Canvil and Merle and Ors (No. 2)
[2019] FamCA 685
•1 February 2019
FAMILY COURT OF AUSTRALIA
| CANVIL & MERLE AND ORS (NO. 2) | [2019] FamCA 685 |
| FAMILY LAW – PROPERTY SETTLEMENT – Contributions – where there are two children of the marriage – where it is declared that the husband holds property on trust for his parents – where the parties maintained separate finances – where the Court is not satisfied that in all of the circumstances that it is just and equitable to make an order – where the wife is declared to be the owner of the balance of sale proceeds held in an offset account. |
| Family Law Act 1975 (Cth) |
| Baglio & Baglio [2013] FamCA 105 Bevan & Bevan (2013) FLC 93-545 Brown v Green (1999) FLC 92-873 Cerini & Cerini [1998] FamCA 143 Chorn v Hopkins (2004) FLC 93-204 DJM v JLM (1998) FLC 92-816 Harper & Harper [2013] FamCA 528 In the Marriage of Clauson (1995) FLC 92-595 In the Marriage of Kowaliw (1981) FLC 91-092 In the Marriage of Pastrikos (1980) FLC 90-897 In the Marriage of Townsend (1995) FLC 92-569 In the Marriage of Waters & Jurek (1995) FLC 92-635 Marker & Marker [1998] FamCA 42 Omacini v Omacini (2005) FLC 93-218 Polonius & York [2010] FamCAFC 228 Stanford v Stanford (2012) 247 CLR 108 |
| APPLICANT: | Mr Canvil |
| 1st RESPONDENT: | Ms Merle |
| 2nd RESPONDENT: | Mr E Canvil and Ms G Canvil by her Case Guardian Mr E Canvil (who appeared on 18 April 2016 pursuant to the Order made 29 February 2016) |
| INDEPENDENT CHILDREN’S LAWYER: | Dooley Solicitors |
| FILE NUMBER: | BRC | 4803 | of | 2012 |
| DATE DELIVERED: | 1 February 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 29 February 2016; 1, 2 & 3 March 2016; 18 April 2016 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Hackett |
| SOLICITOR FOR THE 1ST RESPONDENT: | Evans & Company Family Lawyers |
| COUNSEL FOR THE 2ND RESPONDENT: | Mr Blackah (on 18 April 2016 only) |
| SOLICITOR FOR THE 2ND RESPONDENT: | Calabrese Lawyers (on 18 April 2016 only) |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Black |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Dooley Solicitors |
Orders
IT IS ORDERED THAT
All previous property settlement orders are discharged.
IT IS DECLARED THAT
As and from the date of its acquisition, Mr Canvil held the property situate at and known as Unit 1, X Street Suburb Y in the State of New South Wales, and more particularly known as Lot … on SP …, which is registered in his name, by way of a resulting trust beneficially for Mr E Canvil and Ms G Canvil.
The husband is the sole legal and beneficial owner of all items of personal property and effects presently standing in his name or possession and control, to the exclusion of the wife, with the same to include but not be limited to the following:
(a) all amounts in bank accounts in his name; and
(b) all furniture, furnishings and effects in his possession; and
(c) any motor vehicle registered in his name; and
(d) any personal effects and jewellery; and
(e) any shareholdings in his name; and
(f)any superannuation entitlements.
The wife is the sole legal and beneficial owner of all items of personal property and effects presently standing in her name or possession and control, to the exclusion of the husband, with the same to include but not be limited to the following:
(a)all funds in all bank accounts held in her name, including those held by her in her Z Bank Offset Account as a consequence of the Order made on 24 February 2014; and
(b) her medical practice and all associated entities; and
(c)all real property in her possession or ownership; and
(d) all furniture, furnishings and effects in her possession; and
(e) all motor vehicles registered in her name; and
(f) any personal effects and jewellery; and
(g) any shareholdings in her name; and
(h) any superannuation entitlements.
AND IT IS ORDERED THAT
Within twenty-eight (28) days, the husband (Mr Canvil) shall do all acts and things and execute all deeds and instruments, including but not limited to executing and delivering a Transfer in registrable form to the Second Respondents, as may be necessary to transfer to the Second Respondents, Mr E Canvil and Ms G Canvil the legal title to the property situate at and known as Unit 1, X Street Suburb Y in the State of New South Wales, and more particularly known as Lot … on SP ….
The wife (Ms Merle) is hereby appointed as the agent for the husband (Mr Canvil) in relation to any request for the cessation or termination of the freeze-storage or thaw of the frozen embryos and, by this Order, any person, organisation, corporate entity or authority is hereby authorised to act on the sole direction of Ms Merle in relation to such request.
The husband (Mr Canvil) is hereby restrained and an injunction issue restraining him from providing further written instructions to BB Service to prevent that entity from acting on any written instructions provided by the wife (Ms Merle) by which she authorises the cessation or termination of the freeze-storage of the frozen embryos or otherwise consents to the thaw of the same.
AND IT IS FURTHER ORDERED THAT
In the event that any party refuses or neglects to do any act or sign any document required to be done or executed in compliance with the provisions of these Orders, then, pursuant to s106A of the Family Law Act 1975 (Cth), a Registrar of the Family Court of Australia at Brisbane is hereby appointed to execute all deeds and documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to the said Order and an affidavit of the solicitor for the non-defaulting party shall be sufficient evidence of such non-compliance and the party in default will be responsible for payment of any legal costs incurred by the other party as a result of the failure or neglect.
All outstanding applications are otherwise dismissed and removed from the list of cases requiring finalisation.
After the expiration of the appeal period, all subpoenaed documents shall be destroyed or returned to the persons or institutions from which they emanated and any exhibit shall be returned to the party by whom that exhibit was tendered.
AND IT IS FURTHER ORDERED THAT
In the event that any party seeks an order that the other party pay his or her costs:
(a)if thought necessary by a party, that party has leave to file a further affidavit by that party containing any evidence relevant to the issue of costs and one other affidavit in support of the same, provided that such affidavits are filed within twenty-eight (28) days of the date of this order; and
(b)any such party shall file and serve any written submissions in support of such application for costs within twenty-eight (28) days of today; and
(c)the party against whom an order for costs is sought shall, within a further fourteen (14) days thereafter, file and serve any brief written submissions in answer to the submissions filed and served by the party seeking costs; and
(d)the party seeking an order for costs shall file and serve any brief further written submissions within seven (7) days of its service, strictly in reply to the submissions served by the party against whom an order for costs is sought,
and any such application for costs shall be considered in Chambers.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Canvil & Merle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 4803 of 2012
| Mr Canvil |
Applicant
And
| Ms Merle |
First Respondent
And
| Mr E Canvil and Ms G Canvil by her Case Guardian Mr E Canvil |
Second Respondent
And
| The Independent Children’s Lawyer |
REASONS FOR JUDGMENT[1]
[1] I commence these Reasons with a sincere apology to the parties for the significant delay in finalising this matter. I assure them that I have had particular regard to the extensive contemporaneous notes I took during the hearing. I have revisited these notes, the Transcripts, the affidavit material, and the contents of all parties’ respective submissions, however described. I also note that the parties were initially advised on 20 December 2018 that Judgment would be delivered on 18 January 2019 and later advised that this aspect of the proceedings would be finalised by orders made on 1 February 2019.
Mr Canvil (whom I will refer to as “the husband”) was born in Country L in 1967. He moved with his family to live in Australia in 1981, before returning to live in Country L with his parents (the Second Respondents) in 1987. He works as the business manager of CC, a trading business entity established by DD Pty Ltd, a privately owned company controlled by the Second Respondents. I will refer to Mr E Canvil as “Mr Canvil” during these Reasons.
Ms Merle (whom I will refer to as “the wife”) was born in Country M in 1970. She is a healthcare professional, whom first obtained her qualifications overseas and, following the parties relocation to live in Australia in early 2007, undertook the tasks necessary to have those specialist qualifications recognised in Australia.
The husband and the wife commenced their relationship in the United Kingdom in or about October 2002, cohabitation in about 2003 and married in Country L in July 2006. They continued to live in the United Kingdom until about January 2007, when they moved to live in Sydney. The wife and the children subsequently moved to live on the Region D in early 2009 and the wife commenced working at a hospital in February 2009; the parties dispute the amount of time the husband spent at the Region D after the relocation there, but, generally speaking, I accept that he spent regular time living with the wife and children at the Region D and commuted between Brisbane and Sydney.
The husband and the wife have two children: L, born in Country O in 2006 and F, born in Australia in 2009. The children have always lived primarily with the wife and will continue to do so as a consequence of final parenting orders made on 25 January 2019. The fact that the wife has been the children’s primary care provider (either directly or with the assistance of her parents and/or paid assistants) and has met the bulk of their financial needs, particularly since the parental separation is, of course, a relevant consideration when assessing the husband and wife’s respective contributions, both during their cohabitation and after their separation.
The wife said she and the husband separated finally in September 2011, whereas the husband said their final separation occurred in January 2012. I am not persuaded that it is necessary to resolve this dispute – involving a period of about four months – in order to determine those orders (if any) which are just and equitable in the circumstances of this case.
Competing proposals
The husband’s primary position is that he should retain that property he owns and the wife should retain the property she owns and that each should retain their respective entitlements to superannuation: that is, as I appreciated it, he asserted that, given the circumstances of the case, the Court would not be satisfied that, in all the circumstances, it is just and equitable to make an order altering the interests of the parties to the marriage in the property.[2]
[2] s 79(2) of the Family Law Act 1975 (Cth).
The husband also sought that money currently held in an offset account, being the nett proceeds of sale of real property previously owned by himself and the wife (the Suburb B property), be applied to meet expenses related to the children, including outstanding school fees, costs of the Independent Children’s Lawyer, costs associated with the litigation and other future costs. He also supported the making of a declaration that Unit 1 X Street, Suburb Y (the X Street property) is held by him on trust for his parents, the Second Respondents, as he contends that they are the beneficial owners of the same by virtue of the fact that they provided the funds for its acquisition in 1987 and have maintained and improved it since then.
In contrast, the wife contended that the Court would be persuaded that it is just and equitable to make an order altering the interests of the parties to the marriage in the property: she proposed that she retain the property she currently owns and that is in her possession or under her control (including the balance of the sale proceeds realised from the sale of the Suburb B property) and that, in addition, the husband pay her the sum of $300,000.00 within thirty (30) days (in default of which payment the X Street property be sold and the proceedings be disbursed so that she is paid $300,000.00 and any interest payable on that sum and the balance is paid to the husband). Her proposal proceeds on the basis that the Court will not be persuaded to conclude anything other than that the husband, who has the legal title to the X Street property, is also the beneficial owner of the same. The wife also sought that an order is made to depart from the child support assessment current at the time of the hearing and that an order be made to permit the disposal of remaining embryos held by BB Service Pty Ltd.
The Second Respondents sought[3] that a declaration be made that they are the beneficial owners of the X Street property and that the husband be required to do all things to transfer the legal title to that property to them. As an alternative, they sought that the Court find that, by reason of the financial contributions they have made to the X Street property – which I accept include paying all of the $160,000.00 purchase price[4] and the associated acquisition costs and all of the of the Council, water and strata rates for the property since its acquisition and all costs associated with its conservation or maintenance since its acquisition in 1987 and paying about $15,000.00 to effect some renovations or improvements to it – they have an equitable interest in it by way of constructive trust in their favour.
[3] By their Response to Initiating Application filed 21 March 2016.
[4] Exhibit 24.
Principles
The manner in which proceedings for property settlement are to be approached is well known[5] and requires no further elucidation.
[5] See, for example: In the Marriage of Pastrikos (1980) FLC 90-897; In the Marriage of Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage of Waters & Jurek (1995) FLC 92-635; In the Marriage of Clauson (1995) FLC 92-595, In the Marriage of Hickey (2003) FLC 93-143 and Stanford v Stanford (2012) 247 CLR 108.
The property of the parties and related issues
I record that I accept the values contended for by the wife where the same were not the subject of contrary evidence led by the husband and/or where he did not challenge the wife about the same during his cross-examination of her.
There are a number of disputes about the parties’[6] existing legal interests in property. Whilst some are more significant than others, they obviously all require resolution.
[6] That is: Mr Canvil and Ms Merle.
The wife’s bank accounts
The wife swore to having the following sums held in bank accounts:[7]
a)Direct Saver account number …02: $1.03
b)Complete Freedom account number …24: $1,695.76
c)Complete Freedom offset number …08: $22,337.09
[7] Financial Statement filed by the Wife on 5 February 2016.
The husband did not contend for any particular value for these accounts. In circumstances where he did not lead any evidence and did not seek to challenge the values by way of cross-examination, I accept the wife’s evidence.
Account of Ms EE held in wife’s name
The wife contended that the funds held in the FF Bank account in her name, in the amount specified in the Balance Sheet filed 12 February 2016, are funds which she held on behalf of her mother, Ms EE. Given that the husband did not take issue with this contention, I accept that the funds held in this account are funds of Ms EE and not the property of the wife.
The husband’s bank accounts #...19 and #...14
The only evidence before me in relation to these accounts is that contained in the husband’s Financial Statement filed 18 April 2015 (Exhibit 9), which records amounts of $870.00 and $1,897.00 as the balances standing in his Z Bank accounts. However, the wife contended[8] that, pursuant to the husband’s most recently disclosed bank statements (dated 27 October 2014) those sums are actually $707.00 and $1,034.00 respectively. As the bank statements are not in evidence before me, I intend to accept the amounts contended for by the husband; I also record that, even if the bank statements had been in evidence, I would have preferred the husband’s more recent evidence (as at April 2015) to that which was contained in the more dated bank statements of October 2014.
[8] Balance Sheet filed by the Wife on 12 February 2016.
The wife’s business
The wife’s practice, operated through GG Pty Ltd, was valued by Mr HH, an expert jointly instructed by the parties to value the same, at $195,973.00 (comprising vehicle and plant and equipment as per his valuation). Whilst, throughout his material, the husband made various assertions about this valuation - including that, as the wife did not intend to sell the practice, it should have been valued on a “going concern” basis rather than the market basis adopted by Mr HH - he did not seek to cross-examine the Mr HH.
In the circumstances, I accept Mr HH’s valuation.
Company JJ Share Portfolio
I note that the wife advanced that the value of her Company JJ Share Portfolio was $149,294.00. As the husband did not contend for any other value, I accept the value contended for on her behalf.
Shares in Company VV and Company WW
The husband asserted that his shares in Company VV be accorded a value of $63,000.00, whilst his shares in Company WW be valued at $638.00. While the wife initially included these values in the balance sheet “subject to the Wife receiving disclosure supporting the same”[9], no particular issue was taken at the hearing about this and I accept that these shares have the value contended for.
[9] Balance Sheet filed by the Wife on 12 February 2016 at footnote 26.
The X Street Property (Unit 1 X Street, Suburb Y)
I accept that Mr E and Ms F Canvil migrated to Australia from Country L in 1981.[10] I also accept that, at or about this time, they purchased real property located in Suburb KK, in which they lived.[11] I accept that, when they and their children returned to Country L in 1986, the Suburb KK property was occupied by family friends, whom they hoped might purchase it. I also accept that this did not eventuate and they continued to own this property when the X Street property was acquired. I accept Mr E Canvil’s evidence that, when the Suburb KK property was sold (in about May 1994), he didn’t think that any capital gains tax was remitted in respect of its disposal.
[10] Affidavit of Mr E Canvil filed 31 December 2012 at [4].
[11] Affidavit of Mr E Canvil filed 31 December 2012 at [4].
I accept that, in 1987, Mr E and Ms F Canvil returned to Australia for a holiday. I accept that, when in Australia, Mr E and Ms F Canvil decided to purchase the two bedroom X Street property. I accept that Mr E Canvil decided to purchase the property in the husband’s name, following advice he received from an accountant. I accept that, in order to implement this decision, he sent the contract for sale for the X Street property to the husband in Country L, where he had remained, studying at university.
I accept that, before Mr E Canvil sent the husband the contract, he spoke with the husband by telephone and told him, in essence, that he and Ms F Canvil had decided to buy an apartment in Sydney which they really liked; that they needed to put it in his name; that he had posted the contract to him and that he (the husband) should sign it where indicated and return it to his father as soon as possible. There is no suggestion that Mr E Canvil told the husband during his conversation that the X Street property was to be put into his name (the husband’s) because it was being gifted to him by the Second Respondents: I accept that Mr E Canvil in fact told the father that “We need to put it in your name.” (my emphasis)
I accept Mr E Canvil’s evidence to the effect that, as the head of his family, he was used to “giving orders”; I also accept that it is much more likely than not that he was also used to having the commands that he directed to his family obeyed. I have no doubt that he has had a forceful and, I suspect, very dominant personality for at least a very significant period of his life.
I accept that the husband signed the document he was sent because his father asked him to; I also accept that it was usual that he sign whatever documents his father asked him to sign; I certainly accept that he trusted his father. I also accept that it is more likely than not that, as he was still a student at that time, he regarded himself as someone who was “still living at home”, by which I took him to mean, in essence, still under the control of, and subject to the guidance and command of, his father.
I accept that, after the husband returned the signed contract to them, the Second Respondents provided the entirety of the purchase price for the X Street property; I accept that they did so using funds received from the sale of real property they had previously owned in Country L and from inheritances received from Mr E Canvil’s parents. I accept that the husband made no financial contribution at all to the acquisition of the X Street property.
I accept that a solicitor, who is also the child of Mr E Canvil’s second cousin, did the conveyancing involved in the Second Respondent’s acquisition of the X Street property. I accept that she signed the Transfer in her role as acting for them. I accept that, at the date of the hearing, this person was alive and living in Sydney. I accept Mr E Canvil’s evidence that he and his wife had never had this solicitor document any trust relationship between themselves and the husband. I accept he was genuine and truthful when he said that he didn’t have any reason to do so. I consider this to be completely consistent with the manner in which the family unit constituted by the Second Respondents and their children operated.
I accept that, in about late 1987 or early 1988, Mr E and Ms F Canvil returned to live in Australia and that they moved to live in the X Street Property, where they have lived ever since.
Save for those occasions on which he visited his parents and stayed with them, I accept that the husband has never lived in the X Street property.
I accept that, at a time that is unspecified other than by saying that it happened “shortly after” the Second Respondents moved to live in the X Street property or a “few months after” they purchased it, the husband visited them there and stayed with them. I accept that, having received legal advice, Mr E Canvil asked the husband to sign a Power of Attorney and a blank transfer document during this visit. I accept that Mr E Canvil acted as he did in case he determined to sell the X Street property in the future.
I accept that it is more likely than not that the husband then again signed the documents his father asked him to sign. I accept that the documents he signed included a blank Transfer document and a blank Power of Attorney; I accept his evidence to the effect that it appeared that he in fact signed two Transfers and that he was the author of both signatures which appeared on the documents which together comprise Exhibit 23. I accept he was being honest when he said that he couldn’t remember when or where he signed the Transfer documents. I consider this event to be a further demonstration of the manner in which the family unit constituted by the Second Respondents and their children operated; I also consider that the husband’s actions in signing a blank Transfer and blank Power of Attorney to be inconsistent with him holding a view at that time that he was the beneficial owner of the X Street property.
I accept that, in about April 1989, the Second Respondents applied to the council for permission to enclose the balcony of the X Street property; I accept that they renovated the unit to suit their tastes. Given that it was not contended by either the husband or the wife that husband made any financial contributions to the cost of these renovations, I think it much more likely than not that the costs of the renovations was met entirely by the Second Respondents.
I accept the thrust of Mr E Canvil’s evidence in that he attended at and participated in matters in which an “owner” of the X Street property would attend or participate. I also accept that the Second Respondents have paid all utilities bills during their cohabitation in the X Street property. I accept that the husband has not paid any of these costs.
I accept that neither the husband nor the wife have made any direct financial contribution to the conservation or improvement of the X Street property. I also accept that the wife had always known that the Second Respondents had purchased the property and that they had lived in it since it was bought in 1987.
The responses to inquiries made by the Office of State Revenue, New South Wales
According to documents from the Office of State Revenue[12], the Office made inquiries in 1989 and 2005 about the ownership of the X Street property. I accept that the husband did not recall providing instructions in either 1989 or 2005 to answer the inquiries then made by the Office of State Revenue.
[12] Exhibits 19 and 20.
Whilst I accept Mr E Canvil’s evidence to the effect that he did not recall instructing Mr LL’s firm to advise the Department of State Revenue in New South Wales that the X Street property was the husband’s principal place of residence in 1989 and 2005, it seems more likely than not that, given that the husband was overseas when these inquiries were made, it would have ordinarily fallen to his father to provide answers to such inquiries. That this is more likely to have been the case is also, it seems to me, completely consistent with Mr Canvil and the husband both proceeding on the basis that the X Street property was actually the property of the Second Respondents.
I think it more likely than not that the responses provided were provided in order to minimise any liability for applicable tax.
Mr W Canvil’s unit: Unit 2 X Street, Suburb Y
The husband’s brother, Mr W Canvil, is the registered owner of a three bedroom unit in the same block as the X Street property. I accept that, in or about 2004, Mr E Canvil suggested to Mr W Canvil that he should purchase a unit in the same block as the X Street property. I accept that Mr W Canvil’s evidence and that he applied funds in the amount he specified toward the purchase of the unit and that the Second Respondents loaned him the sum of $200,000.00 to assist in meeting the purchase price. I accept Mr W Canvil’s evidence to the effect that he and his father agreed that he would repay the funds when he sold the unit. As noted, they lodged a caveat on the title to that property.
The wife’s solicitors asserted that the property owned by Mr W Canvil was not the subject of a trust and that the Second Respondents advanced funds and registered a caveat on the title of this property and then released this “almost immediately.” I consider that the umbrage Mr E Canvil took at the suggestion that the caveat was released “almost immediately” understandable given the time that elapsed between Mr W Canvil’s purchase of the same and the release of the caveat. Further, I consider here to be a significant difference between the circumstances surrounding the respective purchases of the X Street property and Mr W Canvil’s unit in that I accept his evidence that, unlike the husband, he made a direct financial contribution to its acquisition.
I accept that, in about 2011, when Mr W Canvil was considering selling his unit, he discussed, with Mr E Canvil, the removal of the caveat to enable the sale; I accept that this was more likely than not in the context of Mr W Canvil repaying his parents the $200,000.00 they had advanced to him. I accept that, when the proposed sale of the unit did not eventuate, the Second Respondents did not lodge a caveat over the title to the unit; again, I accept Mr E Canvil’s evidence to the effect that he decided at that time that there was no real need to do so; I also accept that he is highly unlikely ever to seek that Mr W Canvil repay the funds advanced to assist him in the purchase of the unit, given Mr E Canvil’s evidence that “until he’s going to sell his unit, then he repay us”; when he was asked if that meant that, if Mr W Canvil never sold his unit he would never have to repay them, Mr E Canvil said “if he never sells then good luck to him.”
The wife’s statement in support of her application for a spousal visa: October 2016[13]
[13] Exhibit 28.
I accept that, when the wife applied to migrate to Australia, she provided a statement, dated 22 October 2006, to be submitted with her application for a spouse visa. I accept that, in that statement, she advised the relevant authorities that she owned a flat in the UK (which was going on the market and the sale proceeds would be used to buy property in New South Wales) and that “in the meanwhile we are planning to stay with Mr Canvil’s parents and brother who have two flats in Sydney.”
I accept that her reference to “two flats in Sydney” was a reference to Units 2 and 1 in the Suburb Y block of apartments (that is: to the X Street property and to Mr W Canvil’s unit); I also accept that, when she used the words “have two flats”, she meant “they own two flats.” I accept her evidence that, at the time she made this statement, the husband had not said anything to her to suggest that he was the legal owner of the X Street property.
I accept that, by the time the wife signed her October 2006 statement, she and the husband had discussed purchasing property in New South Wales. I accept that they had been involved in discussion/s with Mr E Canvil which were to the effect that, when the wife and the husband moved to Australia, they would buy a property together and that she (the wife) would pay for half of this and he (the husband) and his family would provide the other half of the funds needed for the purchase.
I also accept that, as part of the process associated with the wife’s application, the husband completed a Form 40SP visa sponsorship form[14] on 5 November 2006. I accept that, in response to question 28, he detailed that his brother owned a 3 bedroom apartment in Australia (being Unit 1 X Street, Suburb Y, NSW 2089 – which is, in fact inaccurate because Mr W Canvil’s unit is Unit 2 X Street, Suburb Y) where he, the wife and L would live while they are looking for a house to buy. He also said that his parents also owned a property in the same apartment block. I consider that these representations made by the husband are inconsistent with the contention that he regarded himself as holding the beneficial interest in the X Street property.
[14] Exhibit 22.
The Application for the First Homeowner’s Grant (the Application)
I accept that, after the husband and wife migrated to Australia in January 2007 (about twenty years after the X Street property was purchased), they applied for a First Homeowners Grant on 1 June 2007. I accept that they did so in conjunction with their plan to purchase the Suburb B property, which they purchased in about July 2007. I accept that, when the wife bought the Suburb B property, she believed that the Second Respondents owned the X Street property.
I accept that the husband did not tell the wife that he owned the X Street property before they applied for the First Homeowners Grant; I accept that they had no discussion about him owning any other property before then. I accept that it is more likely than not that they were assisted in the completion of the Application by a mortgage broker; I accept the wife’s evidence that she and the husband met jointly with this broker and provided her with information. I think it much more likely than not that the husband did not tell the broker about his legal ownership of the X Street property.
I accept that the questions contained within the Application were likely answered by the broker on the basis of the information provided to that person by the husband and wife; I accept that the Application contains the assertion that both the husband and the wife were persons whom had never owned a residential property (either jointly, separately or with some other person) before 1 July 2000 in any state or territory in Australia.
I accept that the Application was rejected. I accept that, after the Application was rejected, the husband spoke with the wife about the same; I accept that he then knew that the Application had been rejected because he was the registered owner of the X Street property. I accept that it was a great surprise to the wife when the Application was rejected.
I accept that it is more likely than not that the husband then had a discussion of some sorts with the wife about the topic or issue of his ownership of the X Street property. Whilst it may well have been that they were then particularly focused upon their purchase of the Suburb B property, I simply think it highly unlikely that there would not have been any discussion about the reason for the rejection of their Application; I think it highly unlikely that the wife would not have sought to understand why their Application for financial assistance, associated with their purchase of the Suburb B property, had failed.
It is, I think, very peculiar that the wife had not given any evidence about the contents of any conversation with the husband about the circumstances surrounding his ownership of the X Street property in any of the four affidavits[15] she relied on at the trial: her evidence about this was only given orally after the husband’s cross-examination about this issue had concluded. Her evidence was that, when the Application was rejected, the husband told her that he owned the X Street property: she said he told her that his parents had bought Unit 1 for him and they were living in it and that they also helped Mr W Canvil to buy Unit 2.
[15] Filed on 6 January 2014, 2 May 2014, 22 January 2015 and 5 February 2016.
To the extent that it is relevant, I note that the latter assertion is, it seems to me, consistent with the evidence of both Mr E Canvil and Mr W Canvil that the Second Respondents assisted Mr W Canvil with his purchase of his unit; the wife did not go as far as suggesting that the husband told her that the Second Respondents had bought Mr W Canvil’s unit for him.
When a conversation to this effect was put to him during his cross-examination, the husband said that he did not recall their discussion including that the X Street property had been purchased for him by his parents or that they had bought W his unit. I note that the latter proposition was not completely in accord with the wife’s later account of the contents of the conversation.
I accept that, after the Application was rejected, the husband sent correspondence, dated 15 June 2007,[16] to the relevant Department to ask that they reconsider their decision. Given his father’s role in his life and his role in the acquisition of the X Street property, I think it much more likely than not that he also sent Mr E Canvil a copy of this correspondence. I accept Mr E Canvil’s evidence that, as at the time of the hearing, he could not remember whether this was the case or not; I also accept the evidence given by Mr W Canvil (the husband’s brother) that he, too, could no longer remember if he received a copy of the correspondence.
[16] Exhibit 25.
I accept that, in correspondence dated 15 June 2007 to the Chief Commissioner of State Revenue,[17] the husband advised that “the property in question was purchased by my parents in 1987 as their own dwelling.” He also advised that they had lived there as their home and residence and paid all the ongoing expenses and that he had derived no benefit from it. He asserted that “at the time, they purchased the house for themselves placing my name on the deeds while I was unaware of it.” He asserted that he and the wife would “probably still have no benefit from my parent’s home probably and hopefully for a very long time in the future.” Whilst Counsel for the wife submitted that these assertions are inconsistent with the contention that the husband holds the X Street property on trust for the Second Respondents, I am not persuaded that this is the case: I consider that the first aspect of the information is inconsistent with the assertion that the husband was the beneficial owner of the property and that the latter aspect of it is equally consistent with an expectation that he would inherit the X Street property from the Second Respondents at some future time.
[17] Exhibit 25.
I accept that it is more probable than not that the husband sent his father and brother an email on 18 June 2007[18] in which he outlined his understanding of a meeting in which they had all participated with a Mr LL, an accountant from MM Group whom was then engaged by Mr Canvil to provide him and his business with accounting advice, on or about that day. I accept that, as at the date of the hearing, Mr LL had retired from practice. I note that the husband could not remember talking with Mr LL about the topic of the capital gains tax that he would incur in respect of the X Street property if he and the wife bought the Suburb B property: he said he couldn’t recall that far back.
[18] Exhibit 26.
Whilst this may very well be, I accept that the email sent 18 June 2007 from the husband to Mr E Canvil and Mr W Canvil contains the assertion that he had spoken to Mr LL, amongst other things, in respect to the capital gains tax we could discuss it at a later time next meeting.”[19] I also accept that the document attached to an email sent on 21 June 2007 by the husband contained his notes of a meeting with Mr LL on 20 June 2007[20] and that these included “Capital Gain Tax accruing on Unit 1 from day of settlement of new home of Mr E Canvil.”
[19] Exhibit 26.
[20] Exhibit 27.
Given this, whilst the husband did not accept that the reference in his 18 June 2007 email to “in respect of Capital Gain Tax, we could discuss it at a later time at the next meeting” was his reference to capital gains tax on the X Street property and said that, judging by the email, it was a reference to the Suburb B property, I think it more likely than not that the reference was to the issue as outlined in the contemporaneous email.
I accept that the husband, Mr E Canvil and Mr W Canvil met with Mr LL on 20 June 2007. I accept that the husband prepared notes of that meeting which he attached to an email he sent to his brother and his father.[21] I accept that, according to the notes, one of the subjects discussed with Mr LL was the issue of capital gains tax. I note that the husband’s evidence was that he understood that capital gains tax was accruing on the X Street property from the day of settlement of the Suburb B property. I accept his evidence to the effect that he knew that because Mr LL had told him that he couldn’t have two principal places of residence and that the first property in his name would accrue capital gains tax from when he bought his second property.
[21] Exhibit 27.
Further consideration
I note that, when Mr E Canvil was asked about the loan agreement between himself, his wife and the husband, being a document prepared by YY lawyers, he was also asked whether he had ever asked them to prepare a document evidencing his and his wife’s interest in the X Street property. I accept his evidence to the effect that he “didn’t have any clue of this question because it didn’t even pass into my mind – something like that to my mind.” Again, I consider this response to be completely consistent with the relationship between Mr Canvil and the husband.
I also note that, in his Financial Statement filed on 18 April 2015, the husband listed his ownership in the X Street property, but asserted that his share in the same was “0%.”
Included in the submissions made by Counsel for the wife in urging that the Court conclude that the husband and the Second Respondents had each failed to rebut the presumption of advancement was that, in contrast to the documented loan transactions between the husband and the Second Respondent, the title to the X Street property does not reflect any beneficial interest in favour of the Second Respondents. Whilst this is self-evident, I am not persuaded that this is determinative of the issue; rather, I consider that the context and timing of each of these events (namely, the acquisition of the X Street property and the establishment of the loan agreement and subsequent recording of funds advanced to the husband following the same) are fundamentally different.
In Calverley v Green[22] Gibbs CJ said:
Where a person purchases property in the name of another, or in the name of himself and another jointly, the question whether the other person, who provided none of the purchase money, acquires a beneficial interest in the property depends on the intention of the purchaser. However, in such a case, unless there is such a relationship between the purchaser and the other person as gives rise to a presumption of advancement, i.e., a presumption that the purchaser intended to give the other a beneficial interest, it is presumed that the purchaser did not intend the other person to take beneficially. In the absence of evidence to rebut that presumption, there arises a resulting trust in favour of the purchaser.[23]
[22] (1984) 155 CLR 242.
[23] (1984) 155 CLR 242, 246.
And further:
However, both the presumption of advancement, and the presumption of a resulting trust, may be rebutted by evidence of the actual intention of the purchaser at the time of the purchase: see Charles Marshall Pty Limited v Grimsley (1956) 95 CLR 353 at pp 364-5. Where one person alone has provided the purchase money it is his or her intention alone that has to be ascertained. … Even if the parties had no common intention, the intentions of each may be proved, for the purpose of proving or negating that one intended to make a gift to the other.[24]
[24] (1984) 155 CLR 242, 251.
I accept that the relevant time for determination of beneficial interests in property is as outlined by Mason and Brennan JJ:
The Court of Appeal correctly took the time of the acquisition of the Baulkham Hills property as the material time for determining the beneficial interests of the parties. The evidentiary material from which the court might have drawn an inference as to the intention of the parties included their acts and declarations before or at the time of purchase, or so immediately after it as to constitute a part of the transaction.[25]
[25] (1984) 155 CLR 242, 262.
I accept that, given the relationship between the husband and the Second Respondents, the presumption of advancement applies. I also accept, therefore, that the imputation is that, when they purchased the X Street property in 1987, the Second Respondents intended to bestow upon the husband a beneficial interest in the same. It is clear, though, that such presumption may be rebutted by evidence that establishes that the Second Respondents had no intention of giving the husband any beneficial interest in the X Street property when it was purchased.
Whilst evidence of a conversation or conversations during which the Second Respondents directly asserted that the X Street property would remain theirs or that they had no intention of bestowing a beneficial interest in the same on the husband would obviously discharge the burden of rebutting the presumption, that is not the only way in which this burden may be discharged.
I accept that the evidence about any discussions between the Second Respondents and the husband prior to the acquisition of the X Street property was limited to the evidence that Mr E Canvil told the husband that they had found a property that they wanted to buy in Sydney, which they liked and that they needed to put it in his name. (my emphasis)
I think it much more likely than not that this “need” was related to a desire to avoid the imposition of taxes which may have occurred if the Second Respondents had been the registered owners of both the Suburb KK property and the X Street property.
I accept that there is no evidence that the Second Respondents and the husband had any discussion to the effect that, whilst his name was to be on the title, it was to remain their property until death or some other specified event, as may well occur in other families.
I consider it much more likely than not that a conversation which included such comments or assertions did not occur because, as Mr E Canvil said, it did not occur to him as necessary or he did not even think to have such a conversation: I accept his evidence that, at the time the X Street property was purchased, he was not questioned by the husband (or W) about his actions or directives; I accept that, at that time, the husband (and W) “did what they were told” by their father. I accept Mr E Canvil’s evidence that he was then the person who was responsible for looking after the family business and finances; I also accept that, at that time, the husband did what he was “asked” (which, given Mr E Canvil’s evidence, I consider to be more likely to have been in the nature of a direction or a request that could not have been refused). I also accept that, consistent with his role in the family at that time as the person who gave the orders, Mr E Canvil did not tell the husband about the advice he had received and that he “just told him” to sign the contract and return it to him. I also accept Mr E Canvil’s evidence during his cross-examination that he trusted his sons and believed that they trusted him.
Whilst it may well be that, in some families, there are conversations during which the child in whose name property is registered as a result of their parent’s purchase of the same and payment of the purchase price and all associated costs explicitly tells their parent that the property will always be that parent’s because the parent paid for it, it is much more likely than not that there are many families in which such a conversation never occurs because of a shared implicit assumption that this is, in fact, the way it is in any event: that is, no-one conceives of there being any other conclusion.
I am persuaded that the family constituted by the husband and the Second Respondents falls into this category. I have arrived at this conclusion having regard to the evidence given by Mr E Canvil about his role in the family, his expectation of his “orders” being followed and what I regard as his clear expectation that he was the person whose role was to direct the actions of the husband (including after he reached majority) – his evidence was such that I consider it perfectly consistent that it would never have occurred to him to have a conversation of the kind adverted to earlier with the husband prior to the purchase of the X Street property and in preparation for the same. I have also taken into account and accepted the husband’s evidence that, in essence, he signed many documents that his father asked him to and that he did so without necessarily asking his father what they were about or the purpose for them.
I also accept the submission made by Counsel for the Second Respondents to the effect that the husband’s actions in signing the two blank Transfers and the blank Power of Attorney after Mr E Canvil asked him to do so constituted an admission by him that the Second Respondents were the beneficial owners of the X Street property because such actions put them in possession of documents that enabled them to deal with the property; I accept that his actions in signing these blank documents when asked demonstrated his belief at that time that the beneficial title to the X Street property “belonged” with the Second Respondents and that the property belonged to them.
I also accept that the evidence establishes consistency in the manner in which the husband approached the issue of his legal title to the X Street property: it is clear that he never sought to mortgage the property, tenant it or sell it; he did not assert that he owned it in support of his wife’s application for a visa, when I think it open to conclude that owning property in Australia would likely have been something which would have been more likely than not to assist in the positive consideration of that application, given the focus that each of the husband and the wife placed in their respective documents on the assertion that family members owned real property in Australia.
For the reasons expressed throughout these Reasons, I have concluded that, at the time the X Street property was purchased, it was the definite intention of the Second Respondents to retain beneficial title to the same and they did not intend to confer on the husband a beneficial interest in the same. I consider that the husband’s actions demonstrate that he did not consider himself to have received a beneficial interest in the property; I am also persuaded that, at the time the X Street property was purchased, the husband simply signed the contract for the same because, having been told that his parents needed to have the property in his name, his father asked him to.
Given the conclusion expressed, I have concluded that the X Street property is held by the husband on a resulting trust for the Second Respondents and a declaration will be made to that effect.
The nett proceeds of sale of the Suburb B Property
The husband and wife bought real property at AA Street, Suburb B (the Suburb B property) for $1,175,000.00 in about July 2007.
I accept that the total cost of its acquisition (inclusive of stamp duty and legal fees and surveyor costs) was likely approximately $1,200,000.00. I accept that the wife contributed the sum of $353,397.30 and that the balance of the funds needed to acquire the property were borrowed from a commercial lender and secured by mortgage registered over the property.
I accept that, whilst there was only one loan obtained, the parties arranged for it to be apportioned between them such that the wife would be responsible for meeting the repayments on 70 per cent of the borrowings and the husband would be responsible for meeting the repayments on 30 per cent of the borrowings.
Whilst the figures of $612,683.40 for the wife and $262,578.60 for the husband are set out in Exhibit “D” (which was intended to be no more than an aide in understanding the burden each of the husband and the wife chose to assume), I note that the wife’s evidence was that she serviced borrowings of $500,000.00 whilst the husband serviced borrowings of $360,000.00. I accept her evidence in this respect and note that the husband’s evidence was consistent with this also.
I also accept that the bank facilities enabled each party to have a separate offset account into which funds could be deposited to offset the interest payable by each of them in respect of their respective apportioned borrowings. I accept that the husband borrowed $100,000.00 from his parents (the Second Respondents) and deposited that sum into the offset account attached to his portion of the borrowings, such that he alone received the benefit of the reduction in the interest payable on the borrowed funds.
I accept that, when the Suburb B property was sold, it was sold for a price that was similar to that which the husband and wife paid to acquire it. I accept that, when the costs of sale were taken into account, a loss was crystallised. I also accept that the husband withdrew the $100,000.00 deposited into the offset account linked to his portion of the borrowings and repaid it to his parents. I think it more likely than not that the wife used some funds, which at some stage were in her offset account, in the acquisition of the property at Suburb C (which is owned by NN Pty Ltd, an entity associated solely with her), in which she and the children continued to live.
I accept that, at settlement of the sale of the Suburb B property, the bank was repaid the total of the funds advanced to both parties (that is, the 70 per cent of the same for which the wife had been responsible and the 30 per cent of the same for which the husband had been responsible) and that the balance – which was then about $249,000.00 - was deposited into trust; I also accept that, as a consequence of an order subsequently made in February 2014, the wife received $40,000.00 from this source, which she applied to pay legal fees.
The wife has also received the entire benefit of the remaining funds because a further consequence of the same order was that she was permitted to deposit the balance into an offset account linked to a loan account in respect of the Suburb C property and, thereby, obtain the benefit of this lump sum, of about $209,444.00, offsetting the balance of the borrowings on which interest is calculated.
The husband proposed that the remaining funds realised from the sale of the Suburb B property be applied to pay all of the children’s expenses (including any outstanding school fees) and any amounts owing to Legal Aid Queensland and any court costs. He also proposed that, after these expenses were paid, the balance be retained and used to establish a trust fund, which both parents could use to fund overseas travel for the children.
Given the manner in which these particular parties to this particular marriage ordered their financial affairs during their cohabitation (both pre and post their marriage) and the manner in which they participated in the financial arrangements associated with the acquisition of the Suburb B Street property, I consider it more likely than not that the balance of the sale proceeds are in fact the property of the wife.
Loan from the Second Respondents to the husband
The husband’s evidence, supported by that given by Mr E Canvil, was to the effect that he had borrowed significant funds (asserted to be in the amount of about $400,926.00) from the Second Respondents and used the same in respect of the purchase of the Suburb B Street property, to pay legal fees, to meet his child support obligation and to pay the costs of the children’s supervised time with him. I accept that the funds loaned to the husband by the Second Respondents included the funds the husband used to pay the mortgage repayments he was required to make on the Suburb B property. I accept that the expenses met by the husband using the funds advanced to him by the Second Respondents were his expense and no theirs.
I accept that the Second Respondents provided the husband with the funds it was asserted that they had.
When it was suggested to him that, when he entered into the loan agreement with the husband, he knew that he had no capacity to repay the loan amounts, Mr E Canvil said “yes and no”: he went on to explain that he has two sons and that he had always said that he would help them at any time they needed help; it was suggested that the loan agreement was really a record of what he had advanced to one of his sons; when it was suggested to him that, when he entered into the loan agreement with the husband, he never had any intention of requiring him to repay the loaned amounts, he said: “Why not?”; when it was suggested that he had never called for the repayment of the money, he said: “not yet.” He also said that “one day we decide what to do with that loan”.
I also note that, when it was suggested to Mr E Canvil that he had no current intention of asking the husband to repay the funds loaned to him - because his son had no capacity to repay the same - Mr E Canvil said, in essence, that one day his son would be free from the saga of legal proceedings and would be able to resume his work, which he described him as having done very successfully when the family was living in Sydney.
Given the relationship between the husband and the Second Respondents; the fact that they have not ever sought the repayment of the funds they previously advanced to the husband; Mr E Canvil’s evidence to the effect that he would help both of his children if they needed assistance; the manner in which the Second Respondents have been content to manage the loan to Mr W Canvil; the Second Respondents’ ages; and the Second Respondent’s own financial circumstances (which I accept enabled them to advance the loaned funds to the husband without requiring their repayment as at the time of the hearing), I think it highly unlikely that they will ever ask the husband to repay the same. I think it even more unlikely that they would ever take action against the husband to recover the same, even if he owned property which could be used to meet any judgment that they might obtain.
The asserted add backs
Counsel for the wife submitted that the Court should notionally add back the amount the husband withdrew from the offset account and remitted to his parents. The husband said, when cross-examined about his withdrawal of the $100,000.00 from his offset account, that he used those funds to make a contribution toward the costs associated with the family’s relocation from Sydney to the Region D and to pay his share of the shared expenses and toward meeting the costs of the children’s education. He later said that he “probably” also met some of the costs of supervision from this source also. Whatever the use to which these funds were put, it is clear that they were not sourced from the wife’s earnings but originated from the Second Respondents.
The husband submitted that the funds used by the wife toward her legal expenses, sourced from the sale proceeds of the Suburb B property, should also be notionally added-back as property already taken by the wife.
Whilst it has been said that the notional adding back of property no longer in existence is an exception rather than the rule in property settlement proceedings,[26] such assertion must be considered in the context that, in Lovine v Connor,[27] the Full Court noted[28] that, within the exercise of the overall discretion to determine just and equitable property orders in the exercise of the discretionary jurisdiction conferred by s 79 of the Family Law Act 1975 (Cth) (“the Act”), the resolution of a dispute about notional add-backs is not determined by the application of fixed legal rules; whilst guidelines have been formulated over time in a number of well-known authorities,[29] these do not constitute binding rules of law and the exercise is one of “a discretion within a discretion”: that is, a discretion about the manner in which the issue of the notional adding-back of property no longer in existence is to be treated, within the overarching discretion of determining just and equitable orders pursuant to s 79 of the Act.
[26] Marker v Marker [1998] FamCA 42; Cerini v Cerini [1998] FamCA 143, [46]; Omacini v Omacini (2005) FLC 93-218, [39]; Kouper & Kouper (No 3) [2009] FamCA 1080, [107].
[27] (2012) FLC 93-515.
[28] At [101] – [103].
[29] Such as: Omacini v Omacini (2005) FLC 93-218; DJM v JLM (1998) FLC 92-816; In the Marriage of Townsend (1995) FLC 92-569; In the Marriage of Kowaliw (1981) FLC 91-092; Brown v Green (1999) FLC 92-873; Chorn v Hopkins (2004) FLC 93-204; Cerini v Cerini [1998] FamCA 143; Polonius v York [2010] FamCAFC 228.
I consider that the “overarching discretion” of determining just and equitable orders between the husband and the wife can best be discharged by declining to add-back notionally the funds repaid by the husband to his parents. Consistent with what I consider to be the underlying theme of more recent authority,[30] with which I agree, I intend to consider this issue when considering other relevant s 75(2) matters. Similarly, in the circumstances of this case and noting again the manner in which these two parties to this marriage ordered their financial affairs, I decline to accede to the proposal that I should notionally add-back the funds used by the wife to meet some of her legal expenses where these funds were sourced from the sale proceeds of the Suburb B property.
[30] Such as: Bevan v Bevan (2013) FLC 93-545 per the plurality at [79] and per Finn J at [160]; Baglio v Baglio [2013] FamCA 105 per Murphy J at [186]; Harper v Harper [2013] FamCA 528 per Macmillan J at [63] - [64].
Conclusion about the property of the parties and its value
Save for those matters discussed above, the parties were generally agreed about the values of the property and superannuation interests.[31] Incorporating the findings I have outlined above with the agreed values to be accorded to the property of the husband and the wife, I find their respective interests in property and, on the evidence before me, the value of the same to be as follows:
[31] Balance Sheet filed by the Wife on 12 February 2016.
| Item | Ownership | Description | Value |
| 1. | Wife | RR Street, Suburb C QLD owned by NN Pty Ltd (associated solely with the wife) | $700,000.00 |
| 2. | Wife | Z Bank Accounts #...02, #...24, #...08 (estimate) | $24,033.00 |
| 3. | Wife | NAB Account ending in ..99 – GG Pty Ltd – wife’s company | $206.00 |
| 4. | Wife | Net Sale Proceeds of Suburb B NSW Property) Z Bank offset account #...80 (estimate) | $209,444.00 |
| 5. | Wife | Company JJ Share Portfolio (estimate) (73,093.00 British pounds) | $149,294.00 |
| 6. | Wife | GG Pty Ltd (comprising vehicle, plant and equipment as per valuation) | $195,973.00 |
| 7. | Wife | Household contents (estimate) – valued as at 13 June 2015 | $17,650.00 |
| 8. | Wife | Jewellery (engagement ring) and wedding band (estimate) | $6,750.00 |
| 9. | Wife | Boat (estimate) – valued as at 13 June 2015 | $16,500.00 |
| 10. | Wife | Motor vehicle 1 - valued as at 13 June 2015 | $18,000.00 |
| 11. | Wife | Motor vehicle 2 - valued as at 13 June 2015 | $42,000.00 |
| 12. | Husband | Z Bank … Account #...19 | $870.00 |
| 13. | Husband | Z Bank Account … Account # …14 | $1,847.00 |
| 14. | Husband | Shares in Company VV and AFG (estimate) | $63,638.00 |
| 15. | Husband | Jewellery | $320.00 |
| 16. | Husband | Motor vehicle 3 Registration No. … (estimate) | $9,000.00 |
| 17. | Husband | Household contents (estimate) | $3,300.00 |
| 18. | Husband | Sailing Dinghy | $500.00[32] |
| 19. | Joint | Z Bank Account – Express Freedom Joint #...91 | $1.71 |
| SUPERANNUATION | |||
| 20. | Wife | Super Fund 1 ATF Merle Family Superannuation Fund | $336,720.00 |
| 21. | Husband | Super Fund 2 | $45,257.00 |
| 22. | Husband | Super Fund 3 | $18,399.00[33] |
| LIABILITIES | |||
| 23. | Wife | Mortgage RR Street, Suburb C - NN P/L with Ms Merle as Guarantor (estimate as at 1 February 2016) | $543,511.00 |
| 24. | Wife | Z Bank Credit Card | $4,807.00 |
| 25. | Wife | SS Bank Credit Card | $1,485.00 |
| 26. | Husband | Z Bank Visa Card | $2,470.00 |
| 27. | Husband | Fee-Help (Commonwealth Education Assistance)[34] | $20,259.00 |
[32] The husband’s value is accepted.
[33] The husband’s last disclosed Statement - Affidavit of Husband filed 12 December 2013, Annexure B.
[34] Financial Statement of Husband filed 18 April 2015 at [53].
In addition to the above, the wife also anticipated incurring about $50,000.00 in association with her mother’s application for a residency visa and the husband, at one stage at least, advanced that he had an additional liability associated with orthodontic treatment he received after separation. It is uncontroversial that the husband’s education liability to the Commonwealth was also incurred after separation and the purpose of its inclusion above is simply to show the existence of his liability to a non-related party.
Financial and non-financial contributions to the acquisition, conservation or improvement of property prior to separation
I accept that, when the husband and the wife commenced their relationship, the wife was working at a hospital in the United Kingdom. I accept that her income at that time was significantly superior to that of the husband – a position that was maintained through-out the course of their cohabitation and marriage and which has persisted since their separation. I accept that it is much more likely than not that, when they met, the husband was being at least partially financially supported by his parents.
I accept that the husband and wife commenced cohabitation when he moved to live with her in a residence she had acquired in her sole name prior to the start of their relationship. I accept that she had been able to acquire this property as a result of her mother’s provision of some financial assistance.
I think it much more likely than not that, when they commenced their cohabitation, the wife owned more property than the husband and I accept that, in addition to the real property already mentioned, she also owned a car, the furniture and chattels with which her property was furnished and the shares which she still owns. Given that this aspect of her evidence was not challenged by the husband in his cross-examination of her, I accept that, not long after they commenced their cohabitation, the wife bought a motor vehicle for the husband to use; I accept that she was the person who made the repayments associated with the acquisition of this vehicle.
I think it more likely than not that, after their cohabitation, the wife met the majority of the parties’ expenses: I accept that she paid for the cost of utilities and the council expense associated with her ownership of her property and that she paid for their entertainment expenses; I also accept, though, that they contributed equally to their grocery expenses. I consider that the manner in which the husband and wife met such expenses was the consequence of the fact that he never really earned anything of significance during their relationship; she said that he had always had money advanced to him by his parents.
I accept that it seems as though the husband studied for approximately 18 months in 2004 and 2005 and tried (unsuccessfully) to establish a wine sales business; there is nothing to suggest that the wife made any financial contribution to this venture and I accept that it was financed by his parents.
I accept that, after the wife fell pregnant with L in 2005, she took paid leave from about September/October 2005 until August 2006; I accept that, from about November 2005, the parties and then L lived with the wife’s mother in Country O - I accept that the maternal grandmother assisted in L’s care. I accept that, after the family returned to the United Kingdom in mid-2006, the wife returned to work part time: initially for three days per week (during which L attended day-care) and, later, for four days each week (during which L attended day-care for three days and was cared for by the husband on the other day).
Whilst the wife said, in effect, that the husband had had the capacity to work and earn money (just as she did and had), she also accepted (in essence) that, whatever his capacity, it was one that he had never used to its fullest. She also said that his promise that he would utilise his working capacity was a promise he had made to her in furtherance of their decision to relocate to live in Australia in early 2007.
The wife asserted that the family decided to move to Australia to improve the husband’s career mainly. However, I think it is also clear, given the contents of her email to a colleague in April 2007 wherein she outlined that “because of poor consultant job vacancies” she had decided to “explore the possibilities abroad and have extra year as rehab registrar whilst exploring further career possibilities in Australia”, that she had identified at least the prospect that her employment and career prospects might have then been better in Australia than in the United Kingdom. Other aspects of this email certainly suggest that she thought that working in Australia was beneficial – for example, she also said that she was having a great time working there and that she would recommend Australia to “anyone who is also struggling finding a consultant position to consider the same.”
On balance, I think it more likely than not that the decision to relocate their family from the United Kingdom to Australia was a combination of factors, which included the hope that the wife would find employment of the kind that she was seeking in her career and that the husband’s family lived in Sydney.
It is accepted that the wife met Mr PP, (described by the husband as either the Chief Executive Officer of the OO Group or the Chairman of Company OO) and an acquaintance of the paternal family, on her wedding day. The husband asserted that this introduction in some way enabled her to obtain the employment she first undertook after their family moved to Australia and that, consequently, he should be regarded as having contributed to her career progression. Such contention needs to be assessed having regard to the wife’s qualifications when she and the husband first met, her work subsequent to that before moving to Australia and the fact that she was required to undertake further studies here in order to have her qualifications recognised here. I accept that, after the relocation, the wife continued to work to advance her career and that she did so by doing what she was required to do in order to have her qualifications recognised in Australia.
I accept as likely that meeting Mr PP may well have given the wife the idea to investigate whether there were prospects for her within the OO Group; I accept that, after her researches revealed a job at a hospital operated by the group, she applied for the same; I accept her evidence to the effect that Mr PP probably would have or might have provided her with a character reference and that she thought he may have provided her curriculum vitae to the hospital; I accept that she was successful in her application and that she was happy to obtain that employment. Whilst it may well have been that the provision of a reference and her curriculum vitae assisted her application, the reality is that, absent her qualifications and experience, the wife would not have obtained the employment that she did. I am not persuaded that it was only by meeting Mr PP as a result of the paternal family’s connection with him that the wife was enabled to obtain the employment that she did; I am not persuaded on the evidence that the husband has established that, but for meeting Mr PP at a social function, the wife would not have obtained the employment that she initially did at a hospital within the OO Group within about two weeks of arriving in Australia.
I accept that, after their arrival in Australia, the husband took up a position as marketing manager for an entity controlled by his parents. I also accept that the family initially lived with the extended paternal family.
I accept the wife’s evidence that, after she and the husband moved to live in Australia, they jointly contributed to meeting the rent, electricity and telephone bills: she said that “it was complete fifty-fifty” and that the joint account they had was simply the means by which they could accumulate their funds into one account from which monies were then withdrawn to pay the bills; I accept that this sole joint account simply provided the means by which the parties could record their pooling of funds from which they met these joint expenses.
The Suburb B property
I accept that, as part of their joint plan to relocate to live in Australia, the wife’s real property in the United Kingdom (to which the husband had made no financial contribution and which the wife retained in her sole name) was sold and realised approximately AUD$366,908.00.[35] I also accept that the maternal grandmother provided the wife with additional funds such that, at the time the Suburb B property was purchased, the wife had approximately AUD$525,000.00 in bank deposits.
[35] Being, in a sense, the accumulation of an original sum of about 100,000 euro which her mother had provided to her in about August 2001 and the profit from the sale of real property she had used these funds to acquire.
I accept the wife’s evidence to the effect that her mother provided her with these funds (and the funds she had earlier provided which were applied to the purchase of the real property in the United Kingdom) on the basis of an agreement or expectation that she would care for her physically and emotionally as she ages and meet her expenses during that portion of each year during which she lives with the wife and the children in Australia and that she would sponsor and fund her mother’s application for residency in Australia. The conditions associated with the gifts made by the maternal grandmother are a relevant consideration in assessing the benefit to the wife of the provision of the funds.
There is nothing in the evidence to suggest that the funds were gifted to both the husband and the wife jointly on the basis of any expectation as to future events or on any basis at all.
I accept that the wife applied $353,397.30 of these total funds toward the purchase of the Suburb B property and that the balance required to fund its acquisition was obtained by borrowings of about $875,262.00 - which borrowings the husband and the wife agreed would be split as between them such that the husband was responsible for 30 per cent of the same (and the repayments on this amount) and the wife was responsible for 70 per cent of the same (and the repayments attributable to this amount).
I accept that the husband’s financial contributions to the acquisition and conservation of the Suburb B property were that he accepted responsibility for 30 per cent of the borrowings needed to acquire it and that he caused the monthly repayments on such amount, less the $100,000.00 he borrowed from his parents and deposited into the offset account linked to his portion of the borrowings, to be made. I also accept that the wife caused the monthly repayments on “her share” of the borrowings (offset by whatever amount stood in her offset account at the relevant time) to be made.
Counsel for the wife conceded that the husband may in fact have borrowed more than $262,000.00 and met the repayments on more than $162,000.00 given that the parties had agreed to hold the Suburb B property in the ratio of 70/30 in the wife’s favour and that she had contributed $335,000.00 (which meant that her borrowings would have been about $100,000.00 less and the husband’s about $100,000.00 more in order to achieve the agreed ratio).
I accept that the wife also established an offset account for her own benefit; I think it likely that the balance of the funds which remained after she committed $353,397.30 to the purchase of the Suburb B property was deposited into this offset account and, subsequently, supplemented by her earnings. It was accepted that the wife subsequently withdrew funds (in the amount of about $500,000.00) which had been deposited over time into the offset account linked to her loan account in order to purchase the Suburb C property in which she and the children live.
Whilst the wife did not accept that the husband borrowed the funds he used to meet “his share” of the mortgage repayments, she accepted that he caused those repayments to be made from a source other than her income.
The parties’ relocation to the Region D
I accept that, in January 2009, the wife relocated with L to the Region D to commence work at a hospital. I accept that they initially lived in rented accommodation before the wife funded the acquisition of the Suburb C property in early 2010. I accept that the husband made no financial contribution to this acquisition. This is a further example of the manner in which the parties kept their finances completely separate.
I accept that, after the relocation to the Region D, the husband divided his time between Sydney (where he continued to work) and the Region D. I note that the wife asserted that the husband would travel from Sydney to the Region D at weekends (namely, from Saturday afternoon until Monday or Tuesday morning) and that, whilst there were times when this happened on consecutive weekends, there were also times that the husband did not travel to the Region D. I note that the husband asserted that, between 2009 and 2012, he spent an average of 60 per cent per year of his time as “family time” and “holiday time.”
There is no suggestion that either the husband or the wife made any direct financial contribution to the other’s financial affairs after they separated: the wife continued to work as she had since the relocation to the Region D and continued to be responsible for causing the costs associated with the Suburb C property to be met; the husband took on the responsibility of paying for his own accommodation.
I accept that, for a period after their separation, the husband continued to abide the agreement which had operated during their relationship and continued to pay half of the children’s education expenses; I accept that, at one stage, he offered to pay half of specified expenses by direct payment to the providers of the same and to pay $100.00 per week (reduced from the $200.00 per week previously paid on the basis of his proposed direct payments) into an account from which the children’s costs could be met. I accept that the agreement struck during the relationship ceased to be implemented after the wife applied to the Child Support Agency and the husband was told that he was not required to pay anything more than the assessed child support amount.
Contribution to the welfare of the family including in the capacity of homemaker or parent (both during cohabitation and after the later 2011/early 2012 separation)
As noted earlier, I accept that from about November 2005, the parties and then L lived with the wife’s mother in Country O and that, after his birth, the maternal grandmother assisted with his care. I also accept that, after the family returned to the United Kingdom in mid-2006, the wife returned to work part time: initially for three days per week (during which L attended day-care) and, later, for four days each week (during which L attended day-care for three days and was cared for by the husband on the other day).
I accept that, after the family moved to live in Australia (and the wife commenced work at the hospital and the husband commenced work in the business owned by his parents), L attended day-care for five days per week. I accept that the wife mostly dropped him to and from day-care. I also accept that the husband contributed to this task and, at various times, cared for L whilst the mother attended to work obligations or other personal matters. I accept that, on occasions after the wife moved to the Region D, the husband assisted with transporting L on some Mondays when he was there.
I accept that, after the family moved to live in the Suburb B property, the maternal grandmother visited them and spent about thirteen months living with them during the time that they lived there. I accept that, when she was living in the house, the maternal grandmother assisted the wife and the husband to care for L and also with various household chores. I accept that, at various times, her presence supported both parents in enabling them to undertake various pursuits. I accept that the maternal grandfather also provided assistance. I accept that, when one or other of the maternal grandparents were not visiting Australia, the husband and wife were assisted at various times by au pairs who assisted with L’s care and performed various household tasks.
I accept that, at various times during their cohabitation, the husband assisted to care for the children while the wife was at a medical conference; I also accept that her parents assisted with the care of the children (particularly when the wife and husband were unable to locate/employ an au pair or a nanny) as did the various au pairs[36] that were engaged at various times.
[36] No. 1 (who was engaged between August and November 2007); No. 2 (who was engaged between about August 2008 and March 2009); No. 3 (who was engaged between April 2009 and mid-August 2009); No. 4 and No. 5 (who were engaged for a total of about 25 weeks until June 2010); No. 6 (a nanny, was engaged between August 2010 and January 2011)
I accept that, on occasions during their cohabitation, the husband took the children to medical appointments and, for example, stayed overnight with L at the hospital when the child had his tonsils out; I accept that the husband also cared for the children on occasion when the wife worked on weekends and the paid employee was unable be present due to her own medical issues; I accept as more likely than not that, on occasion, he collected L from day-care.
Overall, I accept that the wife has provided or been responsible for ensuring the provision of the vast majority of care for the children; I accept that she has done this either personally or has been significantly assisted by the children’s maternal grandparents and, later, Ms QQ, her practice manager. Her obligations in this respect obviously increased during those period that the children’s time with their father occurred on a limited supervised basis.
Relevant s 75(2) matters
The husband works as business manager for CC Pty Ltd; this entity conducts the business previously conducted by XX Company; the business done by CC Pty Ltd is electrical, whilst the core business of the entity DD Pty Ltd was, at one time at least, property.
The Second Respondents are the sole directors of DD Pty Ltd. According to the financial statements, the profit available to members of DD Pty Ltd was a little over $1,400,000.00 in FY2015 and $1,070,000.00 in FY2014. It appears that the company previously owned four commercial properties but sold two of these – which Mr E Canvil said likely accounted for the quantum of available profits during at least one of these years – an explanation I certainly accept as quite possible. Mr E Canvil, who accepted that he was owed $1,572,000.00 by the company, said that it had had to sell two properties because they had significant expenses, which included the husband’s legal fees.
I accept that, as at the hearing, the husband conducted the business of CC Pty Ltd, whether he was in Sydney or the Region D and that he did so by simply using his computer wherever he was. I accept that he, like his brother, were employed by DD Pty Ltd; I accept that, according to his most recent Financial Statement[37] he was then paid $1,072.00 per week and that DD also paid his telephone bill and for his internet and his fuel. He said that this occurred because he was engaged in doing maintenance work for clients and that this was the extent of the work he had done for the CC Pty Ltd business since 2011. He also had the use of a credit card facility that was paid by the company; he said that DD Pty Ltd paid for a “Rich Dad Coaching” course, in a total amount of about $3,051.60 (which was incurred between about November 2015 and February 2016. He rented an apartment at the Region D at a cost of $465.00 per week; he donated about $20.00 per week to his church and about $48.00 per month to World Vision to support a child in India.
[37] Exhibit 9.
Given their history of advancing funds to the husband and Mr E Canvil’s evidence about helping his children if they ask for help, it is certainly more possible than not that, if needed, Mr E Canvil would be able to call on them for financial support as he has clearly done at various times in his life.
Even if, as was advanced by Counsel for the wife, the husband was under-utilising his earing capacity as at the hearing, I consider that that appears to have been the case for the entirety of his working life; I am not persuaded that this is a case where marital separation coincides with an unexplained diminution in earnings: rather, even on the wife’s evidence, the husband has never worked to a capacity that she considers him capable of. Since his return to Australia in early 2007, he has only worked in the family company and, prior to that, he studied or unsuccessfully attempted to start his own business (supported by the family business).
Whilst the husband said that, in about the first quarter of 2011 (which was prior to the separation), he brought in about $200,000.00 worth of projects to the CC Pty Ltd business, he also accepted that the company had only broken even in respect of the same and had not made any profit. He explained the absence of projects after the marital separation to the impost of acting on his own behalf in the litigation.
I note that the husband accepted that, once the litigation ended, he would have a lot of spare time on his hands: he said he intended to develop the electrical business; in furtherance of that he had been studying a Masters at UU University.
Given his work history, I accept the husband’s evidence that it had never crossed his mind to apply to work for any entity or person other than CC Pty Ltd or DD Pty Ltd; given his work history and his age and his attitude, I also suspect he would now find it very difficult to find employment outside the family business. It appeared that his thoughts about future income earning opportunities then cantered around the possibility of applying for government grants associated with research into lighting.
The husband accepted during his cross-examination that the Second Respondents were then paying the child support he had been assessed by the Child Support Agency to pay to the wife; he said that he was borrowing the money from them to make these payments; he also said that they paid the costs associated with supervision (the cost of Ms P) on the same basis: namely, that they paid and it was regarded as money he borrowed from them; he said that this was the same arrangement he had with them in relation to some of the legal fees he had incurred. It is clear that he does not have the capacity to repay such funds and I have already expressed my conclusions about the loaned funds.
It was submitted that the loans between the husband and the Second Respondents represented his actual earning capacity; that they were reflective of his true earning capacity, in that whatever funds he needed, he obtained from his parents. I am not persuaded that the quantum of the funds advanced to the husband by the Second Respondents should properly be characterised as his earning capacity; rather, I consider it more appropriate to regard the Second Respondents as a financial resource from which the husband has been able to obtain assistance.
It is clear that, as a healthcare professional, the wife’s earning capacity is overwhelmingly superior to that of the husband; her income is exponentially greater than that of the husband’s: for example, he said during his cross-examination that, in 2012, her business “did $608,000.00” and she paid herself a salary of $402,000.00, whereas his income has been no greater than about $50,000.00 per annum.
Given the determination I have arrived at in respect of the X Street property, the wife’s asset position is significantly superior to that of the husband; whether that remains the case given the respective ages of the Second Respondents and that he is one of their two children, remains to be seen; a further potential issue in respect of the quantum of any inheritance the husband might untimely receive is any cost impost on the Second Respondent’s own financial resources which might be associated with the issue of Ms F Canvil’s medical condition. There is no evidence in respect of such issues but they seem to me to be obvious possibilities.
Is it just and equitable to make any orders altering the husband and wife’s interests in property?
Whilst one of the consequences of the voluntary separation of the husband and wife some years ago is that they no longer enjoy “the common use of property and superannuation in which their existing legal and equitable interests were acquired during cohabitation”, it must also be remembered that “community of ownership arising from marriage has no place in the common law”[38] and that the exercise of the discretion conferred in property settlement proceedings must not proceed on an assumption that the parties’ interests in the property are, or should be, different from those determined by common law and equity.[39]
[38] Stanford v Stanford (2012) 247 CLR 108, [39] citing Hepworth v Hepworth (1963) 110 CLR 309, 317 per Windeyer J.
[39] Bevan v Bevan (2013) FLC 93-545, [73].
Further, it is clearly established that the breakdown of a marriage does not axiomatically result in the making of an order altering the existing legal and equitable interests in property of the parties to it and that an order will be made at all is not something that can be assumed.
It is also clearly established that the determination of whether it is just and equitable in the circumstances to make an order altering the interests of either party to the marriage in the property owned by that party is separate from, and not to be conflated with, the separate question of the justice and equity of what orders should be made, if it determined that it is just and equitable to make orders.[40]
[40]Stanford v Stanford (2012) 247 CLR 108, [35].
It is perhaps trite to note that that the determination of whether it is just and equitable in the particular circumstances of a particular marriage to make an order and, if so, the terms of such order which, in the circumstances, is just and equitable, obviously involves a consideration of the circumstances and/or characteristics of the relationship between the husband and the wife.
In this case, it is accepted that, subject to the manner in which they agreed to arrange the purchase of real property at Suburb B (discussed above), the husband and wife maintained separate finances through-out their cohabitation. This approach did not change after they married: as the wife said during her cross-examination, their finances had always been “split.” She said that she had no idea about the husband’s finances and that they had always had “separate finances.” She said that, during their relationship, they maintained completely separate finances and both contributed monies to meeting joint expenses - her unequivocal evidence was that there was no intermingling at all of their finances and each party had their own separate bank accounts.
That the wife so clearly regarded she and her husband as maintaining completely separate finances illuminates how the lone joint bank account they had should be regarded: I accept that it was simply a vehicle by which the husband and wife managed the practicalities of their joint decision that, at least after their January 2007 relocation to Australia, they contribute equally to the payment of household expenses such as rent, electricity and telephone and the costs associated with the children’s care. I accept the wife’s explanation to the effect that, if she had to pay a household bill, she would tell the husband that she needed a certain amount of money from him and he would provide it; she would deposit the same amount into the joint bank account and then pay the bill/s from it. Given this, I consider that the joint bank account existed only in order to permit both the husband and wife to deposit funds into it (and thereby record their pooling of funds for the purpose of equally meeting household expenses) for the sole purpose of enabling household bills to be paid from it; it was only “created” for the purpose of enabling them to facilitate their completely equal contribution to the payment of household expenses.
I find that, from the inception of their relationship and continuing during their marriage, the husband and wife kept their entire financial circumstances completely separate to the extent that they even accounted to each other to the extent of contributing equal funds to meet household expenses. The wife caused the acquisition of the Suburb C property in a manner that was exclusive of the husband and he did not make any financial contribution to the same.
Having regard to how these two parties to this marriage conducted their affairs during their cohabitation and subsequent marriage and the conclusion I have reached about the X Street property, I am not persuaded that it is just and equitable in the circumstances to make an order altering the existing legal and equitable interests of each of them in property. I have arrived at this conclusion because:
a)I am not persuaded that this is a case where the relationship between the husband and the wife was based was on “… express and implicit assumptions that underpinned the existing property arrangements …”: rather, I consider their relationship to have been very much one within which they lived essentially independent financial lives; and
b)save for the lone joint bank account used only for the purpose of facilitating their equal contribution to the payment of household expenses after they moved to live in Australia in January 2007 until their separation, the husband and the wife maintained separate bank accounts; and
c)neither the husband nor the wife applied income that either earned to the support of other, save for them contributing equally to meeting joint household expenses as outlined above; and
d)the Suburb C property in which the wife and the children continued to reside after the parental separation was acquired during the relationship by an entity controlled solely by the wife and the husband made no financial contribution to the acquisition, conservation or maintenance of the same – the wife is the sole guarantor in respect of the borrowings obtained to fund the purchase of the same; and
e)the funds standing to account in the bank accounts of each of the husband and the wife are the result of their individual labours and contributions and are in no way the consequence of any financial support provided to the owner of the same by the other party to their marriage; and
f)neither party made any financial contribution to the acquisition of the equities owned by each; and
g)each of the husband and the wife arranged any borrowings or credit facilities to the exclusion of the other, such that they do not share in any indebtedness to a commercial credit provider.
Whilst Counsel for the wife submitted that I should be persuaded that it is just and equitable to make orders because the parties mixed funds in relation to the purchase of the Suburb B property, I consider that even that purchase was kept separate in that their agreement was that each would be responsible for a different proportion of the borrowings: the wife for 70 per cent of the same and the husband for 30 per cent of the same; each had their own offset account into which each deposited funds that each had separately sourced – the husband from the Second Respondents and the wife from her earnings and savings; each received completely any benefit that occurred as a result of the funds deposited into their respective offset accounts and there was not even any intermingling of the benefits obtained from offsetting funds - even that was maintained completely separately.
I understood Counsel’s submissions really to be that the only event that would persuade that it is just and equitable to make an order is that the wife alone bore the capital loss which arose as a consequence of the fact that the parties sold the Suburb B property for about the same price as they paid to acquire it. However, such a result does not seem to me to axiomatically require a conclusion that it is just and equitable for there to be any orders.
I consider that these parties deliberately and consistently approached the way in which they managed their personal finances in an extremely businesslike manner; neither appeared to extend the other any leeway when it came to the requirement that each contribute equally to the payment of household expenses from January 2007 until their separation; neither sought to provide the other with any benefit from their respective funds in terms of offsetting benefits.
Given the evidence about their shared approach to the absence of financial intermingling, I have no doubt in concluding that, if they had in fact made a profit from the sale of the Suburb B property, each would have received their proportionate share of the same: that is, the wife would have received 70 per cent of the profit and the husband 30 per cent. I have no doubt whatsoever that the wife would have regarded such funds as being entirely her property; I am not persuaded at all that she would have sought to depart from the agreement to ensure that the husband received more than that to which he would have been entitled by virtue their agreement that he would be responsible for 30 per cent of the liability and pay the interest associated with this.
Given the history of their very business-like approach to finance, I am also persuaded that both fully appreciated the manner in which they determined to purchase the Suburb B property: after all, the wife knew at the time that the husband’s income was significantly inferior to hers and she knew that she had already made the significantly greater financial contributions during their shared life together prior to the acquisition of the Suburb B property.
Whilst the husband also sought to receive the return of a laptop, sailing cloths, eight solid silver tumblers belonging to the paternal grandmother, Country L media items and DVDs (for the education of the language to the children), books of significant value, the photo-negatives to all the wedding pictures and at least one of the large wedding photo albums and either the original or a copy of all family videos made during the course of the relationship (with the wife to nominate whether he is able to retain the original video/s or copy them and return them to her), I am not persuaded in the circumstances that it is just and equitable to make orders to facilitate his receipt of the same. In arriving at this conclusion, I have taken into account the effluxion of time and the wife’s evidence to the effect that she was happy for the husband to be provided with items of Italian media/ DVDs (once particularised) and that she appeared happy enough to enable the husband to obtain copies of various family videos: her real issue was about the practicalities of having such documents copied.
For the reasons outlined above, I am not satisfied in all the circumstances of this case that it is just and equitable and appropriate that orders be made adjusting the existing interests of the parties in their property and superannuation interests.
Child Support Departure
I accept that the wife’s solicitors provided notice to the General Manager, Child Support Smart Centres within the Department of Human Services of her intention to seek to a departure order in relation to the existing Child Support assessment and served a copy of the Further Amended Initiating Application (filed 8 February 2016) on the same.
By way of summary, the wife sought to depart from the Child Support Assessment in place at the time of the hearing: she sought that orders be made to require the husband to pay the sum of $150.00 per week per child by way of child support (with this amount to be indexed and reviewed annually and varied by increases equivalent to the CPI (All Groups) Brisbane) and also that he be required to pay half of the children’s education expenses (including tuition, book, stationery and uniform requirements) and half of the costs of them participating in extra-curricular activities and half of the cost of the children’s medical and/or dental care, wheresoever the cost is not covered by Medicare or the private health insurance and half of two-thirds of the cost of their health insurance premiums.
She did so on the basis that she asserted that the husband was able to earn more money than what he represented; her evidence, in essence, was to the effect that she thought he could afford to pay the amounts she sought in her departure application.
Given my determination about the X Street property, my findings about the extent of the husband’s property and value of the same (as set out above), the passage of time and the potential impact of such time on the quantum of the children’s expenses and the parties’ respective financial situations, the possibility of the husband at some stage in the future inheriting property of not-insignificant value and that the final parenting orders now made have significantly changed the time within which the children will be in the father’s care (and, therefore, that he will be required to meet their day to day expenses at the very least), I am not now satisfied that it would be in the interest of the husband and the wife for the Court to consider whether an order departing from the administrative assessment of child support should be made and I decline to do so.
Embryos
Both children were conceived using in vitro fertilization. Some embryos remain in frozen storage. The husband and wife entered into a contract with BB Service Pty Ltd on 18 September 2008 for freezing and storage of embryos for a period of up to five years: that period expired on 18 September 2013. Despite this, BB Service advised that it would continue to provide the freeze storage for the embryos until the finalisation of the proceedings. I accept it did so because the husband and the wife were unable to reach agreement about what was to happen with the remaining embryos.
I accept that the wife informed BB Service on a number of occasions that she wanted them to cease providing the freeze service to the embryos, whereas the husband advised them not to do anything until the proceedings had been completed. I accept that, at least at one stage, his proposal was that the embryos be donated, a course with which the wife did not agree.
I accept that the husband clearly regarded the embryos as F’s siblings, because she was chosen from the same group of embryos.
I note that, after being asked about its position, BB Service advised that, if a decision was made to empower the wife to provide the necessary notice to it to allow the thawing of the embryos - without the necessity of seeking that the husband provide any consent to that course - it would consider that it could comply with a subsequent direction coming from her alone.
I consider it appropriate that the wife be authorised to act as the husband’s agent in relation to the issue of the proposed thaw of the remaining frozen embryos; and that any person or facility be authorised to act on her sole request for the same. In that way, she will be able to authorise this, whilst the husband will not be required to agree to something which I accept he feels strongly emotionally about. In order to ensure that BB Service is not placed in a position of uncertainty, the husband will be restrained from providing written instructions to it seeking to prevent the entity from acting on any written instructions provided by the wife in relation to the cessation or termination of the freeze-storage of the remaining frozen embryos.
For the reasons expressed above, I make orders in the terms outlined at the commencement of these Reasons.
I certify that the preceding one hundred and sixty-five (165) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 1 February 2019.
Associate:
Date: 5 February 2019
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