Bryson & Bryson
[2023] FedCFamC2F 997
•18 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bryson & Bryson [2023] FedCFamC2F 997
File number(s): CAC 1439 of 2021 Judgment of: JUDGE MANSFIELD Date of judgment: 18 August 2023 Catchwords: FAMILY LAW – PROPERTY – Final orders – Marriage of 26 years – Three adult children – Dispute as to value and treatment of real property situate in Country C – Dispute as to contributions, in particular, allegations of family violence – Wife’s allegations not supported by the evidence – Consequently, significant alterations to property of the parties in the wife’s favour not warranted – Final orders providing for an equal division of property. Legislation: Family Law Act 1975 (Cth) ss4AB, 75, 79, 90XT, 102NA
Family Law (Superannuation) Regulations 2001
Cases cited:
Britt & Britt (2017) FLC 93-764
Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143
Kennon & Kennon (1997) FLC 92-757
Kowaliw & Kowaliw (1981) FLC 91-092
Martell & Martell [2023] FedCFamC1A 71
Mullis & Quimby [2023] FedCFamC1A 16
Norbis v Norbis [1986] 10 FamLR 819
AJO & GRO [2005] FamCA 195
RE F Litigants in person Guidelines (2001) FLC 93-072
Stanford v Stanford [2012] HCA 52
Weir and Weir (1993) FLC 92-338
Division: Division 2 Family Law Number of paragraphs: 137 Date of last submission/s: 21 July 2023 Date of hearing: 20 & 21 July 2023 Place: Canberra Counsel for the Applicant: Mr Howard Solicitor for the Applicant: Hijazi Curran Cameron Lawyers Counsel for the Respondent: Mr Haddock Solicitor for the Respondent: SCB Legal Pty Ltd ORDERS
CAC 1439 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BRYSON
Applicant
AND: MS BRYSON
Respondent
ORDER MADE BY:
JUDGE MANSFIELD
DATE OF ORDER:
18 AUGUST 2023
PURSUANT TO PT VIII OF THE FAMILY LAW ACT 1975 (CTH), IT IS ORDERED THAT:
Transfer of the Suburb D Property
1.Within 60 days (‘Due Date’) from the date of these Orders, the Respondent is to do all acts and things and the parties are to sign all documents necessary for:
(a)The Applicant to transfer to the Respondent, at the expense of the Respondent (excluding the Applicant’s own incurred professional fees and disbursements associated with the transfer, including any PEXA fees), all of his right, title and interest in the property known as B Street, Suburb D in the City E, more particularly described as Block … Section … in Certificate of Title Volume … Folio … (‘the property’), and for this purpose:
(i)The Respondent shall engage a conveyancing solicitor for the purpose of effecting this transfer within 14 days of the date of these Orders and provide a copy of these Orders to the conveyancing solicitors.
(b)The Respondent shall refinance the joint Bank F mortgage into her sole name, and discharge the joint mortgage secured against the property (dealing number …) (“the Mortgage”);
(c)The Applicant and Respondent shall sign any such document as may be required to facilitate compliance with the above orders, including but not limited to any Transfer form or Mortgage Discharge form;
2.As from 21 July 2023, the Respondent shall pay all rates, insurances, mortgage repayments and any other property related expenses due and to become payable in respect of the property and shall indemnify the Applicant and keep the Applicant indemnified in respect of the same.
Default Sale Orders
3.If the Respondent fails to comply with Orders 1 and 2 by the Due Date, (‘default’), the parties shall do all things necessary to immediately effect the sale of the property (“the sale”) at the earliest possible date, and for this purpose:
(a)The Applicant is appointed as Trustee for the sale;
(b)The Applicant shall be solely responsible for the conduct of the sale of the Suburb D property up to and including settlement and is hereby authorised to sign any such documents that would usually be required to be signed by both parties;
(c)The Respondent shall vacate the Suburb D property within 30 days from the date of default and the Respondent shall leave the property in a clean and tidy fashion and in a good state of repair;
(d)From the date the Respondent is required to vacate the property the Respondent, her servants or agents, be and are hereby restrained from attending upon the property;
(e)The Applicant is at liberty to engage services required to clean and repair the property if required, so that it is presentable for sale, and any costs to do so shall be paid by the Applicant in the first instance, and then reimbursed to the Applicant from the proceeds of sale prior to any distribution of the residual funds;
(f)The parties are to enter into an Agency Agreement with Ms G of H Company, within 14 days of default, and the property is to be listed for auction within 60 days of entering the Agency Agreement;
(g)The parties shall engage a conveyancing solicitor as recommended by Ms G within 7 days of entering the Agency Agreement to act on the parties’ behalf in respect to the sale;
(h)The listing or reserve price shall be agreed in writing, failing agreement the listing or reserve price shall be nominated by the Applicant in consultation with Ms G;
(i)The sale price is to be agreed between the parties, failing agreement, as nominated by the Applicant;
(j)Upon settlement of the sale of the property, the proceeds of sale are to be distributed, in the following manner and priority:
(i)firstly, to pay all costs and commissions of the sale, including marketing costs, auction fees and conveyancing solicitor fees;
(ii)secondly, to pay any outstanding rates and taxes;
(iii)thirdly, to pay all monies necessary to discharge the Bank F loan secured by way of mortgage dealing number … over the Suburb D property;
(iv)fourthly, to reimburse the Applicant any costs/monies paid by him in cleaning and preparing the property for sale;
(v)Fifthly, to reimburse the Applicant the Respondent’s half share of costs associated with the first J Company Valuation ordered by the Court;
(vi)Lastly, the balance to the Respondent.
4.In circumstances where the Respondent fails to vacate the property within the specified timeframe, the Applicant is at liberty to relist this matter on an urgent basis seeking orders for the Respondent’s removal from the property.
5.In circumstances whereby the Respondent vacates the property leaving items of furniture, furnishings or personal belongings at the property, the Applicant is at liberty to dispose of such items.
Other Assets & Liabilities
6.That within 30 days of the publication of these Orders the parties do all acts and things and sign all necessary documents for the Applicant to transfer to the Respondent all his right title and interest in Motor Vehicle 1.
7.That within 7 days from the date of these Orders, the Respondent shall make available to the Applicant via her lawyers the following items:
(a)The jewellery that the Applicant’s late mother left to him;
(b)The framed pictures of the applicant’s family;
(c)The Applicant’s photo albums;
(d)Copies of the Marriage Certificates of the Applicant and other important documents
(e)The Applicant’s camera and its charger;
(f)The binoculars given to the Applicant;
(g)Crockery given to the Applicant as a present;
(h)The Applicant’s new shirt; and
(i)The Applicant’s silk tie.
8.Unless otherwise provided for in these Orders, the Applicant shall retain for his sole use and benefit, absolutely free from any further claim or demand of the Respondent, the following items of property:
(a)any property/resource located in Country C in which he holds an interest;
(b)the balance of any funds held in any bank account in his sole name;
(c)Motor Vehicle 2;
(d)furniture and contents in his name possession or control;
(e)his superannuation entitlements;
(f)Any other item in his name, possession or control.
9.The Applicant shall be solely liable for and indemnify the Respondent in relation to all liabilities of whatsoever nature and kind in his sole name and in relation to any item of property the Applicant retains pursuant to these Orders.
10.Unless otherwise provided for in these Orders, the Respondent shall retain for her sole use and benefit, absolutely free from any further claim or demand of the Applicant, the following items of property:
(a)Any property/resource located in Country C in which she holds an interest;
(b)the balance of any funds held in any bank account in her sole name;
(c)Motor Vehicle 2 purchased by the Respondent post separation;
(d)her superannuation entitlements;
(e)furniture, contents or jewellery in her name, possession or control.
11.The Respondent Wife shall be solely liable for and indemnify the Applicant Husband in relation to all liabilities of whatsoever nature and kind in her sole name and in relation to any item of property the Respondent Wife retains pursuant to these Orders.
12.That in the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these Orders, and Order 3(a) and (b) are insufficient, the Registrar of the Federal Circuit and Family Court of Australia at Canberra shall be appointed pursuant to Section 106A of the Family Law Act (Cth) 1975, to execute such deed or instrument in the name of the refusing party and do all acts and things necessary to give validity to the operation of the deed or instrument.
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 MANSFIELD:
INTRODUCTION
The parties are from Country C where they married in 1994 when the husband was 33 years old and the wife was 28 years old. They migrated to Australia in 1999 where after they worked, raised three sons who are now adults and accumulated assets being equity in the former family home and respective superannuation entitlements. They separated in 2020. It was a marriage of 26 years. The applicant husband is 62 years old. The respondent wife is 57 years old.
The parties are in dispute as to the value and treatment of real property situate in Country C and the value of the former family home (“the Suburb D property”). The husband seeks to end the financial relationship between the parties by way of an equal division of the property of the marriage. The husband denies the wife’s allegations of family violence. The wife says that due to the family violence inflicted upon her throughout the marriage and its ramifications upon her physical and mental health, there should be very significant alterations to the property of the parties in her favour.
In all the circumstances, it is just and equitable for the orders providing for an equal division of the property of the marriage whereby the parties retain all of their respective superannuation entitlements and the wife obtains all of the benefit of the equity in the former family home.
ORDERS SOUGHT
By her Amended Response of 6 July 2023, the wife sought final orders which include that:
(a)The wife obtain sole title to the Suburb D property;
(b)The husband pay to the wife $512,000 (which includes discharge of the loan secured by mortgage over the Suburb D property);
(c)The husband deliver up a long list of variously described chattels;
(d)The husband transfer title to two real properties situate in Country C (and the husband retain title to four real properties situate in Country C);
(e)The wife retain all of her superannuation interests and obtain all of the husband’s superannuation interests.
The wife did not seek orders, nor made submissions, for any division of interests based on percentages. Her position was that the value of the husband’s properties in Country C is sufficient to provide for all of the orders that she is seeking.
By his Minute of Orders Sought of 19 July 2023, the husband sought final orders which include that:
(a)The wife obtain sole title to the Suburb D property;
(b)The wife refinance the existing loan that is in joint names secured by mortgage over the Suburb D property;
(c)The wife indemnify and keep indemnified the husband in relation to the Suburb D property;
(d)In default of refinancing, the Suburb D property be sold and the net sale proceeds be disbursed to the wife;
(e)The wife retain a vehicle, the husband retain a vehicle and the wife obtain a third vehicle;
(f)The wife deliver up a long list of chattels;
(g)Each party retains their own superannuation interests.
In the alternative, the husband sought final orders which include that:
(a)The wife obtain sole title to the Suburb D property;
(b)The wife refinance the existing loan that is in joint names secured by mortgage over the Suburb D property;
(c)The wife pay to the husband $409,830;
(d)The wife indemnify and keep indemnified the husband in relation to the Suburb D property;
(e)In default of refinancing, the Suburb D property be sold and the net sale proceeds be divided equally between the parties;
(f)There be a superannuation splitting order using a base amount of $297,193 in the favour of the wife;
(g)The wife deliver up a long list of chattels.
By his Case Outline filed 14 July 2023, the husband contended that the contributions be assessed as to 50-55 per cent in his favour and there be no adjustment for future needs such that there be an overall division of 50 / 50.
ISSUES
The issues for determination are:
(a)The value and treatment of real property situate in Country C;
(b)The value of the Suburb D property;
(c)Other lesser items in the balance sheet;
(d)Assessment of contributions including consideration of family violence;
(e)The matters referred to in sub-section 75(2) of the Family Law Act 1975 (“the Act”);
(f)What alteration of the parties interests in the property of the marriage or either of them is just and equitable.
BACKGROUND
The applicant husband is 62 years old. The respondent wife is 57 years old. The parties are from Country C where they met in 1992 and married in 1994 when the husband was 33 years old and the wife was 28 years old. Children of the parties were born in 1996 and 1999. In 1999 the family migrated to Australia.
In 2002, the parties purchased and lived in a property in Town K, Qld. In 2003, a third child of the marriage was born. In 2006, the parties sold and bought another property in Town K, then sold it and moved to City E. In 2008, the parties bought land at B Street, Suburb D and built a residence which they began living at in 2009. This is the former family home in which the wife remains living in (“the Suburb D property”).
The parties separated on 6 October 2020 after an argument and the wife obtaining an interim family violence order prohibiting the husband from being at the home.
On 7 July 2021, the husband commenced these proceedings. The parties became divorced in Australia in early 2022 and in Country C in mid-2023. Both divorce application were contested by the wife.
The husband deposed:
[Ms Bryson] and I shared a loving relationship in the early years of our marriage. Our relationship became more and more strained over time due to [Ms Bryson]'s behaviour. Whilst [Ms Bryson] may be offended with this classification, she [has a mental health disorder], and her condition has worsened over time. I encouraged [Ms Bryson] to attend upon a psychologist on numerous occasions, however she refused.
I attempted to emotionally and logistically manage this aspect of our lives over time, however, by the end of our relationship our home was near unliveable [due to her mental health disorder] and [Ms Bryson] would, without consulting with me, spend thousands of dollars on items we did not need, things that we did not have the room for.
During closing submissions, the wife submitted:
I cannot believe I was married to that. I cannot believe 30 years of my life, and the rest, is gone because of that. I will speak up. I will not be scared. It doesn’t matter if I die today or tomorrow. He took the best years of my life and his own children’s life because of his violence.
THE HEARING
The wife had representation during the proceedings but became self-represented on 16 February 2023. On 24 February 2023, the Court recognised that the provisions of section 102NA(1)(c)(ii) of the Act apply to these proceedings such that the wife is precluded from personally cross-examining the husband. The wife was ordered to apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme to obtain legal representation at the final hearing. At the commencement of the hearing counsel for the wife made clear that his brief was limited to the extent of preliminaries (dealing with objections to parts of affidavits) and cross-examination of the applicant husband where after he would be seeking leave to withdraw. He confirmed that had been discussed with the wife and the wife confirmed her understanding of the situation. The wife was therefore self-represented for the balance of the hearing.
Extensive explanation of the trial process was provided to the wife following the withdrawal of her legal representatives at the conclusion of the husband’s cross examination and throughout the hearing to ensure as far as possible that procedural fairness was afforded to all parties whether represented or appearing in person in order to ensure a fair trial (see Re F: Litigants in person Guidelines (2001) FLC 93-072, Guideline 1 at [253]). I explained the functions of all the parts of the trial and emphasised closing submissions as the opportunity for the wife to explain why I should make the Orders she is seeking.
On the first day of hearing the husband gave evidence and was cross-examined and the wife gave evidence and was cross-examined. On the second day of hearing the jointly appointed valuer, Mr L, was interposed, gave evidence and was cross-examined. The cross examination of the wife continued following Mr L’s evidence. The wife was recalled for re-examination and the parties made closing submissions.
The following material was received into evidence during the trial:
(a)Affidavit of Mr Bryson filed 17 April 2023 (‘Exhibit A1’);
(b)Affidavit of Mr Bryson filed 14 April 2023 (‘Exhibit A2’);
(c)Financial Statement of the husband filed 17 April 2023 (‘Exhibit A3’);
(d)Documents produced under subpoena by M Authority totalling 11 pages (‘Exhibit A4’);
(e)Super Fund 1 statement at 21 December 2020 (‘Exhibit A5’);
(f)Text messages from Bank F dated 18 July 2023 (‘Exhibit A6’);
(g)Payslip of the wife dated 29 March 2023 (‘Exhibit A7’);
(h)Minute of Orders sought by the husband dated 19 July 2023 (‘Exhibit A8’);
(i)Affidavit of Ms Bryson filed 6 July 2023 (‘Exhibit R1’)
(j)Financial Statement of the wife filed 13 July 2023 (‘Exhibit R2’);
(k)Bundle of documents produced by M Authority (‘Exhibit R3’);
(l)Affidavit of the single expert witness Mr L 20 July 2023 (‘Exhibit C1’); and
(m)Balance Sheet as settled in Court (‘Exhibit C2’).
Other material referred to and relied upon by the applicant husband was:
(a)Case Outline document filed 14 July 2023.
Other material referred to and relied upon by the respondent wife was:
(a)Amended Response to Initiating Application filed 6 July 2023.
There was a large amount of material in this case produced by the parties which I have read and had regard. It is not necessary to make explicit findings on each disputed piece of evidence and I do not do so. In the circumstances where there are so many disputed facts of varying degrees of significance, I have considered and evaluated all of the evidence relative to the issues of significance in these proceedings. If I have not referred to a particular fact or matter it does not follow that I have not had regard to it. Likewise, where I have referred to a particular fact or matter, it does not follow that I have had regard to that fact or matter only in reasoning a finding.
The husband’s evidence generally
The husband was a credible witness. My impression was that his evidence in chief by affidavit and also from the witness box under cross-examination was straightforward and whole, including concessions and aspects adverse to his interests.
In plain terms, my understanding of the outcomes the husband was seeking in his case was to:
(a)Obtain the specified items of sentimental value to him; and
(b)End the financial relationship between the parties by way of an equal division of the property of the marriage provided that he is indemnified by the wife in relation to all liabilities arising from the Suburb D property if the wife can manage to refinance it.
The wife’s evidence generally
The wife’s evidence in chief is an abundance of baldly stated claims. As one example, the wife deposes that:
My family contributed financially assisting [Mr Bryson] and me from 1994 to 2019. My family gave cash to [Mr Bryson] and me, and our sons and on numerous occasions, my father gave [Mr Bryson] large sums of money including to buy plane tickets so that we could move to Australia. [Mr Bryson] never repaid any of these funds to my family. … In total, the monies that were provided by my family to us are more than 300 million [Country C currency]. That money spent in [Country C] would be the equivalent of spending Australian dollars in Australia … At no point was any money provided to my bank account. They instead gave the money directly to us.
For the purpose of this hearing, I take judicial notice that one Australian dollar buys up to 100 Country C currency which would put the amount given, not by bank transfer, but “directly to us” in the order of $3M AUD in cash. The wife deposes further that her family's non-financial contribution amounts to about $200 million Country C ($2M AUD). There is no direct or indirect evidence to support these extraordinary claims. Nor are there are any circumstances or indications in the lives of the parties that remotely suggest the use or existence of such sums.
I take into account that the wife was self-represented for the preparation of her trial affidavit. I take into account that the issues she sought to pursue could have been more elegantly stated. Nevertheless, what is notably absent from the wife’s case is material that tends to corroborate her version of events. Further, where third party material does exist, it obscures or tends to disprove the wife’s version of events. For example, the police records at Exhibits A4 and R3.
Also notably lacking from the wife’s case are particulars. Particulars as to dates and times and the circumstances of alleged events are scarce. These is an absence of details about the many and valuable items that the wife says were taken or kept by the husband. For example, an Order that she seeks is that “the husband is to return all personal belongings and property to the wife including documents, books, pictures, jewellery, and important documents.” At hearing, the wife was unwilling or unable to further or better particularise these items in any meaningful way.
Whilst I suspect that it may have been a strategic decision in the context of not backing down at trial, the wife’s evidence under cross-examination was poor. She presented only as adversarial, defensive and disagreeable. She was unwilling to entertain even the possibility of alternative versions or explanations for events and attempts to explore the evidence led to some plainly incredulous evidence from the wife. She was unwilling to concede anything that tended to be contrary to her case. She would not follow directions to contain her answers to be responsive to the questions asked.
In plain terms, my understanding of the wife’s position in this case was that due to the family violence inflicted upon her throughout the marriage and its ramifications upon her physical and mental health, she should have the Suburb D property unencumbered, all of the parties’ superannuation entitlements to afford her an income, all of the parties’ chattels, and the husband should have nothing. She says this can all be afforded by somehow utilising the husband’s properties in Country C.
LEGAL PRINCIPLES
These are property settlement proceedings in relation to the property of the parties to a marriage or either of them.
Section 79 of the Act relevantly provides for the Court to make such orders as it considers appropriate altering the parties’ interests in the property of the parties to the marriage or either of them. Sub-section 79(2) mandates that the court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Sub-section 79(4) sets out the matters the court is to take into account when considering what order (if any) should be made under this section in property settlement proceedings.
Section 81 provides that the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.
In its examination of the operation of s 79, the High Court in Stanford v Stanford [2012] HCA 52 [at 35-42] determined that:
In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order. Three fundamental propositions must not be obscured.
First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.
Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion.
Third, whether making a property settlement order is "just and equitable" is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised in accordance with legal principles, including the principles which the Act itself lays down.
Further, [at 42]:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
How the Court approaches allegations of family violence
In Kennon & Kennon (1997) FLC 92-757, the Full Court determined [at 84,294 – 84,295] that a trial judge is entitled to take family violence into account when assessing the parties’ contributions pursuant to s 79 of the Act if there is a course of violent conduct by one party towards the other which occurs during the marriage and which is demonstrated to have either:
a)had a significant adverse impact on that party’s contributions to the marriage or
b)to have made that party’s contributions significantly more arduous that they ought to have been.
The Full Court at that time was cautious to state that the principles ought only apply to ‘exceptional cases’ or ‘a relatively narrow band of cases.’
In Britt & Britt (2017) FLC 93-764, the Full Court determined that, in addition to being relevant to a decision as to a Kennon adjustment of contributions, evidence as to family violence can be relevant to:
(a)provide context to other evidence;
(b)provide evidence as to the relationship in existence between the parties, which may explain other actions taken by the parties in their financial relationship or their relationship generally;
(c)the credibility of each party; and
(d)the fact that a party expresses a conclusion in an affidavit does not render that evidence inadmissible, but rather, it is relevant as to weight.
In Martell & Martell [2023] FedCFamC1A 71, Aldridge J in the Appellate Jurisdiction of Division 1 of the FCFCOA, after recognising the unfortunate prevalence of family violence, found the terms “exceptional” and “narrow” form the basis of the principle itself which focuses on the nature and quality of the contributions, rather than operating as qualifying adjectives to limit the cases to which the principles apply. He stated:
24. For the reasons given, the words “significantly” and “more arduous” are not to be read as coterminous with “exceptional”. Rather, they arise from the basis of the principle itself which focuses on contributions. If the nature and extent of a person’s contributions are made more difficult or harder so that they should be accorded greater weight, such that they should be taken into account in the determining of the outcome, they have therefore been “significantly impacted” or made “more arduous”. The focus is not on the conduct per se, but on its effects on contributions.
25. The threshold for recognition is therefore met by conduct which has a discernible effect on the contributions of the other party such that it should be recognised in determining the respective contributions of the parties.
THE BALANCE SHEET
The process of identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties to property of the marriage or either of them is by way of compilation of a balance sheet.
The assets and liabilities as asserted by the parties are at Annexure A in Columns A to E. Determination of the line items not agreed are as follows.
Real properties in Country C
It is not in dispute that the husband has an interest in six real properties in Country C. The husband deposes to them as follows:
40. …. Prior to our relationship and in approximately 1993, [I] inherited from my father an interest in land in [Country C] along with my sisters. The land is held in my name, though my sisters hold an interest pursuant to [Country C] customary law.
41. The land consists of separate small parcels of land. There is no road access to the land, except for one parcel, which has access but cannot be built on as it holds the graves of my parents. There is a dilapidated building on one of the parcels of land.
42. The blocks are rural, some have not been cleared, and I say that they hold little monetary value. My family in [Country C] use the land for modest farming purposes. The land has sentimental value as historically the land has been held by my family for many years. The requirement in [Country C], is that the land will be passed to the next generation of male descendants. I receive no income from the land nor am I able to sell the land. I say I effectively hold my interest 'on trust' for my siblings who live in [Country C]. I will not receive any cash adjustment in exchange for my interest.
43. In the event of my passing, pursuant to customary law in [Country C], the land will pass to my three children. However, if they do not want to hold this land, the land will pass to my older sister who married [a family member] and who continues to hold our family name. In the event of her passing, the land will then pass to her male children. The property will only pass to family that have the same last name. I am willing to bequeath my interest in this land to my three children in my Will, if this assists with reaching an outcome.
44. I do not intend to return to [Country C]. Approximately two years ago, I published an article which was critical of the [Country C] regime. The [Country C] government does not support freedom of political speech. I am concerned that as a consequence of expressing this opinion publicly, I may be arrested by [Country C] authorities if I returned. I understand the [Country C] government have been made aware of this publication.
Whether or not the wife holds an interest in land in Country C is in issue. The husband deposes:
56. [Ms Bryson] also holds an interest in land in [Country C]. This interest was inherited by her and her four siblings approximately [8] years ago. The property has a number of buildings including a house, is a functioning and profitable [farm].
62. [Ms Bryson] also has a family home in [Town N, Country C] in a separate area, which she holds an interest in.
The wife deposed:
93. I do not own any property in [Country C], nor have I received property from my father's inheritance.
94. I further deny that I receive $250,000 per annum from the [farm] that belonged to my late father and that my family deposits money into my overseas account.
In the absence of agreement to the appointment of a single expert, on the husband’s application which was contested by the wife, orders were made on 21 March 2023 and 19 April 2023 setting out a process for the parties’ property interests in Country C to be valued.
The husband deposes:
53. On 19 April 2023, I am advised that [my] Lawyers received a further email from the [Ms Bryson], which attached an email and letter that she had purportedly sent to various Australian Federal Ministers as well as an [City E] Minister. The subject line of the email was: " [Mr Bryson]- a dual Australian [Country C] Citizen about to Cause an International Incident". I have read the letter and I note that the letter includes the following statement:
My brother has the authority to shoot anyone who gets near the [farm] like everyone who works there. It is a risky place. If anyone gets hurt, who is going to be responsible? Definitely not my brother, things do not work like here. Me? Not at all. But I maybe blamed and so I will not engage in anything that is illegal in the first place, something that would cause issues to both countries and as such an international incident. The story may be published in the newspapers, complaints may go to the Consular in [Country O] that also deals with [Country C], and the media here and there will be contacted. [Emphasis added]
55. As a consequence of the contents of the correspondence from [Ms Bryson], referred to in the previous paragraphs, [P Lawyers], on my instructions, did not send the joint letter of instructions to the [Country C] valuer, due to having safety concerns for the valuer.
Accordingly, the only fact that is able to be ascertained from the evidence is that there are approximately five separate small parcels of land in Country C that the husband holds an interest in. Added to that fact, both parties in their respective closing submissions explicitly confirmed that there was no evidence of any monies moving to or from the parties in relation to any property in Country C at any time over the course of the past 29 years. I infer from that fact that there is no such evidence in existence.
I also take into account:
(a)The husband’s considerable and exhaustive efforts to put credible evidence before the court;
(b)The wife’s obstruction to the husband’s efforts;
(c)The husband’s evidence, which I accept, that he has no intention or reason to return to Country C.
The evidence and circumstances are consistent with the husband’s contention that he holds an interest in the properties which has no realisable value. There is no evidence at all in support of the wife’s contention that the husband’s interests ought to be valued at $2,453,666 Australian dollars. Neither is there any indirect or circumstantial evidence of value. Accordingly, no value is accorded to the husband’s interests in the land in Country C.
The husband’s pursuit of evidence with respect to any interests the wife may have in property in Country C seems to have been abandoned after the collapse brought on by the wife in obtaining the valuation. There is insufficient evidence to determine what, if any, interests the wife has or what, if any, value those interests have. Accordingly, no value is accorded to whatever the wife’s interests in property in Country C may be.
The Suburb D property
A single expert report under affidavit was received into evidence. The expert valued the property at $1,090,000 using a “Direct Comparison supported by Summation” valuation approach. The husband accepted the expert’s opinion. The wife did not. She took issue with two aspects: i) that the value was too high relative to her own enquiries about the market and the fall in property values particularly in Suburb D, and ii) not accounting for the cost to repair damage to walls being either patched holes or unpatched holes.
The report describes the condition and repair of the internal and external condition as “satisfactory.” The primary limitation to the report is that the expert was unable to access the lounge room, fifth bedroom/study or the garage due to personal belongings being stored and the condition of those rooms was assumed to be as reflected by the condition of the other areas.
Under cross-examination by counsel for the husband, the expert confirmed that the valuation was done on an “as is” basis being as the property presented on the day and excluding any personal contents or items. The expert confirmed that he was not able to access the lounge room and the fifth bedroom because of stacked boxes blocking passage into those rooms. He referred to photos in his report depicting same.
Under cross-examination by the wife, the expert gave further evidence:
(a)That ‘fair wear and tear’ meant taking into account the property was 14 years old and at various states of maintenance;
(b)That his inspection encompassed observing the overall condition of the property and not a structural inspection;
(c)About the sources of data he took into account;
(d)Why the decrease in value was only $10,000 in one year from $1,100,000 [in] 2022 (from a previous valuation) to $1,090,000 [in] 2023 to which the expert referred to section 3.2 of his report – Local Market Overview;
(e)The two holes in the walls that he saw and took into account.
I find the single expert report is sound and the conclusion reached therein as to the value of the Suburb D property is reliable. There is no basis (or method) in the evidence to reduce the value. There is no evidence in support of the wife’s contention that the property ought to be valued at $850,000. Accordingly, the Suburb D property is determined to be valued at $1,090,000.
Though not really a balance sheet item, it is convenient to refer here to the payment sought by the wife in her proposed final orders being $512,000. The amount was arrived at by the wife as $312,000 to discharge the loan secured by mortgage over the Suburb D property, plus $200,000 for compensation or provision towards building damage said to be caused by the husband.
At Annexure H of the wife’s affidavit is some correspondence from November 2021 to April 2023 with presumably a builder along with ‘pictures of holes in walls and doors.’ The list of works looks more like a wish list of upgrades. This evidence does not support the wife’s claims that there is $200,000 worth of damage or that any of the works are referrable to the husband. To the extent that the wife’s claim to the extent of $200,000 may have amounted to a kind of damage or waste addback it is rejected.
The motor vehicles
The husband contended the Motor Vehicle 2 in his name and possession was valued at $20,000. The wife contended its value to be $15,000. The husband was content for it to be valued at $17,500, the wife was not. In the absence of evidence either way the value is determined to be $17,500.
The husband contended Motor Vehicle 3 in the wife’s name and possession was valued at $35,150. The wife contended its value to be $30,000. The husband was content for it to be valued at $30,000.
The husband contended the unregistered and uninsured Motor Vehicle 1 in joint names and the wife’s possession and parked at the Suburb D property was valued at $2,500. The wife contended its value to be $500. The husband was content for it to be valued at $500.
Jewellery
The husband deposed that “Each year we would also spend a few thousand dollars on gold and jewellery as an 'investment'. These items total approximately $50,000 and have remained in [Ms Bryson]'s possession. I understand she claims the jewellery has been ‘stolen’.” The husband contends that jointly owned jewellery ought to be a line item in the balance sheet at $51,570.
The wife deposed that “Between 2017 and 2020, I collected a large number of collectibles, [and] jewellery. It is impossible to estimate the value as a large number of pieces were rare. After [Mr Bryson] was removed from the matrimonial home, I returned home from work and noticed that items had been thrown outside in order to obtain access to the backdoor of the property. Upon searching the property, I noticed that the title deed of the property was missing, which [Mr Bryson] now has in his possession, and that a large amount of jewellery was missing from the house. As such, I alerted the police and neighbours and have since installed security cameras.”
That the wife reported allegations of burglaries to the police was supported by police records produced under subpoena. Those records also prove that the wife could not or would not provide particulars of the items allegedly stolen and that there was insufficient evidence to support the allegation that the husband had attended the property.
I am satisfied that the parties obtained jewellery during the relationship. I find that the husband did not take it with him when he left the home in October 2020 nor was it made available for him to collect in the company of the police during his one visit to the home since leaving. I do not find the allegations of the wife that the husband has stolen it and now possess it as credible. I have considered that it may have been lost by the wife, or the reasonable likelihood that it is still within the house in a location unbeknownst to the wife – a circumstance which she said to the police was possible. I am not satisfied that it is no longer in the wife’s possession. The best available evidence is that of the husband such that it is determined that jointly owned jewellery ought to be a line item in the balance sheet at $51,570 which he does not possess or have the benefit of but, on the balance of probabilities, the wife does.
Home contents
The husband proposed home contents be $20,000 and evenly split. The wife said that she would accept $40,000 from the husband and that he would need to come and collect “the junk.” She otherwise did not agree to there being $10,000 each and said that the value of the contents in her home is $5,000. The wife’s position is inherently irreconcilable. In the absence of any other evidence, the husband’s proposal is rational, reasonable and preferred.
Bank accounts
The bank accounts are nominal and obtained post separation. They have been disregarded.
Items lost, stolen, damaged
This line item was added by the wife with the words “hard to estimate” in the space provided for the value. It is consistent with her allegations that the husband has been breaking into or accessing her property without her knowledge or permission and removing items. No particulars of any items were provided. No value has been accorded to this item.
Mortgage
The balance of the loan account secured by mortgage over the Suburb D property was agreed.
All other liabilities
The husband averred to a lack of evidence in support of the wife’s liabilities, in particular her credit card at $18,000. There was also evidence that some of the husband’s personal loan included legal fees. Nevertheless, except for the loan in the wife’s sole name that is secured by Motor Vehicle 3, the husband contended that all liabilities be disregard as they were all acquired post separation. This operates to the benefit of the wife by $24,658 (being $50,553 of the husband’s liabilities disregarded versus $25,895 of the wife’s liabilities disregarded). I accept the approach contended for by the husband.
Superannuation
There is no evidence of valuation for family law purposes pursuant to the Family Law (Superannuation) Regulations 2001. Counsel for the husband confirmed that had not occurred, that both parties entitlements were in accumulation funds and that the values were agreed. On that basis I proceed on the agreed values. I note that this means a splitting order cannot be made at this stage pursuant to s 90XT(2) of the Act.
Addback
The husband deposes that on 7 October 2020 (the day after separation and her obtaining of an interim Family Violence Order) the wife drew down $39,906.53 from the jointly held home loan account by transferring it to an account in her sole name. The home loan statement proves the transaction occurred. Contemporaneously, via his solicitor, the husband sought the return of the funds. The funds have never been returned.
The extent of the wife’s evidence was:
83. A lawyer that was representing me after the separation, knowing that I was unwell and only had a casual job, suggested that I transfer money to help with my sons and to ensure that I was financially stable. As such, I transferred $39,000, which I used to buy some furniture. These funds assisted me in being able to provide for my sons and myself. I gave money to the boys even when they were with [Mr Bryson].
Under cross-examination, the wife conceded transferring the funds without the husband’s consent. She could not or would not give any details about the expenditure of that money. She conceded that the items of furniture were within the $5,000 of home contents.
The husband deposed:
I have asked [Ms Bryson]'s former solicitors, via written correspondence from my lawyers on numerous occasions for evidence documenting that the $40,000 has been quarantined. [Ms Bryson] has failed to provide the relevant disclosure. [In early] 2023, [Ms Bryson] provided [Bank F] statements for accounts #...61 and #...16. I understand she has numerous other accounts which she has failed to disclose, including accounts evidenced as linked or associated with #...61 and #...16 and accounts with ANZ.
Whether to add back an amount is always a discretionary decision. The courts have emphasised time and time again that add-backs are the exception and not the rule. In AJO & GRO [2005] FamCA 195 the Full Court of the Family Court identified three types of add-backs that are commonly encountered. Only one of those categories is applicable to this case being in the circumstances outlined by Baker J in Kowaliw & Kowaliw (1981) FLC 91-092 at 76,644, including:
(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.
I have also had regard to the two-step process set out by the full court in Weir and Weir (1993) FLC 92-338 to “avoid providing a charter for fraud in proceedings of this nature.” Once it is established that there has been “deliberate non-disclosure” then “the Court should not be unduly cautious about making findings in favour of the innocent party.”
In relation to the add-back contended for by the husband and opposed by the wife, I find as follows:
(a)The wife unilaterally reduced the value of the matrimonial assets by $39,906.53 to her sole benefit.
(b)The wife has not provided any proper explanation to her use of those funds. She has not established that they were used on reasonably incurred necessary living expenses.
(c)The transactions that she deposes to in relation to the expenditure of those funds would have yielded ample documentation in her support of her explanations. Provision of a bank statement may well have been sufficient.
(d)I am satisfied that the wife’s non-disclosure is deliberate and I should not be unduly cautious about making findings in favour of the husband on this issue.
It is appropriate to exercise my discretion to permit an addback of $39,906.53, attributable to the wife, for the reduction of the matrimonial assets in the circumstances of this case.
I consider that dealing with the husband’s contention in relation to the addback could alternatively have been dealt with pursuant to s 75(2)(o) as a fact or circumstance which, in my view, the justice of the case requires to be taken into account. To the extent of choosing to deal with it as a question of an addback compared to under s 75(2)(o), the factors leaning towards addback include that it was real money that was taken by the wife and remains in issue, that is how the parties sought to deal with the issue at trial, and in my view is able to better demonstrate the doing of justice as between the parties. If I was wrong as to those facts and circumstance being properly dealt with as addbacks, I do not consider that the alternative pathway pursuant to s 75(2)(o) would have made any difference to the overall effect.
Determinations
The values and respective interests as determined are at Annexure A in Columns F, G and H.
HAS THE POWER TO MAKE A PROPERTY SETTLEMENT ORDER BEEN ENLIVENED
Having regard to:
(a)The existing legal and equitable interests of the parties in the property identified as property of the parties to a marriage or either of them; and
(b)The husband and wife are no longer living in a marital relationship; and
(c)There is no longer the common use of property by the husband and wife; and
(d)The express and implicit assumptions that underpinned the existing property arrangements, including the assumption that any adjustment to those interests could be effected consensually as needed or desired, have been brought to an end.
I am satisfied that, in all the circumstances, it is just and equitable to make a property settlement order. What order, if any, is then to be determined by applying s 79(4) of the Act.
CONTRIBUTIONS
Financial contributions
Neither party had any liabilities or assets of any significance at the commencement of their relationship or by their arrival in Australia.
The wife did not speak English upon migrating to Australia in 1999. In 2000, she studied English. In 2001, she completed a certificate of study. From late 2002 to early 2003, she worked at Q Company until Mr W was born. From 2004 to 2005, she undertook a course of study. In 2006, she worked for R Authority.
Upon moving to City E, from 2007 to 2014 the wife says she worked full time as a professional. The husband says she had ad hoc and contract employment which was relatively inconsistent and not highly paid. It is not clear on the wife’s evidence what her employment situation was between 2014 and late 2022 when she joined the S Authority.
The husband maintained full time employment throughout the relationship in various roles.
The wife has had sole occupation of the Suburb D property since separation. The photos of the property and from within it that are attached to the husband’s affidavit and the valuation report are evidence that the wife has not attended to reasonable maintenance and upkeep. There is no evidence as to what monetary effect that has had on the value which has otherwise been preserved since separation. The wife has been making the loan repayments for the Suburb D property since late 2020. Mortgage payments are $1,124.31 per fortnight. Whereas the husband pays $620 per week in rent.
Non-financial contributions
Except for the wife’s allegations of family violence, the parties’ respective non-financial contributions do not feature significantly in this case. Both parties describe circumstances where they attended to more of the duties associated with the welfare of the children, the family and the household than the other.
There were three children raised during the marriage. The husband worked fulltime throughout the marriage. The reality is that the wife was more likely to have attended to the welfare of the family, particularly in the earlier years. There is no basis for an adjustment attributable to non-financial contributions.
Family violence
The wife deposes that:
25. I have experienced physical, emotional, verbal, and sexual abuse from [Mr Bryson] throughout the course of our relationship.
26. This has caused me significant trauma and has impacted my mental health severely.
She goes on to describe incidents of:
(a)Physical assaults from as far back as their first year of marriage, in or around 1997, 2011, 2013, early and mid-2017;
(b)Sexual assaults in 1996, many times in 2019 and countless other times;
(c)Property damage/disposal in 2013, 2014, 2019, mid-2020 and the event triggering separation on 3 October 2020;
(d)Controlling behaviour of various types at various times;
(e)Emotional and verbal abuse throughout the relationship.
The descriptions of these incidents lack the corroboration and particulars described at paragraphs 27-28 above. I was not assisted by Annexure L to the wife’s affidavit which was 225 pages of “some medical records and doctors certificates, which lists my health issues, and records of the assault of 2011.” At the invitation of the court at hearing, the wife could not or would not point to specific records within those 225 pages that corroborated any of the family violence events she deposed to. Other than a service provider making a record of the wife’s self-reporting, there is no evidence attributing any of the wife’s historical or present physical or mental ailments to incidents or behaviours of family violence.
The husband denied the allegations. The husband was earnestly cross-examined by counsel. I did not find that the wife’s evidence was strengthened or the husband’s denials weakened under cross-examination.
The evidence around the family violence orders is telling. The interim order obtained by the wife in October 2020 became a final order for two years in mid-2021 by consent and without admissions in order for the husband he says to allocate his energy and resources to these proceedings. The husband then deposes, which was not challenged by the wife:
14. Despite [Ms Bryson] obtaining the IFVO, [Ms Bryson] wrote to me by email on approximately 63 occasions [in late] 2020 (8 weeks). I responded on approximately two or three occasions (as allowed by the IFVO) to try and advance our property settlement matter. Annexed hereto and marked with the letter "B" are examples of the communications received from [Ms Bryson].
15. Despite Final Orders being made by consent without admission on 6 May 2021, from December 2020 to current date, [Ms Bryson] has emailed me approximately 270 times. The communications are rambling, insulting, often unclear and repetitive. I have not replied.
28. … [Ms Bryson] sent an email to me [in early] 2023, where she called me a "cunt" and "filth". I provide the following extract from that email:
You filth, cunt, you cheat and you use your son a name?!!! Who does that?
Your son was harming himself at that time and you abuse day and night was
increasing and you went and cheated and came to us and you never cared for
him.
In fact, you were fighting with him and causing him to run away many times. It was
around those times when you called him [an animal]
Maybe he is an [animal]. [animals] are respected. Cunts are not. You are not just
a cunt. You are a filthy cunt.
[…]33. [In early] 2023, [Ms Bryson] filed a further FVO application, seeking to extend the final order. The final order was scheduled to lapse [in mid-]2023. I opposed the FVO being extended, particularly in circumstances when [Ms Bryson] was continually contacting me, by sending volumes of abusive emails during the period when the existing final order was in place. To prevent that from continuing, I reluctantly decided to file my own FVO application, seeking final orders that would restrain [Ms Bryson] from approaching or contacting me.
34. Both [Ms Bryson]'s FVO extension application and my FVO application were listed for a final hearing before [a magistrate] [in] 2023. At the conclusion of the final hearing, [the magistrate] made an order dismissing [Ms Bryson]'s application to extend the FVO and made a final order in my favour, restraining [Ms Bryson] from approaching or contacting me for a period of 24 months.
I have no doubt that the wife’s present state of mind is that the husband is the cause of her physical and mental ailments, her perceived inability to work and all other unfortunate aspects of her life. However, the evidence does not support that contention. Unfortunately, it seems that the wife’s persistence and escalating blame of the husband is chronic.
On the evidence, I am not satisfied that the husband has engaged in a course of violent conduct towards the wife during the marriage. Nor am I satisfied that the husband has engaged in a course of behaviour referable to family violence as defined in s 4AB of the Act. Ergo, I am not satisfied that there is a basis for the wife’s contributions to be considered as more difficult or harder so that they should be accorded any greater weight.
Overall contributions
The parties financial contributions favour the husband due to his greater capacity to work fulltime and earn throughout all of the relationship. The wife has studied or worked throughout most of the relationship. The parties non-financial contributions favour the wife due to her greater capacity to attend to the welfare of the family including contributions made in the capacity of homemaker or parent. I find the parties family and working arrangements and their respective roles during their relationship of some 26 years were fulfilled by each of them consensually such that their respective contributions can be considered equal.
I find that there was something of a drift towards contributions of the husband outweighing those of the wife from about 2014 onwards when the wife stopped working consistently and her attendance to the welfare of the family and the family home began to deteriorate. Post separation, the wife has not attended to reasonable maintenance of the Suburb D property whilst she has had sole occupancy of it. However, in the context of the size of the pool and the length of the relationship, these circumstances are relatively negligible and do not warrant an adjustment.
RELEVANT SECTION 75(2) FACTORS PURSUANT TO SECTION 79(E) OF THE ACT
The husband is 62 years old and has some medical conditions commensurate with his age. For the past 16 years, he has been employed as an educator with T Company in City E. He earns about $154,000 per annum. He wants to move towards retirement within the coming years.
The wife is five years younger than the husband at 57 years old. The wife deposes to a long list of health issues and that “I require specialists for medical care.” Again, there is a lack of details and particulars around her evidence and I am not assisted by the 225 pages of “some medical records and doctors certificates, which lists my health issues, and records of the assault of 2011.”
By way of inclusion in her trial affidavit filed on 4 July 2023 (after the husband’s trial affidavit), the wife disclosed that
102. …. I lost my job [in] 2023. One reason is the health issues and weeks [of] sick leave, and hospitalisation. I am currently unemployed. I have no accumulated leave or sick leave.
In mid-2023, the wife’s then solicitor sent an email to the husband’s solicitor enclosing a copy of an Employment Separation Certificate dated mid-2023. The email states that the wife “has been made redundant …” However, in the Employment Separation Certificate, the ‘Reason for separation’ is marked ‘Employee ceasing work voluntarily’ with free text added “Age Retirement.”
In cross-examination, the wife conceded that she resigned – as opposed to being made redundant.
The wife was employed fulltime most recently at S Authority from late 2022 earning $106,527 per annum. It is clear that as at the date of hearing, the wife was unemployed without any immediate prospects of employment. Significantly less clear is why. The husband seeks an inference that the wife voluntarily ceased work and has capacity for appropriate gainful employment. The wife seeks an inference that she does not have physical and mental capacity for appropriate gainful employment. The onus is on the wife to demonstrate the inference she seeks which, on the balance of probabilities, she has not done.
As to other income, the husband deposed, which was not challenged and I accept:
[Ms Bryson] has alleged I retain a pension from [Country C]. I do not receive a pension, however, I would receive a very small pension only in circumstances where I returned to live in [Country C]. [Ms Bryson] would also receive a pension if she returned to [Country C].
In relation to the children of the parties, the husband deposes as follows, which was not challenged by the wife and I accept as the situation:
[Mr U], born [in] 1996, aged 25 years. [Mr U] is employed as a public servant and is independent;
[Mr V], born [in] 1999, aged 24 years. [Mr V] lives with me full time. He works in casual employment on occasion. [Mr V] suffers from mental health issues and is financially dependent. [Mr V] does not financially contribute to outgoings, I pay all his costs including food, health insurance, medical expenses, phone, and internet. Any monies received by him in his casual employment is retained by him; and
[Mr W], born [in] 2003, aged 19 years. [Mr W] has transitioned into university studies. I also financially support [Mr W]. [Mr W] lives predominately with me and spends time with [Ms Bryson]. As with [Mr V], I pay for all of [Mr W]'s expenses. I also give [Mr W] $200 per fortnight for him to use as spending money. I understand that when he spends time with his mother, he uses this money to buy food for himself.
Overall consideration of future needs
The husband is five years older which is a considerable difference at his age relative to the wife. Both parties have some health issues. It seems the wife’s health issues are likely to impinge upon her earning capacity more than the husbands but there is no objective evidence about that. The husband is presently employed and the wife is not. Excepting the question of her health, I am not satisfied the wife’s earning capacity is sufficiently less than the husband’s. The husband is committed to the present and ongoing support of two of the parties’ three adult children.
In the context of the size of the pool, the parties competing future needs factors operate to offset each other such that there ought not be any adjustment to account for the matters referred to in section 75(2).
OTHER FACTORS
Contributions to the welfare of the family have been taken into account in the consideration of the non-financial contributions.
The orders that I make do not have any effect upon the earning capacity of either party.
There are no other orders made under the Act affecting a party to the marriage or a child of the marriage.
JUSTICE AND EQUITY
Consistent with the above findings as to contributions and future needs, the property of the parties to the marriage or either of them, ought to be equalised.
Having identified the asset pool, assessed each party’s contributions, and assessed how future events may have a financial impact on either of the parties, it is necessary to “step back and examine this formula-based reasoning against the history of the marriage, intangible considerations and other contingencies so as to consider whether the outcome represents a just and equitable result.” (Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143 at [39]).
A one-pool approach in this case is appropriate and useful as the amount of the superannuation interests has been agreed and it is likely to become available to the parties relatively soon. Both parties ran their case on a one-pool approach.
On the balance sheet that I have determined, the effect of the primary orders sought by the husband is demonstrated at Annexure A in Columns J and K. Whist it produces only 3 per cent of the non-superannuation assets to the husband, and only 15 per cent of the superannuation to the wife, it yields an overall division of the combined total as to 49 / 51 to the husband and wife respectively.
The practical effect is that the wife has the opportunity to retain the Suburb D property if she can manage the refinance of it. Otherwise, the sale of it will afford her in the order of $778,247 to obtain other accommodation. Having already secured accommodation, the husband will retain all of his superannuation interests to provide for his looming retirement. He will be free of liabilities arising from the Suburb D property.
I am satisfied that the division of the property and the practical effect on the parties is a just and equitable outcome.
There are two other aspects of the orders that require reasoning.
Trustee for sale of the Suburb D property
In default of the wife refinancing the Suburb D property, it will need to be sold and the home loan paid out in order to end the financial relationship as between the parties. In circumstances where the wife is to obtain all of the net proceeds of sale, it should be the case that the wife is the sole person responsible for the sale of the property. She is interested in maximising the net proceeds whereas the husband has no real incentive to maximise the net proceeds.
That however needs to be balanced against the likelihood of the scenario where the wife does not do all things necessary to sell the property such that the home loan is not discharged and the husband is unable to be extricated from liabilities arising from the Suburb D property.
The wife has defaulted on the last two payments. The wife curiously denied this at hearing. The husband adduced into evidence a text message he received from the bank to this effect which supported it. The wife does not give evidence of any intentions to obtain an income. The wife’s perspective as to the state of the property and the manner in which it is kept and used by the wife are not supportive of the notion that the wife is both willing and able to vacate the property and offer it for sale with vacant possession. The tone and tenor of the wife’s behaviour throughout the proceedings support the proposition that it is more likely than not that she will not accept the outcome of the proceedings in the sense that she will not vacate the property. Accordingly, the husband is effectively appointed sole trustee with respect to the sale of the property as that is what is deemed required for the Orders to be given effect.
Approach to division of assets
Since Norbis v Norbis [1986] 10 FamLR 819, it is well settled that the Court can adopt either a global approach or an asset by asset approach to property proceedings under s 79 of the Act. Whilst a global approach has been taken to the assessment of contributions and future needs, it is necessary to adopt an asset by asset approach in order to achieve a just and equitable result.
In this case, I have determined a division of the property that is informed by the application of a percentage to agreed or determined values of property. In the event that the Suburb D property is sold, I consider it certain that the net proceeds would not reflect the same percentage division with the effect of benefiting one of the parties to the detriment of the other - at least as to value but not as to title.
I note the recent decision of the Appellate Jurisdiction of Division 1 of the Federal Circuit and Family Court of Australia in Mullis & Quimby [2023] FedCFamC1A 16 [at 8] which recognised the principle that the preferred course to be adopted to achieve a just and equitable division of the parties’ property was to make orders for a percentage division from the net proceeds of sale of the subject property, rather than a lump sum payment as determined by the primary judge. Particularly in circumstances where it could reasonably be anticipated that there would likely be a substantial delay between the conclusion of evidence, including as to valuation, and delivery of judgment. In Mullis & Quimby, the delay was one year and four months.
Delay is not the issue here. Even if judgment were delivered ex-tempore and the Suburb D property was sold in a matter of weeks thereafter, I would still consider it certain that the property would not yield the exact sum as the value determined for the purposes of these proceedings.
In this case, adjusting the division of property to take into account the definitive market value determined by sale of the Suburb D property would require a subsequent superannuation splitting order. Neither party has taken the necessary steps precipitating a splitting order. There is greater utility in finalising the proceedings than imposing delay and costs on the parties through valuations, drafting splitting orders and according procedural fairness to the trustee. Moreover, determination of the base amount would have to be informed by the net proceeds of sale of the Suburb D property which would require a measure of co-operation and agreement as between the parties. On the history of these proceedings and my impression of the wife’s attitudes and demeanour at hearing, I have no confidence in the parties being able to comply with orders that require any measure of co-operation, trust or agreement as between the parties.
In the circumstances of this case, despite the preference expressed by the Court in Mullis & Quimby, the Orders are not made in terms that provide for a percentage division from the net proceeds of sale of the Suburb D property – should the Suburb D property need to be sold pursuant to Orders of the Court.
THE ORDERS
Order 1 provides for the transfer of title to the Suburb D property to the wife provided that she can manage to obtain finance for it. It is in the same terms sought by the husband except for “the Respondent” rather than “the parties” are to do all acts and things necessary.
Order 2 provides for the husband to be indemnified by the wife with respect to all liabilities arising from the Suburb D property. It is in the same terms sought by the husband except that the commencement of the period of indemnity is from the date of hearing rather than the date of the Orders.
Order 3 provides for the sale of the Suburb D property in order to discharge the loan secured by way of mortgage over the property. It is in the same terms sought by the husband except that Order 3(a) expressly appoints the husband as the trustee for the sale of the property.
Orders 4 and 5 seek to provide the husband with the means necessary to give effect to the Orders if and where necessary.
Order 6 is as agreed between the parties.
Order 7 is made in the terms sought by the husband in the circumstances whereby the wife deposed in cross-examination that either the husband has these items already or she does not know where they are, but, if she encounters them she has no interest in keeping them.
I do not make orders sought by the wife with respect to the various chattels she seeks to have possession of because they are not sufficiently described. I am not satisfied as to what those things actually are and consequently where they are or how such an Order could be determined to be complied with or not.
Orders 8, 9, 10 and 11 give effect to the division of property as set out in Annexure A Columns J and K.
Order 12 is made to provide for the circumstances where one or the other of the parties is recalcitrant in the execution of documents.
I certify that the preceding one hundred and thirty-seven (137) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansfield. Associate:
Dated: 18 August 2023
ANNEXURE A
| A | B | C | D | E | F | G | H | J | K |
| Asserted Values | Determined interests | Effect of Orders | |||||||
| Husband | Wife | Pool | Husband | Wife | Husband | Wife | |||
| Assets | |||||||||
| Husband's property interests in Country C | 0 | 2,453,666 | 0 | ||||||
| Wife's property interests in Country C | 0 | 0 | 0 | ||||||
| 1 | B Street, Suburb D | J | 1,090,000 | 850,000 | 1,090,000 | 545,000 | 545,000 | 1,090,000 | |
| 2 | WBC Acc # ……27 | H | 3,000 | N/K | 0 | ||||
| 3 | WBC Acc # ……14 | H | 192 | N/K | 0 | ||||
| 4 | Bank F Acc #...2 / # …12 | H | 674 | N/K | 0 | ||||
| 5 | Motor Vehicle 2 | H | 15,000 | 20,000 | 17,500 | 17,500 | 17,500 | ||
| 6 | Motor Vehicle 1 | J | 5,000 | 500 | 500 | 250 | 250 | 500 | |
| 7 | Motor Vehicle 3 | W | 35,150 | 30,000 | 30,000 | 30,000 | 30,000 | ||
| 8 | Jewellery | J | 51,570 | N/K | 51,570 | 25,785 | 25,785 | 51,570 | |
| 9 | Home and Contents | J | 20,000 | 5,000 | 20,000 | 10,000 | 10,000 | 10,000 | 10,000 |
| 10 | Bank F Acc #...41 / …2 | W | N/K | 0 | 0 | ||||
| 11 | Bank F Acc #...16 / …2 | W | N/K | 58 | 0 | ||||
| 12 | ANZ Bank Acc #...02 | W | N/K | Closed | 0 | ||||
| 13 | ANZ Bank Acc #...52 | W | N/K | 0 | |||||
| 14 | ANZ Bank Acc #...95 | W | N/K | 0 | |||||
| 15 | ANZ Bank Acc #...08 | W | N/K | ? | 0 | ||||
| 16 | Bank Acc #...78 | W | N/K | ? | 0 | ||||
| 17 | Bank AA Account #...90 | W | N/K | Nominal | 0 | ||||
| 18 | Bank Account Country C | H | Nominal | ? | 0 | ||||
| 19 | Account located in Country C | W | N/K | 0 | 0 | ||||
| 20 | Account BB | H | 0 | 0 | |||||
| 21 | Account BB | W | Nominal | 16 | 0 | ||||
| Items lost, stolen, damaged | N/K | 0 | |||||||
| Total Assets | 1,220,586 | 3,359,240 | 1,209,570 | 598,535 | 611,035 | 28,000 | 1,181,570 | ||
| A | B | C | D | E | F | G | H | J | K |
| Asserted Values | Determined interests | Effect of Orders | |||||||
| Husband | Wife | Pool | Husband | Wife | Husband | Wife | |||
| 22 | Funds removed from offset account by the Wife at separation | J | 40,000 | Spent on needs | 39,906 | 39,906 | 39,906 | ||
| Total Addbacks | 40,000 | 0 | 39,906 | 0 | 39,906 | 0 | 39,906 | ||
| Liabilities | |||||||||
| 23 | Bank F #...83 / - Suburb D | J | 311,753 | 311,753 | 311,753 | 155,877 | 155,877 | 311,753 | |
| 24 | Bank F #...33 / #...15 (Home Loan) | J | 0 | 0 | |||||
| 25 | Credit Card | H | 1,280 | 0 | |||||
| 26 | Credit Card #...08 | H | 514 | 0 | |||||
| 27 | Bank F Personal Loan #...22 | H | 48,759 | ? | 0 | ||||
| 28 | Bank AA Credit Card | W | 6,955 | 6,955 | 0 | ||||
| 29 | Motor Vehicle 3 Loan (Bank F #...04 / …21 | W | 28,809 | 27,000 | 28,809 | 28,809 | 28,809 | ||
| 30 | Bank F Credit Card #...9 | W | 940 | 940 | 0 | ||||
| 31 | Credit Card | W | N/K | 18,000 | 0 | ||||
| Total Liabilities | 399,010 | 364,648 | 340,562 | 155,877 | 184,686 | 0 | 340,562 | ||
| Net Non-Superannuation | 861,576 | 2,994,592 | 908,914 | 442,659 | 466,256 | 28,000 | 880,914 | ||
| 49% | 51% | 3% | 94% | ||||||
| Superannuation | |||||||||
| 33 | Super Fund 1 | H | 969,904 | 969,904 | 969,904 | 969,904 | 969,904 | ||
| 34 | Super Fund 2 | W | 177,699 | 177,699 | 177,699 | 177,699 | 177,699 | ||
| Total Superannuation | 1,147,603 | 1,147,603 | 1,147,603 | 969,904 | 177,699 | 969,904 | 177,699 | ||
| 85% | 15% | 85% | 15% | ||||||
| Combined Total | 2,009,179 | 4,142,195 | 2,056,517 | 1,412,563 | 643,955 | 997,904 | 1,058,613 | ||
| 69% | 31% | 48% | 51% | ||||||
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