Carevic & Carevic
[2023] FedCFamC2F 524
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Carevic & Carevic [2023] FedCFamC2F 524
File number(s): PAC 3667 of 2019 Judgment of: JUDGE OBRADOVIC Date of judgment: 8 May 2023 Catchwords: FAMILY LAW – PROPERTY – whether the wife was the subject of family violence – Kennon & Kennon claim – whether the wife’s contributions were made more arduous due to domestic and family violence – whether the husband wasted assets through gambling – whether there should be an adjustment to the wife in respect of husband’s waste – assessment of contributions – credibility of witnesses – Jones v Dunkel inference Legislation: Family Law Act 1975 (Cth) ss. 75(2), 79 Cases cited: Bevan & Bevan [2013] FamCAFC 116
Britt & Britt [2017] FamCAFC 27
Chapman & Chapman [2014] FamCAFC 91
Horrigan & Horrigan (No.2) [2018] FamCA 937
Jones v Dunkel [1959] HCA 8
Kennon & Kennon [1997] FamCA 27
Russell & Russell [1999] FamCA 1875
Scott & Danton [2014] FamCAFC 203
S & S [2003] FamCA 905
Stanford v Stanford [2012] HCA 52; (2012) 247 CLR 108
Teal & Teal [2010] FamCAFC 120
Division: Division 2 Family Law Number of paragraphs: 225 Date of last submission/s: 29 July 2022 Date of hearing: 18 and 20 May 2022 Place: Parramatta Counsel for the Applicant: Mr Livingstone Solicitor for the Applicant: Beale Lawyers Counsel for the Respondent: Ms Judge Solicitor for the Respondent: Capitol Legal
Table of Corrections 19 May 2023 In paragraph 219 reference to “Montes” corrected to show “Moneys”. ORDERS
PAC 3667 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CAREVIC
Applicant
AND: MR CAREVIC
Respondent
order made by:
JUDGE OBRADOVIC
DATE OF ORDER:
8 MAY 2023
THE COURT ORDERS THAT:
1.The parties shall forthwith do all acts and things and sign all documents and instruments as may be necessary to disburse the balance of proceeds of the sale of the property known as B Street, Suburb C in the State of New South Wales presently held in a controlled moneys account in the name of Mr D trading as E Pty Ltd to Ms Carevic and Mr Carevic as follows:
(a)The sum of $1,592,948 to the Applicant wife Ms Carevic;
(b)The sum of $1,153,450 to the Respondent husband Mr Carevic; and
(c)Any balance to be divided 58/42 in the wife’s favour.
2.Unless otherwise specified in these orders:
(a)Each party shall be entitled to the exclusion of the other to all other property and financial resources of any nature and kind (including choses-in-action) in the possession of such party as at the date of these orders;
(b)Each party shall forego any claims they may have to superannuation benefits belonging to or earned by the other;
(c)Insurance policies shall remain the sole property of the owner/beneficiary named therein; and
(d)Each party be solely liable for and indemnify the other against any personal liabilities and any liability encumbering any item of property to which that party is entitled pursuant to these orders.
3.In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, the Registrar of the Court be appointed pursuant to s.106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.
4.The Applicant is to file and serve any evidence and written submissions in respect of costs by 4pm on 5 June 2023.
5.The Respondent is to file and serve any evidence and written submissions, in respect of costs by 4pm on 26 June 2023.
6.The Applicant is to file and serve any submissions in reply by 4pm on 10 July 2023.
7.Unless the parties object, the Court is to deal with the issue of costs on the papers and judgment will be reserved to be delivered on a date to be advised.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 19 May 2023.
JUDGE OBRADOVIC:
INTRODUCTION
These are Reasons for Judgment in respect of competing applications for property adjustment orders. The parties to the proceedings are the applicant, Ms Carevic born 1964 (“wife”), and the respondent, Mr Carevic born 1958 (“husband”).
The parties were married in 1983, and according to the wife they separated in 2019. According to the husband, the parties separated in 2009. It is not often that parties before this Court are years apart in terms of when they say they separated. In any event, they agree that they have three children together, and by and large they agree about the assets they acquired during the years of their relationship, including up to 2019 and then to the date of hearing.
The parties are in significant disagreement about whether the husband was physically, emotionally and verbally abusive towards the wife. The husband remains unaware as to why the police attended the parties’ home on many occasions over the years. The husband does not agree that the reason why the wife went to a refuge numerous times over the years was because he was violent towards her, rather he remains oblivious as to why she sought refuge on each of those occasions.
The parties are in significant disagreement about whether the wife secreted away some $750,000 which appears to have remained hidden for some 14 years. They are in significant disagreement about whether the husband wasted many hundreds of thousands of dollars on gambling, which the wife says, in essence, accounts for the money the husband says is missing and which he accuses her of secretly keeping. The husband does not deny that he gambled, including on occasion tens of thousands of dollars over the period of a few days, but he says he was not a “gambler”.
At final hearing, there remains some $2,750,000 in a controlled moneys account being the proceeds of sale of a property in Suburb C which was held in the husband’s sole name, and about $150,000 in other assets inclusive of superannuation. There are arguments as to addbacks to the total value of just over $311,100. The wife owns and operates a small business. The husband is said to be unemployed, although he does work from time to time when able to find work.
The wife seeks that the ultimate result be that the moneys held in the controlled moneys account be divided 75% to the wife and 25% to the husband, the husband pay the wife’s cost of the proceedings and that the wife retain her business known as F Business. As part of the final property adjustment percentages sought by the parties, the wife’s includes an 8% adjustment for a Kennon claim, a 10% adjustment for waste, and a 7% adjustment for s.75(2) factors.
The husband seeks that the ultimate result be that each party retain all assets currently in their possession or control, and that the proceeds of sale of the property at Suburb C be divided 85% to the husband and 15% to the wife. The adjustment sought by the husband takes into account: his claims that he made real and substantial contributions to the marriage up until 2009 and that some of the benefits of these contributions have been enjoyed by the wife to the exclusion of the husband; that his contributions to the asset pool outweigh those of the wife between 2009 to 2019; that he made significant contributions to the development of the Suburb C property leading to capital gain; and that the s.75(2) factors in fact favour him.
For reasons which are explained herein, the Court finds:
(a)That the parties separated in mid-2019;
(b)That the husband was verbally and physically abusive towards the wife as she claims;
(c)That the wife’s contributions were made more arduous as a consequence of the family violence; and
(d)That there should be an adjustment of the parties’ property interests as to 58% in favour of the wife and as to 42% in favour of the husband.
CREDIT AND EVIDENTIARY INFERENCES
The wife was an impressive witness. She did not shy away from answering difficult questions nor from making admissions where appropriate.
The husband was argumentative and at times non-responsive. He however, made many admissions which were against his interests and it seems, contrary to the case he was running.
Where the two are in conflict, the Court prefers the evidence of the wife to that of the husband.
It was submitted in the husband’s case that the Court should draw a Jones v Dunkel inference against the wife, in respect of her not calling the parties’ son Mr H to give evidence.
While asked to do so, the Court does not draw any Jones v Dunkel inference in respect of the parties’ separate decisions not to call their adult son Mr H to give evidence in either one or the other’s cases.
RELEVANT LEGAL PRINCIPLES
The overall approach to the determination of an application for property adjustment orders pursuant to s.79 Family Law Act 1975 (Cth) (“the Act”) was set out by the High Court in Stanford v Stanford (“Stanford”).[1] Such approach was subsequently considered by the Full Court of the Family Court in Bevan & Bevan,[2] Chapman & Chapman,[3] and Scott & Danton.[4]
[1] [2012] HCA 52; (2012) 247 CLR 108.
[2] [2013] FamCAFC 116 (“Bevan”).
[3] [2014] FamCAFC 91 (“Chapman”).
[4] [2014] FamCAFC 203 (“Scott”).
In many matters which come before this Court, the requirement of whether it is just and equitable to make any orders is readily satisfied by the fact of the parties’ separation; as there is not and will not thereafter be the joint use of property by the parties. It is so in these proceedings.
Once the issue of whether it is just and equitable to make any order is resolved, the Court is to then consider the contributions made by the parties as defined in ss.79(4)(a) to (c), the matters set out in ss.79(4)(d) to (g) and in particular the subjective considerations as to the parties by having regard to the provisions of s.75(2) in so far as they are relevant.
The Court is then to consider the justice and equity of the actual orders to be made, in the context of the Court’s obligations to make appropriate orders as provided for in s.79(1) of the Act.[5]
[5] Russell & Russell [1999] FamCA 1875; Teal & Teal [2010] FamCAFC 120.
The just and equitable requirement is “one permeating the entire process”.[6]
[6] Bevan at [86].
Legal Principles regarding the Kennon Claim
The allegations of family violence are raised by the wife in the context of a Kennon & Kennon[7] claim. The wife urges the Court to make a finding that her contributions were made more onerous by the family violence which was visited upon her at the hands of the husband.
[7] Kennon & Kennon [1997] FamCA 27 (“Kennon”).
In order to establish that an adjustment ought to be made for these reasons, the wife has the onus to not only establish facts to the requisite standard of the course of conduct which is alleged and required to make such a case, but also to demonstrate that such conduct has had a significant adverse impact upon her contributions or made her contributions more arduous than they ought to have been.[8]
[8] Kennon.
In S & S[9] the Full Court referred to Kennon and emphasised that:[10]
The question is whether a trial judge may infer from the evidence that the result must be that a party’s contributions have been affected.
[9] [2003] FamCA 905 (“S & S”).
[10] S & S at [42].
Furthermore, the Full Court in Britt & Britt[11] considered whether the evidence was capable of establishing a claim that the appellant’s contributions were made more onerous by the conduct of the respondent and said:[12]
The respondent submitted that the appellant’s evidence was not relevant to an issue because even if it was evidence of family violence, the appellant had called no evidence to suggest that the violence had made her contributions more onerous. This submission overlooks the obvious point that the court can infer from appropriate evidence that there was a nexus between the conduct and the relevant contributions.
[11] Britt & Britt [2017] FamCAFC 27 (“Britt”).
[12] Britt at [74] cited in Horrigan & Horrigan (No.2) [2018] FamCA 937at [231].
As the Full Court held, it is necessary to provide evidence to establish the incidence of domestic violence and the effect of domestic violence. It is also necessary for the applicant to establish evidence sufficient to enable the Court to quantify the effect of that violence upon the party’s capacity to "contribute" as defined by s.79(4).[13]
FINDINGS OF FACT[14]
[13] S & S at [47]-[48].
[14] The findings include the matters agreed to by the parties.
The husband was born in 1958. He is presently 65 years old.
The wife was born in 1964. She is presently 58 years old.
The husband migrated to Australia when he was 22 years old, in 1980. He initially lived in Brisbane, working as a technician. He then continued working in the building industry.
The parties were married in 1983. At the time, the husband was 25 years old and the wife was 19 years old. Neither party had any significant assets at the time of their marriage, nor did they live together prior to the date of marriage.
At the time of the parties’ marriage, the wife was working as a register operator, and continued in a similar type of employment until the parties’ first child was born.
The parties have three children together, who are now all adults, namely: Ms G born 1987, Mr H born 1988, and Mr J born 1996.
Real Property bought and sold by the Parties
In 1987 the parties purchased a vacant block of land at K Street, Suburb L for $42,000, borrowing $20,000 to fund the purchase (“K Street”).
The parties subsequently built a house on the K Street block as owner builders. The husband did a significant amount of work on the build, and was otherwise able to source tradesmen through his connections in the building industry, at little to no cost to the parties. There is no evidence as to the cost of the build or how the parties were able to fund the build.
Presumably the parties lived in the house at K Street, once it was built, although there is no direct evidence about this. There is no evidence as to where the parties lived while the K Street home was being built.
In 1997, the property at K Street, Suburb L was sold for $295,000. It is entirely unclear on the evidence what the net proceeds of sale were.
In 1997, the parties purchased a block of land at M Street, Suburb L (“Suburb L”) for $155,500 using a combination of the sale proceeds from K Street and the parties’ savings. The parties did not need to borrow any funds to purchase this block of land.
Once again, as owner builders, the parties built a house. The husband made significant contributions towards the build, by doing the construction work himself with help from friends. After about 6 or 7 months, the parties moved into the completed house at Suburb L. There is no evidence as to where the parties lived while the Suburb L property was being built and after the K Street property was sold.
As at mid-2002, the Suburb L property was valued at $660,000 by the Commonwealth Bank of Australia.
In 2009, the parties sold the Suburb L property for $765,000, with net proceeds of $745,000 after payment of fees and commission. The sale settled the following month.
The various family businesses and business dealings
From 1987 to 2009, the parties have owned and operated their own businesses.
The wife did not go back to paid employment after the parties’ first child was born, except in so far as she was involved in the family businesses.
From about 2002 until 2008, the wife became more involved in the businesses tendering for and winning work for the companies. From about 2004, she started to take on the responsibility of managing the employees and the administration of the companies, including attending sites and managing disputes. She says this was the direct result of the husband attending N Venue in Suburb L and not wanting to be “disturbed”.
The wife completed courses in small business management, payroll and accounting.
It is difficult to discern from the evidence what paid work the husband actually did, except that he worked in the building industry until 2009. Presumably he worked in the family businesses and through the various companies of which the parties were director(s), doing such work.
The husband says that between 2000 and 2009 the parties had a large amount of work, and that between 2000 and 2006 they had on average 10 employees working for them, and between 2006 and 2009 they had on average 15 employees. The husband says he has been unable to obtain financial records from the Australian Taxation Office (“ATO”) as “taxation returns cannot be provided for companies which have been de-registered”.
The husband says that in the year ending 30 June 2001, the gross turnover for the parties’ business P Company was $553,317, and in the year ending 30 June 2004 it was $1,133,951.
In 1987, the parties incorporated Q Pty Ltd, of which they were both directors.
In 1994, Q Pty Ltd purchased a property at R Street, Suburb S (“Suburb S property”) for $77,000.
In 1999, the Suburb S property was sold for $115,000.
There is no evidence as to any net profits on the purchase and sale of Suburb S, and to what use, if any, such profits were put by Q Pty Ltd and/or the parties. It appears that Q Pty Ltd was voluntarily de-registered in or about 2003.
The husband gives evidence that “during this period we were also able to purchase” a number of motor vehicles. It is not clear from the evidence who the “we” is, and whether the vehicles were purchased/leased/acquired through any of the company structures or by the parties personally, although it is asserted that in 2008 new vehicles were purchased for the children and the wife. There is no evidence as to how the purchases of the various motor vehicles were funded.
In or around 2006, the wife gained qualifications in a new industry.
In or around 2008, the parties contributed $15,000 toward the cost of their daughter Ms G’s course in the same industry.
In or around 2009, the wife started a business with the daughter Ms G, which operated for about 3 years. The rental premises from which the business operated were substantially renovated. The husband says that he and the wife paid to fit out the shop for about $150,000.
In or around 2012, the wife says she commenced a business, trading as F Business. Ms G worked at F Business one day per week.
The wife maintained in her oral evidence that F Business is a different business to the one she ran with Ms G. In any event, it appears to be a successful business which has resulted in the wife earning an income capable of meeting not only her own living expenses, but which has also enabled her to make financial contributions towards the Suburb C property of at least $30,950.
The wife says that the husband started his own business without the wife’s input in 2010.
Suburb U Property Development
In 2002, the parties purchased a property at T Street, Suburb U (“Suburb U property”) with another couple who were their partners in a proposed development. The Suburb U property was purchased through a company V Pty Ltd which was incorporated for this purpose. The development of the Suburb U property was financed by V Pty Ltd, which was funded 50% by the parties through a Commonwealth Bank of Australia Viridian Line of Credit (“Viridian loan”), with the Suburb L property being used as security for the loan, and 50% by their partners.
The property had a development approval (“DA”). There was a subsequent subdivision and a number of units were ultimately constructed on the property.
The husband gave evidence that he laid the slab for each of the units and that “we arranged trades people to construct the [units].” The husband asserts that he was present on site each day to manage the works and that this took about 6 months. The parties are silent, for example, on their personal income during the period they were working on the Suburb U property development, whether either of them drew a wage from V Pty Ltd and/or any other company that may have been involved in the development and whether any of their numerous companies were in any way involved with the development, and if so how so. It is therefore unclear what the relevance of the husband’s evidence about his personal attendance at the site might be, indeed, much of the parties’ evidence is tainted by this brush.
In the period early 2004 to mid-2006, a number of the units that were built on the Suburb U property were sold. The proceeds of the sales were used to pay down the Viridian loan which was taken out in late 2002 for $500,000.
After the sale of the units, the remaining four units were split between their partners and the parties, with two units to remain in the wife’s and husband’s names and two units in their partner’s names.
The wife and the husband re-mortgaged the two units which they retained with a loan from the Commonwealth Bank for $448,818 in early 2009.
The Viridian loan was closed in mid-2009, thus releasing the security over Suburb L property and leaving the wife and husband with two units and with a mortgage to the Commonwealth Bank of Australia.
The two remaining units at the Suburb U property were sold for $324,000 (retaining $314,850) and $305,000 (retaining $131,185.45), in 2010. The proceeds of sale were used to discharge the mortgage held over the properties of $448,818, and there was a remainder of $139,808[15] after all legal fees and sales fees were paid. These funds were held in the trust account of the parties’ previous solicitor, where he drew a cheque for $139,808, which the husband collected in 2010 and deposited into his account ending #...22 on the same day.
[15] Later referred to as $140,000 as agreed between the parties.
The wife gives evidence explaining the various loan arrangements which were put in place while the Suburb U property was being developed, the securities used and the repayments of the loans. The husband much less so.
Although there is some suggestion by the husband in his evidence that the wife kept him in the dark about the finance arrangements and indeed, that he did not know about the loans and that he did not sign any documents for the loan to change the name of the borrowers, these suggestions of the wife’s wrongdoing (and potential fraud) were taken no further by the husband during the hearing. The Court does not accept that there was any wrongdoing by the wife nor that there is any basis for any inference that she did anything but act in the parties’ best interest. The wife says however, that it was around this time (in about 2009), when some of the loans were refinanced, that the husband started to accuse her of stealing his money.
In or around 2009, the wife and the husband had a conversation about the Viridian loan where the husband accused her of stealing money from him. In this instance, the husband thought they had some money and he wanted to purchase land. The wife reminded him that their money had been used to pay out the Viridian loan. The husband did not accept this as he believed the Viridian loan had “already been paid off”. The husband became angry and shouted at the wife “where is the money?” This was and remains an ongoing theme for the husband.
What is agreed between the parties is that when the last of the parties’ two remaining units was sold, after discharge of mortgage and costs, the proceeds of sale were $140,000.
As such, it appears that the 8 year project starting in 2002 and concluding in 2010 with the sale of the last of the units, ultimately yielded the parties only $140,000.
As noted at [63] above, in 2010, the net proceeds of $140,000 were deposited into an account held in the husband’s name.
The parties were debt free at this time.
The Suburb C Property and its Development
In 2009, a block of land at B Street, Suburb C (“Suburb C”) was purchased in the husband’s sole name for just over $780,000, including costs and stamp duty. The purchase was funded by the net proceeds of the Suburb L property ($765,000) and the early release of retention moneys “from a job”. The settlement for both the sale of the Suburb L property and the purchase of the Suburb C property occurred on the same day.
The Suburb C property was ultimately improved by the addition and erection of a shed, a dwelling and subdivision of the land.
In or around mid-2010, the husband received approval for the construction of a house and shed on the Suburb C property. The parties agree that the $140,000 received by the parties upon the sale of the last of the Suburb U units was used to build the shed at Suburb C.
The husband’s evidence is that it took about 2 to 3 months to complete the shed, which consisted of 4 bedrooms, 2 lounge rooms, a kitchen, two internal bathrooms and an external bathroom. The husband says that he did all of the labour with the exception of the tiling. The husband gives evidence that he laid the slab for the house at Suburb C at the same time as he laid the slab for the shed.
In respect of the subdivision, the husband says that he took significant actions in pursuing DA approval for the subdivision of the Suburb C property. This included applying for loans and communicating with W Company who were handling the DA.
In late 2013, the husband says he borrowed $250,000 form National Australia Bank (“NAB”) and that “[Mr H] helped him get the loan” which was to be used for the construction of the Suburb C property (“first loan”). He says he only needed $150,000 but that Mr H had arranged the larger loan amount. The husband goes on to say that Mr H took $90,000 of this loan for his own personal use, and returned only $20,000 in cash of this amount to the husband.
It is the husband’s evidence that he did not have full control of the money that was borrowed and that Mr H was able to access and use these funds. He states that he did not control what repayments were made on the loan and by whom they were made. He goes on to give evidence that he discovered that Mr H would often withdraw the same amount of funds on invoices that the husband had already paid, such as when he paid $16,000 for windows and $10,000 for concreting, Mr H made withdrawals for the same amounts.
The wife alleges that from 2013, the husband used a significant portion of the mortgages taken against the Suburb C property for personal expenses rather than on the capital improvement on the land, such as building the house. She says that the husband regularly made withdrawals of $10,000 a day, and on several occasions withdrew $15,000. It is the wife’s case that these moneys were gambled away.
The husband agrees that from time to time he made withdrawals from the loan for his own personal expenses, including $19,522 for the purchase of a block of land in Country X. He also states that he gave $15,000 to his daughter Ms G to “pay her debts”, which he alleges she used to fund an overseas holiday to the United States of America with the wife. He also says that he gave money to his son Mr J, as he was “having financial trouble”.
The wife goes on to say that since the time of the first loan in 2013, the husband has not paid any interest on the loans or any bills. She says that the husband asked her to make repayments on the loans, which she did in the amount of $53,700 towards the mortgage interest and $16,532 for other payments to the mortgage. The husband concedes that, of the electronic funds transfers totalling $53,700, $30,950 refer to “[Ms Carevic]”.
The wife says that during this period she could not pay all the household expenses and as such, accrued $40,517 of tax debt, excluding any interest or penalties.
In early 2015, the husband drew down $98,308 from his superannuation. He says these funds were used to fund the completion of the house and fund his personal expenses. He says that $93,317 was paid to “[W Company]” for work done in relation to the DA.
It is the wife’s evidence that in or around late 2017 to early 2018, the husband was not working and could not secure additional loans. The wife states that the husband approached Mr H to take out a loan on his behalf against the Suburb C property.
This loan was for $309,757 on a 12 month term. It is the wife’s evidence that the loan comprised of $49,402 in retained interest, $18,753 of “legal, application, brokerage and lenders establishment fees”, with $241,600 being the loan amount.
The wife contends that this loan amount was split between Mr H’s account and the husband’s account, with $144,960 and $96,640 being deposited respectively. The wife states that Mr H repaid $12,000 to Ms G in reimbursement of a loan, and he paid $3,000 for a heritage report. The remainder of the funds which Mr H held, being $129,000, was then deposited in the husband’s account. The wife says that the husband therefore had the use and control of $226,000.
The wife says that the $226,000 referred to above, was not used for the development of the property. She says that the husband paid “some fines in the sum of about $3,000, some council rates of about $5,000, and about $20,000 for some further enquires relevant to the DA”.
In 2018, the husband travelled overseas. The husband asserts that at that time, all expenses in relation to the Suburb C property had been paid and that $100,000 remained from the loans obtained. He says that during his time overseas he was informed by Mr H that a heritage report was needed to be completed and that the cost of this report was approximately $30,000. He says that the heritage report was paid before the taking of the third loan and that the wife did not contribute to the payment of it.
The wife then gives evidence that she, along with Mr H and the husband, refinanced the loans against the Suburb C property by taking out a third loan of $853,577 with Y Finance in the name of Z Pty Ltd. Mr H is the sole director and shareholder of Z Pty Ltd. The wife says that this loan was used to discharge the first two loans, repay Mr H “some monies”, and for interest and further expenses in relation to the DA.
The husband says that the third loan was for the amount totalling $853,577 and says that loan was broken down as follows:
(a)$53,577 for fees and costs;
(b)$334,044 for the repayment of the second loan plus legal fees and interests; and
(c)$252,761 for the discharge of the amount owing on the husband’s NAB Mortgage Account.
According to the husband, this left about $213,187 which was deposited into the CBA account of Z Pty Ltd. The husband states that, following discussions with Mr H about the money from the third loan, he had not been given information about what account the money was in or how it was being spent. The husband says he “felt that [he] was losing control and was afraid that things would be done behind my back.”
After mid-2019, the wife lodged a Caveat on the Suburb C property, which was subsequently removed.
The wife claims that in mid-2019, the husband forced Mr H to give him $35,000 on Mother’s day. This is denied by the husband.
On 12 November 2019, orders were made for the parties to instruct Z Pty Ltd and Mr H to transfer the balance of funds borrowed by Z Pty Ltd from Y Finance into the Trust Account of the wife’s solicitor. The wife was thereafter authorised to instruct the solicitor to pay any and all monthly interest payments to Y Finance together with $500 per week to the husband.
On 6 December 2019, orders were made for the sale of the Suburb C property, which also provided for a partial property distribution to the parties of $150,000 each. Both parties elected not to receive said distribution.
In or around 2020, the deposit from the sale of Suburb C proper was released and the parties both received $182,500.
On 27 July 2020, the husband received $13,431 from the balance of funds held in trust by the wife’s solicitor in accordance with orders dated 12 November 2019. The initial amount held by the lawyers pursuant to Court orders was $66,143, which was the balance of the loan moneys that had been borrowed for the Suburb C property. These orders provided for the husband to be paid $500 per week, which he was. As such, the husband received the benefit of the entirety of the $66,143.
In early 2021, the sale of the Suburb C property was completed, with a final sale price of over $4,000,000. As at early 2021, the debt secured against the Suburb C property was $967,743.
The following month, the Mortgage with Y Finance over the Suburb C property was paid in full and discharged.
The remaining amount from the sale of the Suburb C property is held in a controlled moneys account on behalf of the parties.
Overseas Properties
In or around 2014, the husband purchased land in AA Town, Country X. The husband withdrew $19,522 from the Suburb C property mortgage for the purchase. It is still unknown whether the transfer has been finalised.
In cross-examination, the husband was questioned about the property he had inherited from his father, which had not been mentioned in affidavits, financial statements, or the balance sheet. It is the husband’s evidence that he did not expend any money on the maintenance of this property, and that it still costs him nothing. However, the property exists.
Violence Perpetrated by the Husband
The wife provides a number of specific examples of the domestic and family violence she says she suffered at the hands of the husband. The Court accepts the wife’s evidence in respect of these matters as follows:
(a)The husband would often call the wife “bitch” and “slut”;
(b)In or about 1988, the husband slapped the wife across the face, causing her nose to bleed. The husband then pushed the wife to the ground and started kicking her with both feet. Following this incident the wife left the parties’ home and went to a women’s refuge. She did not go to the police and returned to the family home after a few months;
(c)Throughout the relationship, if the wife refused to have sexual intercourse with the husband as he demanded, she would get beat-up, or hit or be verbally abused;
(d)At various times over the years until late 2009, when the husband asked the wife for money and she refused his request, he would sometimes take hold of her arm and twist it behind her back causing her pain. She would then write out a cheque for the sum the husband requested, or provide him with a blank cheque;
(e)In early 2010, at around 2am the husband, after being asked by the wife what he was doing, as he was in his car at the time, shouted at the wife “I am going to kill you.” He then opened the car door and got out. The wife was frightened and she ran down the street and hid. After following her for a short while, the husband returned to his car, and drove past. The wife then returned to the parties’ home and called the police. She hid in the home until the police arrived. While the police were there, the husband returned to the property. The police asked him to leave, and he did. The wife was concerned that he would return after the police left, as he had previously told her that he was not scared of the police and she believed him. Mr H and the other two children, who were present at home on the night, were frightened, and Mr H said to the mother that she should go and stay with her mother and that they would be ok. The wife made the decision to leave the home and spent time in a refuge in Suburb BB after initially staying with a friend. The parties’ daughter Ms G moved in with the maternal grandmother, while Mr H and Mr J stayed at the family home. Only Mr J was a minor at this stage. The wife kept in daily contact with the children and supported them both emotionally and financially while she lived in the refuge. While she lived in the refuge the wife applied for and was in receipt of Centrelink benefits;
(f)The wife stayed in a refuge for a period of about three months in mid-2011. While the wife did not give any evidence about the events leading to her moving into a refuge, it is inferred that she did not do so except out of necessity and as a result of fleeing from family violence;
(g)In 2012, the wife again left the family home and returned to the shelter she had been to in 2010;
(h)The husband incessantly telephoned the wife over three days in early 2012;
(i)In 2013, the wife visited the husband, on the husband’s invitation, whilst he was away working in Perth. During this trip, the husband threatened her by saying “if you do not give me back my money I will kill you”. She immediately left Perth after the husband made the threat as she was frightened;
(j)Several weeks after the incident referred to immediately above at (i), the husband attended the Suburb C property unannounced and looked at the wife in what she describes as a “threatening way”, which forced her to immediately vacate the property and seek assistance from the police, where a provisional Apprehended Violence Order (“AVO”) was made in early 2013. Weapons owned by the husband were seized by the police at the time of these events. The husband’s ownership of these weapons made his threats to kill all the more grave and frightening;
(k)In 2013, the wife arranged a meeting with a “forensic accountant, the respondent, 2 security guards, my two sons and me” to discuss the accounts and where the money had gone. This information was placed on a Universal Serial Bus (“USB”) and provided to the husband. During this meeting the husband became angry then stood up and threw his arms around while yelling. After the husband sat back down, the wife walked to another table to collect a receipt to show the husband. When she returned to the table the husband stood up, picked up a canister of bug spray and proceeded to swing the can up and down in the direction of the wife, telling her to “shut up and not say a word.” The wife was scared that if she said anything more that the husband would throw the canister at her, as the husband was about a meter away. After the husband was handed the USB, the husband said words to the effect that “I will make her eat it”;
(l)In mid-2013, an interim Apprehended Domestic Violence Order (“ADVO”) was made for the protection of the wife;
(m)In 2014, the husband entered the wife’s bedroom around 9pm and placed both of this hands around her throat. He then pressed hard on her throat and she struggled to breathe. The husband then began to hit the wife with closed fists in the side of the head. After the husband stopped hitting her, the wife drove herself to CC Hospital for an examination and attended the hospital again the following day. The wife thereafter went to a refuge where she stayed for an undisclosed period of time;
(n)In 2015, there was another incident of physical violence by the husband towards the wife and she again left the family home. She returned to the refuge and remained there for 3½ months, until she moved in with her mother; and
(o)In 2019, the husband threatened the wife by raising his fist at her, causing her to leave the residence and spend the evening at her brother’s home. This was after the wife went to buy the husband items, and gave him $300 cash. This incident resulted in the wife phoning the police, who issued and interim AVO with a final AVO issued in mid-2019 by consent. The husband says that he consented to the AVO but that he did not “admit any of the allegations”.
For the sake of clarity, the Court has considered the husband’s denials of the allegations and, where applicable, his version of events.
The husband denies the allegations of family violence which the wife levels against him. He concedes that at times the parties would argue and he would swear at the wife. He says it is not true that he ever slapped or kicked the wife. He also says that he did not hit the wife with his fists, nor did she ever attend hospital as a result of anything he did to her. The husband asserts that the parties did not have any problems in their marriage until the argument about missing money.
The husband agrees that the police attended the home on numerous occasions citing that they attended their properties “3 or 4 times every year” but that these attendances were for “no reasons that I was able to understand”.
In respect of the findings at [102(e)] above, the husband states that the wife had invited people over to the property to celebrate, and that these guests were not his close personal friends. He says that as a result, he left and went to the pub and on his return encountered police at the property who informed him that as his name was not on the lease he would have to leave. He says he left the property and lived in his car for a “few weeks” until he received a phone call from Mr H, where he was told that the wife had left and the children were asking from him to return to the property.[16]
[16] Husband’s Affidavit filed 6 May 2022 at [65]-[69].
The two versions are capable of being reconciled except for the husband’s denial of violence in general (which the Court does not accept). It is entirely feasible, and indeed likely, that most of what the parties say occurred, did occur. As such, in summary the whole event was likely as follows:
There was a party which the husband left and instead he went to the pub. When he came back he was sitting in his car, when the wife approached him at 2am. He then threatened to kill her, and she became frightened and ran to hide. He got out of his car and went looking for her and then got back in his car and drove off past her. The wife then went back into the house and called the police. The police were there when the husband arrived back home, he was told by the police to leave and he did so. The wife left the home and lived in a refuge. Thereafter Mr H called the father and told him that the wife had left.
In the husband’s version there are omissions in respect of his violent behaviours, a lack of acknowledgment for such actions and their consequences, and a total lack of accepting responsibility.
In respect of the phone calls in 2012, the husband said in his oral evidence that he needed to speak to the wife about Mr J. The phone calls were made while the wife was in a refuge, having left the family home due to family violence. Even if he was calling to speak to her about Mr J, such incessant phone calls were harassing and intimidating; even in circumstances where the husband says the parties were separated on a final basis (which the Court finds they were not).
The husband denies the wife’s version of events in relation to the confiscation of his weapons, and says that they were locked away in storage. At the time the police attended he could not locate the key to the padlock and the police subsequently grinded off the lock. He says he later found the key in a shoe box inside the wife’s wardrobe.
The husband denies the wife’s version of events in relation to the incident and meeting with the accountant about the parties’ finances. He says that he was unaware that security guards would be attending this meeting. Additionally, the husband states that the accountant did not provide him with satisfactory answers to explain the “missing money”, nor does he recall being given a USB with additional information. However, the husband agrees that he threw a bottle of water in anger, although denies that it was thrown in the wife’s direction or that it hit her. He denies that the police were called to this meeting.
The husband says that has never been charged by the police for any offence relation to violence toward the wife or any other person. In relation to the events in 2019, the husband also states that he received paper work to attend Court, which he attended, and told the judge “I accept the AVO but I do not admit any of the allegations.”
On balance, the Court finds that the husband did engage in family violence. Such violence included verbal and physical abuse, and such violence caused the wife to flee and move out of the parties’ home on numerous occasions and live in women’s refuges for months at a time.
The husband’s violence towards the wife was very serious and completely unacceptable.
Were the wife’s contributions more arduous as a consequence of the family violence?
The wife bears the onus of establishing that family violence rendered her contributions more onerous.
The Court notes its findings at [105], [109], [113] and [114] above.
The violence was so severe so as to cause the wife to be in and out of refuges over many years, while at the same time she was also making her contributions both financially and as parent and home maker.
The police were called to the parties’ home on numerous occasions. The fact that the husband even now maintains that the attendance by the police was unnecessary in light of the findings of violence, further supports the finding that the wife’s contributions were more onerous.
There was at all times a complete lack of acceptance of responsibility by the husband, and indeed a complete lack of contrition or remorse, for his violent and abusive behaviour. By the same token, there was and remains a patronizing attitude by the husband towards the wife and a belittling of her struggles to deal with such violence over the many years, all the while looking after the household, the children (even if they were young adults at the time) and working in the family businesses.
The Court finds that the family violence perpetrated by the husband upon the wife rendered her contributions significantly more onerous than they otherwise would have been.[17]
[17] See in particular Britt & Britt (2017) FLC 93-764 at [74]; Sweet & Sweet [2022] FedCFC 676 at [247].
The Husband’s Gambling
The wife says the husband’s gambling began in 2004 where he would regularly spend time at N Venue, and that the husband became increasingly less active in the building companies from this time. The wife says she tried to get gambling assistance for the husband on a number of occasions from 2005 up until 2019.
The wife says that the husband received a letter dated late 2007 from N Venue, advising him of “Notice of Complaint and Hearing” in respect of his behaviour.
The wife says from mid-2007 to late 2007 the husband gambled away significant amounts of money at N Venue, withdrawing various amounts from the account ending in #...22 over this period. According to the wife, of particular note was on one date in late 2007 when the husband withdrew amounts totalling $31,000 at N Venue.
The wife provides evidence that while she in charge of the administration of the family companies, the husband would ask her money. He would say “I owe some people money” and that he needed “to pay them back”. If the wife refused to give the husband money he would grab her arm and twist it behind her back, forcing her to write a cheque, or she would sign a blank cheque.
In cross-examination, the wife gave evidence that a lot of pressure was put on her between 2006 and 2009 because she ran most of the business herself. The wife stated that she would visit the sites and argue with the workers on the work’s progress, and if she called the husband who was at N Venue, the husband would tell her not to call, that she had jinxed him, and that he did not want to know. The wife asserts that she was forced by circumstance to learn a lot about the business on account of the husband not working and spending time at N Venue.
The husband agrees that he attended N Venue “many times” and would gamble “from time to time socially”. However, the husband denies that he is a “gambler” or that he had a gambling problem. The husband claims that, before separation, he would arrive home from work and the wife would not have made dinner. It was on these nights that he would visit N Venue for dinner and not return until late.
The husband agreed that on some occasions he left his card at the venue, but denies ever having a meeting about this. He says that he did have a meeting with management on one occasion about an incident where a woman was propositioning him to have “sex with her friend” and suggested that the wife may have been unfaithful. The husband says this caused him to be angry and, having had “too much to drink”, damaged property.
In cross-examination the husband gave evidence to the effect:
·That he played up to 10 games at one time;
·That he did gamble, party, and drink;
·That he had control of his money and his life;
·That he was not a gambler; and
·The husband states “I deny any gambling allegations by my wife, and I never had the trouble in my house about gambling about the money issue until 2009.”
The parties agree that the pool of assets available for division should be far bigger, by at least some $750,000. That is, the parties both contend that there are significant moneys unaccounted for, the husband says that the wife has taken these, whereas the wife says that the husband has gambled these amounts.
It seems likely that there were vast amounts of money that were wasted in this manner, likely hundreds of thousands of dollars over the years. On the husband’s own evidence, he was speculating in 2009 that by then he had gambled away $200,000. The Court accepts that it is entirely within the husband’s knowledge how much he gambled and that he is in the best position to quantify his gambling losses. He has not done so.
While it is inviting to extrapolate the loss of $31,000 over a 3 month period in mid-late 2017 to an annual amount of $120,000, it is not open on the evidence to find that the husband consistently gambled in this manner over that year, or over any particular period of time including over many years.
The Court finds that the husband gambled away significant moneys during the years. However, the amount wasted in this manner is not capable of being ascertained with any precision on the evidence before the Court.
Missing Moneys
The husband claims that $1.5 million was stolen by the wife over the years.
The husband asserts that the various family companies were busy between 2006 and 2009, and made significant amounts of money (although no documents are before the Court to support such an assertion, and indeed the Court has made findings about the various businesses at [38] to [55] above).
The husband’s evidence is that he trusted the wife with the Suburb U development, and that “on many occasions after a big job” he would say to her “Make sure you put away some of the money. We don’t need that money now.” The husband says that on each such occasion he would tell the wife the amount he calculated the parties could afford to put away. The husband says that “each time the amount changed depending on the job from about $20,000 or $30,000 to about $80,000 or $90,0000”.
The husband asserts that by 2009, the savings ought to have been to the value of $750,000 or more. Of course, the husband has not provided any financial records to support his claim that such moneys were available to the parties or indeed that the parties had earnings which resulted in a capacity to save such an amount of money.
The Court does not accept the husband’s evidence that the parties had such amounts of money to be “put away”. Furthermore, it is likely that the husband gambled away significant amounts of moneys, thus wasting money that otherwise might have been available to the parties as savings or for investment.
The husband says that in or about 2009, the parties were interested in purchasing two blocks of land at Suburb DD. When the husband said to the wife that they should put a deposit down, she is said to have replied with “You are not going to buy nothing because you don’t have one dollar.” The wife saying such a thing is consistent with her evidence of the husband’s gambling and the parties’ finances (including those of their business ventures).
The husband says that towards the end of 2009 he made the following statement to the wife:
The [Suburb U unit] has to go on the market. This house [Suburb L] has to go on the market. We cannot be together anymore and I cannot own property with you anymore while the money is missing.
The husband states that when selling the Suburb L property and purchasing the Suburb C property, he told the wife that he wanted the Suburb C property in his name only. It is the husband’s evidence that when the wife asked the reason, his reply was because of the stolen money and that the wife said “I will not take one dollar from you. You can have the house too.”
It is likely that such statements were made by the husband to the wife, and they are consistent with his abusive behaviours towards the wife and his unwillingness to accept responsibility for his own actions. He remains vocal in his accusation that the wife has stolen many hundreds of thousands of dollars from him.
It is however, not accepted that the wife told the husband he could “have the house too”. The wife says, and the Court accepts her evidence, that she did not consent to the Suburb C property being put in the husband’s sole name.
A summary of the money that the husband claims as ‘missing’ or ‘stolen’ is as follows:
(a)Savings amounts husband claims he told the wife to ‘put away’ after completing construction works between 2000 and 2009 totalling $750,000. The husband says that, when asking the wife about the money and the wife’s claim that he had gambled it, he said “Okay, let’s say I gambled $200,000, where is the rest of the money?” The husband contends the wife cannot explain the missing funds of over and above $200,000, amounting to $550,000; and
(b)Undisclosed funds from 2009, to which the wife had access to the exclusion of the husband. The husband says that it is impossible for the wife to make payments she claimed from her disclosed earnings. The husband submits that, during the period after the sale of the Suburb L property, if the wife had access to funds in accounts they were funds derived from the relationship. The husband submits that it is open to the Court to find that it is more than likely the wife had access to undisclosed funds in excess of $50,000, with a specific amount of $100,000.
It is unclear how the husband reached his total of $1.5 million which he now claims as stolen.
It is clear however, that the husband now also accuses the parties’ son Mr H of stealing and/or misappropriating money associated with the Suburb C property. It seems to be the husband’s case that this money has somehow also made its way to the wife, and that Mr H and the wife were in cahoots.
The husband has not established on the evidence that the wife stole money from him or that she has otherwise managed to secret away between $750,000 to $1,500,000 over the years, or indeed any amount.
When Did the Parties Separate?
A significant aspect of the dispute before the Court is the date of the parties’ separation. The wife contends that the date of separation was in mid-2019. The wife’s evidence as to the date of separation ties in with an act of family violence which the Court has found occurred at [102(e)] above.
The husband contends that the parties separated on a final basis in 2009. According to the husband, this occurred following his realisation that money had gone missing, money which he claims the wife has stolen. In this regard the Court refers to the findings at [146] above.
Following the sale of the Suburb L property in late 2009, the wife moved into rental accommodation at EE Street, Suburb C (“EE Street”). The husband says, at this time, he had a conversation with the wife about where he will live and it was agreed that he would stay at EE Street until he had sorted himself out. The husband states that, while staying at EE Street, they slept separately, he intentionally stayed away from the property as much as he could, and he tried to avoid arguing with the wife as he was worried she would kick him out.
Following the incident in early 2010, the wife left EE Street and moved into a women’s refuge. The husband remained living at EE Street with Mr H and Mr J. Two days after the husband returned to EE Street, Ms G moved out to stay with the maternal grandmother.[18]
[18] Husband’s Affidavit filed 6 May 2022 at [70]-[72].
When the shed on the Suburb C property was completed, the husband, Mr H and Mr J moved there in late 2010, as did the wife once she gave up her lease on EE Street and returned from the refuge.
After the construction of the shed on the Suburb C property, the husband claims that the wife would occasionally stay at the Suburb C property. Though he cannot remember exact periods, he says she would stay for about one or two months and then live somewhere else for five or six months.
For a period of three months in mid-2011, the wife stayed at a refuge, before returning to the Suburb C property.
Shortly after moving to the Suburb C property, in about 2011/2012, the husband went to Western Australia (“WA”) to work. On most occasions he had off he would return to the Suburb C property.
In 2012, the wife again lived in a women’s shelter for a period of time before returning to the family home at Suburb C.
In 2013, the husband again went to WA to work, and while there he maintained contact with the wife. The wife visited the husband in Perth in 2013. Although she stayed in a different hotel, the day after he had picked her up from the airport they met in a park where they then proceeded to the wife’s hotel room and had sex. The wife says she left Perth thereafter as she was scared of the husband following his threats to kill her, after the parties started talking about the “missing” money.
After the 2014 incident, when the husband choked the wife, she went to a refuge for an undisclosed period of time. She thereafter returned to live with the husband at the Suburb C property.
From mid to late 2015, the wife lived in a refuge. In mid-2015, the husband asked the wife to come back, telling her that he wanted his “family back”. In late 2015, a family meeting took place at the wife’s sister’s house where the husband stood on a chair and said “I admit I have gambled a lot of money over the years. I am sorry. I won’t mention any money problems anymore”. It was after this that the parties again reconciled. There was a period of time when the husband mostly stayed in the main house while the wife lived in the shed. This was because there was no electricity yet in the main house and the house was not yet fully furnished. The family ate meals together and the parties tried to re-build their relationship over the next few months.
The parties went on holiday together in 2017 at Christmas with Ms G, Mr H, his wife and Mr J.
The Court does not accept the husband’s evidence that the parties separated on a final basis in 2009. While there were many periods of difficulty in the parties’ relationship including a number of separations and reconciliations by the parties and the strength of the relationship and the parties’ commitment each other changed from time to time, final separation did not occur until 2019.
Contributions to the Family
Throughout the parties’ relationship, the wife was took on the primary role of parent and homemaker. When he was at home, the husband did spend time with the children, and did assist in some household chores.
While the wife was living in refuges, she would return to the home where the children were living during the day when the husband was out, carry out the chores to ensure the home was looked after, and then return to the refuge. On some days while the wife was living in a refuge, the husband would take on the primary role.
These are important matters in assessing contributions.
The DA was at least $150,000. The husband’s evidence suggests that all he needed to build the Suburb C house was $150,000 (see [76]). He says he spent at least $163,812.
The total debt against the Suburb C property at the time of sale was $967,743.
If there was evidence about the total cost of the DA the Court would then be in a better position to make findings about contributions.
If there was evidence before the Court about the cost of the build of the home, then there would be evidence capable of grounding a findings about the alleged waste and/or contributions (both positive and negative), including in respect of the $98,308 the husband withdrew from his superannuation. As things stand, it is impossible to make any precise findings about the contributions.
If the DA cost was approximately $150,000 (or even double that) and the build was approximately $165,000 (or even double or triple that) where is the rest of the $967,743?
Apart from making financial contributions towards the mortgage over the Suburb C property, the wife does not appear to have had any other direct involvement with the building of the shed, the building of the house or indeed with the subdivision of the Suburb C property. She was not involved in the financial side, and was not privy to the costs or the detail of the work that was being done, except through what she was told by Mr H and/or the husband. It was the husband and Mr H who were the borrowers, and who were intimately involved, at least in the subdivision, and it was the husband who was intimately involved in the build (or at least that is what he asserts). The husband does not shed any particular light on these issues, and he has not called Mr H to give evidence in the proceedings.
The wife has identified over $300,000 of moneys withdrawn by the husband from 2013 onwards which has not been satisfactorily accounted for and/or which have been used for the husband’s own purposes.[24]
[24] See Exhibit 3.
Noting the significant withdraws of moneys by the husband the wife refers to in her evidence, and in the absence of any specific explanation by the husband, it is inferred that there were at least many tens of thousands of dollars if not hundreds of thousands, which were utilised by the husband for his own purposes from the funds which were to be used for Suburb C (including the superannuation which the husband withdrew), and which in all likelihood have been gambled away.
The wife made financial contributions towards the loans associated with the Suburb C property, of at least $30,950 but more likely over $50,000 plus the additional financial contributions towards the Suburb C household running costs.
Accepting the evidence of the husband at its highest in respect of this particular issue, the husband contributed $98,308 from his superannuation towards the Suburb C property development. Even if this is correct, it is a partial contribution by the wife as the superannuation likely accumulated while the parties were together, an inference the Court draws in the absence of direct evidence to the contrary.
The wife had the primary role of parent and homemaker, and in this regard her contributions far outweighed those of the husband.
The parties were both troubled by their youngest child’s path in life, and they each provided assistance to him both as a youth and thereafter as an adult, to find his way to a better path.
The Court notes its earlier findings of family violence and that the wife’s contributions were made more arduous by virtue of the family violence.
In all of the circumstances, taking into consideration both positive and negative contributions as found and/or inferred, including unexplained withdrawals and likely waste, the Court assesses the contribution based entitlements to be 58% to the wife and 42% to the husband.
The assessment is made on a global basis, taking into consideration the length of the relationship as well as the imprecise nature of much of the evidence before the Court. But for the negative contributions by way of gambling/waste and but for the Kennon adjustment, the contributions by the parties over the many years are otherwise equal.
Future Needs
The parties both have earning capacity and have continued to earn incomes.
They each possess skills and knowledge which will see them able to continue to work in industries they have worked in for years.
They both have some health problems, but it does not appear on the evidence that these health problems have caused them any incapacity to earn an income.
There will be no adjustment on account of future needs.
CONCLUSION AS TO OVERALL ADJUSTMENT
The net assets of the parties are valued at $2,882,023.
Based on the findings made as to contributions and future needs, the Court has assessed that there should be a 58% adjustment in favour of the wife and a 42% adjustment in favour of the husband.
If such orders are made, the wife will receive assets to the value of $1,671,573 and the husband $1,210,450. This is a differential of some $460,000. In all of the circumstances, such adjustment is just and equitable.
Excluding the proceeds of sale of the Suburb C property, the wife presently holds $78,625 while the husband presently holds $ 57,000.[25]
[25] Which includes the contents of the parties’ former home, see exhibit 3.
As such, the wife will receive:
Ownership Description Value Joint Moneys held on trust from sale of Suburb C property $1,592,948 Wife Motor Vehicle 1 $29,500 Wife Bank Account (CBA #...31) @ 11 May 2022 $473 Wife “F Business” Bank Account (FF Bank #...43) @ 11 May 2022 $7,304 Wife “F Business” Bank Account (FF Bank #...90) @ 11 May 2022 $29,875 Wife Business trading as “F Business” $30,000 Wife Superannuation $38,961 Wife ATO Debt ($32,222) Wife Wife’s vehicle loan ($25,266) TOTAL: $1,671,573
As such, the husband will receive:
Ownership Description Value Joint Moneys held on trust from sale of Suburb C property $1,153,450 Joint Household contents $25,000 Husband Motor Vehicle 2 $18,000 Husband Motor Vehicle 3 $7,500 Husband Motor Vehicle 4 $6,500 TOTAL: $1,210,450
The parties are still relatively young and continue to earn and receive incomes. No superannuation splitting orders are sought and none will be made.
The property adjustment orders will leave each of the parties with a significant capital sum of money in their name, which will allow them each the opportunity of being able to support themselves and appropriately house themselves.
In all of the circumstances, the result is just and equitable.
COSTS
The applications for costs are to be determined, if pressed, upon the parties being given the opportunity of putting on appropriate evidence and addressing the relevant matters in submissions.
As such, orders are made for the filing of evidence and written submissions, and unless there is objection, the issue of costs will be dealt with on the papers.
CONCLUSION
For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.
I certify that the preceding two hundred and twenty-five (225) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 8 May 2023
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