumption of equality of division of property, not even in a long relationship and in each case the contributions of each party must be assessed on their own facts.
In determining what orders are to be made pursuant to section 79 of the Act, as set out in Aleksovski & Aleksovski [1996] FamCA 111 (“Aleksovski”) at [50] I must:
…weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment.
Further, in Aleksovski at [90] his Honour Kay J said:
The Judge must weigh up various areas of contribution. In a short marriage, significant weight might be given to a large capital contribution. In a long marriage, other factors often assume great significance and ought not be left almost unseen by eyes dazzled by the magnitude of recently acquired capital… What is important is to somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship.
Those observations were quoted with approval by the Full Court in Dickons & Dickons [2012] FamCAFC 154 who noted that “…the requirements of the section are met by approaching the assessment of contributions holistically…” by analysing the contributions of all types and does not require “over-zealous” attention to the ascertainment of contributions nor the “the performance of a mathematical or accounting exercise.”
CONTRIBUTIONS
Initial contributions
Neither party had any substantial assets of significance at the commencement of the relationship.
The husband’s evidence is that each had a car of similar value, some nominal savings and some modest superannuation, about $40,000 in the husband’s case and $10,000 for the wife.
During the relationship
At the outset of the relationship, the parties earned relatively similar incomes, however the wife took time off for maternity leave to have the children and thereafter worked part-time. For the majority of the relationship the husband was the primary income earner and the wife the primary care giver and homemaker. As the wife said in her evidence, she was the “cleaner, driver, and shopper” and the husband was thus able to concentrate on his career. The wife says this enabled the husband to increase his earning capacity as his income is now substantially higher.
It appears common ground the parties were assisted in purchasing their first home by way of contributions from each of their families. It was not in dispute that the wife’s family contributed $81,835.67 in 2010. Although, I have determined the husband’s families contribution of $100,000 was a loan, due to the two mortgages, I therefore take into account that it appears unlikely they will be repaid this sum in full.
In addition, the husband’s mother gifted the parties $35,000 towards renovations of the Suburb F property. Although the wife gave evidence that she never saw any documentary evidence of same, she did not otherwise challenge this assertion in her cross-examination of the husband’s mother.
It was also agreed that wife received $33,000 from her Employer Superannuation Fund in Country O in 2015 and that most of this was used for landscaping and renovations work carried out at the Suburb F property.
Post-separation contributions
The wife remained living in the Suburb F property post-separation and the husband made some payments on the mortgage, although she says in her trial affidavit that the husband made three hardship arrangements over 18 months from 2022 to 2023, during which he made minimum or zero repayments.[2] In any event, as the husband gave no evidence as to the total quantum of these payments it is difficult to assess this contribution.
[2] Wife’s affidavit filed 7 June 2024 at [16] – [17].
In addition, the husband’s evidence was that he paid all of the mortgages and outgoings on the Suburb L property in full until the end of July 2022. However, during this period he also had the sole benefit of the rental from that property which was tenanted until mid-2022. The husband’s evidence is that the Suburb L property was originally rented for $380 per week in early 2020, however it is not known whether there were any rental increases. The husband says the monthly mortgage repayments were approximately $1,762 per month, which even on $380 per week would largely cover the mortgage.
Although the husband also had annual expenses of approximately $5,000 per year, he would also likely receive a tax break by way of negative gearing. Again, the nett impact of this was not quantified so I am left to speculate, however, it would not appear to be a significant contribution on his part.
I also note that the husband’s ability to make any additional post-separation contributions must be assessed in the light of the wife having contributed to that higher earning capacity.
The husband commenced paying child support in November 2023 (following orders for the children to live with the mother) and paid $14,303.68 between November 2023 and 31 May 2024. However, the husband claimed $3,356.04 for non-agency payments relating to court mandated counselling sessions for the child, Y, and for payments to M Bank of $2,961, which in effect meant that the wife made those payments.
The husband also raised in his submissions that the wife had failed to allow tradesmen into the Suburb F property to carry out repairs. It was not clear whether the husband raised this issue as a form of “wastage” on the wife’s part pursuant to Kowaliw & Kowaliw [1981] FamCA 70 (“Kowaliw”).
In any event the wife’s evidence was that she had allowed a few tradesmen into the property, but it was difficult to get them at a reasonable price. Furthermore, the parties were in dispute with the builder who performed renovations on the home, and it was the wife’s view that the builder ought to have conducted those repairs. However, even if I accept that the wife’s failure to allow tradesman into the property diminished the value and that this fell into the category of cases contemplated by Kowaliw, it is simply not possible on the evidence to assess what difference any such repairs would make to the value of the property.
Each of the parties raised issues of family violence in their evidence however again neither party submitted that the court should make an adjustment based on the principles set out in Kennon & Kennon [1997] FamCA 905 (“Kennon”). However, noting that the wife was self-represented and that she raised issues of family violence it is readily apparent on the material that if there were a Kennon argument it would favour the husband.
In his affidavit, the husband provides numerous examples of family violence committed by the wife over an extensive period of time. In addition, he attests to reporting the wife to police and child protection on approximately three occasions. The husband’s evidence, which was not disputed, was that the wife was charged following an incident with a knife and was ultimately ordered to attend an anger management course. However, he did not press a Kennon argument and accordingly I do not propose to factor this into my decision.
In assessing all of these contributions over the course of the lengthy relationship, and since the parties’ separation, without descending into some sort of mathematical exercise, I find that the contributions are more or less equal to both the non-superannuation and superannuation pools. It logically follows that if the wife contributed to the husband’s earning capacity, that the husband’s ability to accumulate superannuation flowed directly from this, including post-separation.
FACTORS UNDER SECTION 75(2) OF THE ACT
Section 75(2)(a)
The parties at time of trial are aged 48 and 53 years old respectively and there was no evidence they are in anything but good health.
Section 75(2)(b)
Neither party has any significant financial resources.
The property available for division is extremely modest and the superannuation insufficient to provide for either party upon retirement.
Neither party has re-partnered.
The main differential between the parties is that the husband earns about $110,000 per annum whilst the wife is currently unemployed and has been since mid-2022. I note the wife proposes to obtain employment so she can retain the home however there was no evidence about what employment she is likely to obtain and what she is likely to earn.
Sections 75(2)(c) – (e)
Furthermore, although the wife worked fulltime historically, she has never earned as much as the husband. The wife is also the uncontested primary carer of the children which may curtail her ability to work fulltime.
Curiously, the wife tendered a child support assessment on 6 November 2024 which states the husband has zero income estimate for 2024/2025. This will be reassessed at the end of the year based on his actual income, but in the meanwhile, the wife is left with very limited child support.
Sections 75(2)(j) and (k)
This sub-section of the Act requires the court to consider a party’s contributions to the future income, earning capacity and financial resources of the other party (not just to property as per sections 79 (4)(a) and (b) of the Act). The wife says, and I accept, that by staying home she enabled the husband to build up his income earning capacity into the future and that this in turn impacted the wife’s own earning capacity.
I note the comments made by the Full Court in Clauson & Clauson [1995] FamCA 10:
It has long been recognized that in most cases the most valuable ''asset'' which a party can take out of the marriage is a substantial, reliable, income-earning capacity: see Best and Best (1993) FLC 92-418 at 80,295.
In taking all of these factors into consideration it is my assessment that the wife should receive a fifteen percent adjustment in her favour for her “future needs.”
IS THE PERCENTAGE DIVISION JUST AND EQUITABLE?
Having completed the first three steps I am left with an assessment that the wife should receive a fifteen per cent adjustment of the pool.
The husband proposed that the court take a two-pool approach. The wife proposed a one pool approach, including the superannuation. I propose to apply the percentage to one pool. On the evidence the wife made an indirect but equal contribution to the superannuation pool. She is also unlikely to able to accumulate the same amount of superannuation going forward as the husband, due to a lower earning capacity.
Pursuant to Clauson, I must however consider the real effect in dollar terms. In this case if the wife is to receive 65 per cent of the non-superannuation pool and the husband 35 per cent, she must pay him $88,840.05 calculated as follows:
Husband
Total non-superannuation Asset pool: $399,403
35 per cent of total $139,791.05
Husband to retain:·Part property $38,951
·Car $12,000
Net total $50,951
$139,791,05 minus $50,951 Payment $88,840.05
Wife
Total non-superannuation Asset pool: $399,403
65 per cent of total $259,611.95
Wife to retain:·The Suburb F property $930,000
·Part property $38,951
·Car $10,000
Less:
·Mortgage ($276,397)
·Mortgage ($271,102)
·Repayment of loan to second and third respondent ($83,000)
·Payment to husband ($88,840.05)
$259,611.95
I find that in this approach, 65 per cent of the superannuation pool to the wife is calculated as follows:
Total superannuation $249,293
65 per cent of total superannuation $162,040.45
Less wife’s current balance $27,568$134,472.45
In all of the circumstances of this case, including that this is a modest pool, I find this is a just and equitable division between the parties.
FORM OF ORDERS
Determination
The wife seeks orders such that she receive a greater amount of her entitlement by way of cash rather than superannuation. However, both parties will need funds to rehouse themselves, so cash is important to both of them. Although the wife will have to rehouse the children, the husband will likewise require accommodation so they can spend time with him. Neither will be able to access much of their superannuation before retirement, which given their ages is some time away. I am not persuaded that it would be just and equitable to make the orders as sought by the wife.
Curiously the husband’s form of orders provided for the percentage to be applied only to the proceeds of sale of the home rather than the total non-superannuation asset pool. No submissions were made as to why the court should take this approach.
Accordingly, both the non-superannuation and superannuation pools shall be adjusted such that the wife receives 65 per cent of each pool.
The wife also wishes to retain the family home, however, she has provided no evidence she can refinance and pay out the husband. Whilst she asserted that she anticipates getting a job in the new year after the trial had concluded, there was no evidence to that effect. Nonetheless, the orders proposed by the husband and agreed to by his parents do not propose a sale of the Suburb F property until the middle of 2025. There is, therefore, no prejudice to the husband or his parents if the wife is given an opportunity to refinance so as to buy out the husband, and, neither the husband nor the husband’s parents objected to the default sale, provided that the timeline for the sale that they proposed was adhered too.
In order for the home to be transferred to the wife or sold, it is necessary for two caveats to be removed, those being caveats placed by Ms G, the wife’s former solicitor (with whom she is in litigation in the Supreme Court) and H Bank, which provided finance to the husband for these proceedings. To ensure this occurs, both parties agreed that $200,000 be put in trust pending the resolution of the Supreme Court litigation and that the husband be paid out $60,000 to repay H Bank. In the event the wife is able to keep the home, she will be required to first place $200,000 into the trust account and pay to the husband $60,000. The husband proposed that any remaining funds in the trust account after the Supreme Court litigation is finalised be divided in the same percentage terms, which is in keeping with my determination.
The husband also sought orders that provided for repairs and improvements to the property to ready it for sale. However, such an order is only likely to lead to further disputes between the parties as to what is required and how much should be spent, even with the guidance of a real estate agent. In the end, each party has a vested interest in maximising the value. For that reason, I propose to order the property be sold as is unless they the parties agree otherwise.
In regard to the contents of the home, the wife was clear that the husband could retain the items in the Suburb F property. I will make an order that the husband retain the items in the home, unless otherwise agreed and save for personal possessions of the wife.
The wife objected to being restrained from further encumbering the home however given the limited equity in that home, such a restraint is necessary to protect both the husband’s interests and his parent’s interests.
The husband also sought an order that the wife pay the mortgage repayments pending the sale of the home. The wife said she would only agree to this order if the husband paid child support. In circumstances where the wife asserts that she will get a job and be able to pay out the husband, she will be ordered to pay the mortgage payments pending the payment to the husband or the settlement of the sale of the home. If the husband fails to pay child support as assessed or the wife takes issue with the assessment, she has avenues to have these matters reviewed through the child support agency.
Finally, the husband sought orders giving him the authority to sign documents and to control the sale in the event the wife does not cooperate. I am not satisfied on the evidence that she will not cooperate with the sale. As such, I do not propose to make such an order but rather will make an order granting liberty to apply in the event there is a disagreement. For the same reason, I have made the proposed section 106A order a mutual order, in the event that either of the parties fails to comply with these orders.
For all of the aforementioned reasons I make the orders as set out at the commencement of this judgment.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 13 February 2025
ANNEXURE A
Description Ownership Value ASSETS 1. Property situated at E Street, Suburb F (“the Suburb F property”) Joint $930,000 2. 50% share of Sale Proceeds of the property situated at K Street, Suburb L (“the Suburb L property”). Husband $38,951 3. 50% share of Sale Proceeds of the property situated at K Street, Suburb L (“the Suburb L property”). Wife $38,951 4. Motor Vehicle 2 Wife $10,000 5. Motor Vehicle 1 Husband $12,000 Assets subtotal: $1,029,902 LIABILITIES 1. M Bank Home Loan Account ending #...00 (First Mortgage over Suburb F Property) Joint $276,397 2. M Bank Home Loan Account ending #...01 (Second Mortgage over Suburb F Property) Joint $271,102 3. Loan from Parents (Caveat lodged)
Joint 21.73% of net equity being $83,000 Liabilities subtotal: $630,499 SUPERANNUATION Name of Fund Type of interest Member Value 1. Brimmer Super Fund SMSF Husband $221,725 2. Brimmer Super Fund SMSF Wife $27,568 Superannuation subtotal $249,293 TOTAL (assets – liabilities) $399,403 TOTAL (assets – liabilities + superannuation) $648,696
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10
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