Carew & Carew
[2024] FedCFamC2F 1486
•25 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Carew & Carew [2024] FedCFamC2F 1486
File number(s): SYC 6524 of 2022 Judgment of: JUDGE MURDOCH Date of judgment: 25 October 2024 Catchwords: FAMILY LAW – PROPERTY – Application for property adjustment – 14 year relationship with the parties living separately under the same roof for a further 4 years post separation - Where the husband’s assertion that an inheritance received by him post separation should be excluded from the property pool available for adjustment between the parties is rejected - Where the wife's credibility was impacted due to frequent exaggeration in both her written and oral evidence - Where a disproportionate amount of hearing time encompassed issues of homemaker and parenting contributions - Where the wife was the primary income earner and the husband was the primary carer of the children - Where both parties seek a Kennon adjustment – Where a finding made that the husband’s contributions were made discernibly more onerous by the conduct of the wife - Where the wife made greater parenting contributions upon the husband vacating the former matrimonial home in circumstances where she cares for the children twelve nights a fortnight and the husband does not pay child support- Where the parties’ superannuation entitlements are dealt with in a separate pool of property – Finding of equal contributions to the superannuation property pool and 54% in the husband’s favour to the non-superannuation property pool - no adjustment made to the contribution findings. Legislation: Family Law Act 1975 (Cth) ss 75(2), 79, 117B Cases cited: Bell and Bell (1993) FLC 92-347
Bonnici & Bonnici (1992) FLC 92-272
Calvin & McTier (2017) FLC 93-785
Coghlan v Coghlan [2005] FamCA 429
Fields & Smith [2015] FamCAFC 57
Holland & Holland [2017] FamCAFC 166
Horrigan & Horrigan [2020] FamCAFC 25
Kennonv Kennon (1997) FLC 92-757
Noetel and Quealey (2005) FLC 93-230
Stanford & Stanford [2012] HCA 52
T & T (2006) FLC 93-263
Division: Division 2 Family Law Number of paragraphs: 220 Date of last submission/s: 5 September 2024 Date of hearing: 2 – 5 September 2024 Place: Sydney Counsel for the Applicant: Mr Jackson Solicitor for the Applicant: Tomasevic Poljak Lawyers Counsel for the Respondent: Mr Macarounas Solicitor for the Respondent: Etheringtons Solicitors ORDERS
SYC 6524 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CAREW
Applicant
AND: MR CAREW
Respondent
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
25 OCTOBER 2024
THE COURT ORDERS THAT:
1.Within three (3) months from the date of these Orders the Wife pay to the Husband the sum of $1,446,000 (“the settlement sum”).
2.Simultaneously with the Wife’s compliance with Order 1 above, the Husband is to do all acts and provide all consents and sign all documents as are necessary to:-
a.transfer to the Wife, all of his right, title and interest in the property known as and situated at B Street, Suburb C, New South Wales being the whole of the land comprised in Certificate of Title Folio Identifier … ("the former matrimonial home");
b.cause D Pty Ltd ("the Caveator") to withdraw Caveat number … secured over the former matrimonial home and provide a Withdrawal of Caveat in registerable form and;
c.payout in full all liabilities to the Caveator;
d.pay all costs associated with the Caveat and Withdrawal of Caveat;
e.pay all New South Wales Land Registry registration fees associated with the Withdrawal of Caveat; and
f.pay all Property Exchange Australia ("PEXA") fees associated with the Caveator providing the Withdrawal of Caveat and registration of the Withdrawal of Caveat.
3.Simultaneously with Orders 1 and 2 above the Wife and Husband shall do all acts and provide all consents and sign all documents as are necessary to discharge registered Mortgage … to E Bank secured over the former matrimonial home and refinance the mortgage in the Wife’s sole name at the Wife’s expense and the Wife thereafter be responsible for and pay the mortgage secured upon the said property and all other charges upon the said property, including but not limited to land tax, land rates, and water rates, and indemnify the husband in relation to the same.
4.Within 14 days of the date of these Orders the Wife and the Husband do all acts and things, provide all consents and sign all necessary documents to:-
a.cause the net proceeds of sale of the property situated at F Street, Suburb G, Queensland, currently held by Etheringtons Solicitors, to be distributed equally to each of the parties;
b.cause the monies currently held jointly by the parties in the E Bank Offset account BSB … account number …66 to be distributed equally to each of the parties and thereafter to close the said account.
5.In the event that the Wife fails to comply with Orders 1 & 3 above then the parties shall do all acts and provide all consents and sign all necessary documents to effect the sale of the former matrimonial home on the following terms:
a.to list for auction with an agent agreed upon by the parties in writing within fourteen days and failing agreement the agent be appointed by the President of the Real Estate Institute of New South Wales or his or her nominee;
b.give such instructions to a solicitor to act on the sale of the property agreed upon in writing within fourteen days, and failing agreement as to the identity of the solicitor, the solicitor be appointed by the President of the Law Society of New South Wales or his or her nominee;
c.market the former matrimonial home for sale by public auctions to be held on-site within six weeks of the property being listed for sale at a reserve price to be agreed by the parties in writing and failing agreement at a reserve price seven days prior to the auction, at such reserve price as determined by the single expert;
d.attend the auction and in the event that the reserve price set for the auction is not reached negotiate with the highest and second highest bidder and accept any offer to purchase that is the highest made within 5 per cent of the reserve price set for that auction unless the parties otherwise agree in writing;
e.execute the contract for sale and in the event that the parties fail to agree on the terms of the contract for sale, the terms recommended by the solicitor acting on the sale shall be adopted; and
f.the parties are to co-operate with the real estate agent in relation to the marketing of the former matrimonial home for sale including making the keys readily available and allowing inspection of the former matrimonial home at all times reasonably requested by the agent.
6.The proceeds of sale of the former matrimonial home pursuant to Order 5 above shall be paid in the following manner and priority:
a.to discharge registered Mortgage number … to E Bank;
b.payment of agent's commission and advertising or other expenses. if any, payable on the sale;
c.payment of the legal costs and outlays relating to the sale; and
d.the balance to be paid, as follows:
i.the settlement sum to the Husband together with an additional sum representing interest pursuant to Section 117B of the Family Law Act 1975 (Cth) at a rate prescribed by the applicable Rules of the Court and such interest calculated from the expiration of three (3) months from the date of these Orders; and
ii. the remaining balance to the Applicant Wife.
7.In the event that the former matrimonial home is not sold at the auction pursuant to Order 5 above or within fourteen (14) days after the date of the auction by further negotiation then the parties shall cause a further auction of the former matrimonial home to be held within two (2) months after the date of the first auction and for that purpose the provisions of Order 6 above shall apply.
8.Pending the Husband transferring all of his right, title and interest in the former matrimonial home to the Wife or, if applicable, pending completion of the sale of the former matrimonial home:
a.The Wife shall have the sole right to occupy the former matrimonial home.
b.The Wife shall pay all outgoings of the former matrimonial home including the loan repayments secured by way of mortgage over the property, council rates, water rates, electricity, gas and water usage and home building and contents insurance as and when they fall due
c.Neither party shall further encumber the former matrimonial home without the consent in writing of the other party
9.The following Orders are made under Part VIII of the Family Law Act 1975 and operate in accordance with Part VIIIB of the Family Law Act 1975 and in these Orders:
a."the Carew Super Fund" means the Carew Super Holdings being a regulated superannuation fund (ABN …) established by Deed of Trust active from 6 April 2018 and listed as a complying superannuation fund on the Australian Government Register maintained by the Australian Taxation Office at the uniform resource locator Trustee" means the Carew Super Holdings Pty Ltd (ACN …), being the corporation appointed as the trustee of the Carew Super Fund.
c."the Carew Super Fund Governing Rules" means the provisions of the Deed of Trust establishing the Carew Super Fund.
d."the Bare Trust" means the trust established in accordance with r.67A of the Superannuation Industry (Supervision) Act 1993 to hold the title to the City K Property as required under the limited recourse borrowing arrangements.
e."the Bare Trustee" means Carew Property Holdings Pty Ltd (ACN …) appointed as trustee of the Bare Trust.
f."the City K Property" means the estate in fee simple at Lot …. Survey Plan … in City K in the State of Queensland located at and known as H Street, Suburb J, in the State of Queensland.
g."the r.7A.06 Request" means the request by the Respondent Husband pursuant to r. 7 A.06 of the Superannuation Industry (Supervision) Regulations 1994 for the transfer of the Transferable Benefits from the superannuation interest in the name of the Applicant Wife in the Carew Super Fund to a superannuation interest in the name of the Respondent Husband in another complying superannuation fund.
h."the Transferable Benefits" means the benefits transferred on the Transfer Day on behalf of the Respondent Husband from the Applicant Wife's superannuation interest in the Carew Super Fund in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994.
i."the Rollover Request" means the request by the Respondent Husband in accordance with the Carew Super Fund Governing Rules to rollover the Respondent Husband's member benefit on the Transfer Day to a superannuation interest in the name of the Respondent Husband in another complying superannuation fund.
j."the Transfer Day" means the day selected by the Trustees for the transfer of the Transferable Benefits and the rollover of the Respondent Husband's member benefits.
k."the Respondent Husband's New Super Fund" means another complying superannuation fund nominated by the Respondent Husband.
10.The next clause of this Order binds the parties and the Trustee to observe the steps in splitting the superannuation interest of the Applicant Wife in favour of the Respondent Husband. Step 1 to Step 5 may be referred to as "the Splitting Order". where the Splitting Order has the effect that whenever a splittable payment becomes payable, the Respondent Husband is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 following the allocation of a base amount in favour of the Respondent Husband.
11.The entitlement of the Respondent Husband and the corresponding reduction in the entitlement of the Applicant Wife are determined as follows:
Step 1: Determine the relevant date as required by the definition of that term in r.3 of the Family Law (Superannuation) Regulations 2001: Relevant Date = 15 November 2023
(Ref: R.3 (definition of relevant date) of the Family Law (Superannuation) Regulations 2001)
Step 2: Determine, on the relevant date, the amount to be taken as the value of the Applicant Wife's superannuation interest in the Carew Super Fund: Amount= $412,667.30
(Ref: s.90XT(2) of the Family Law Act 1975 and r.22 of the Family Law (Superannuation) Regulations 2001)
Step 3: Allocate the Base Amount as follows:
a.Base Amount = $223,000
b.This amount is the Base Amount allocated to the Respondent Husband.
(Ref: s.90XT(4) of the Family Law Act 1975)
Step 4: Award the entitlement to the Respondent Husband:
The Respondent Husband is entitled to be paid the amount calculated in accordance
with Part 6 of the Family Law (Superannuation) Regulations 2001 by reference to the
base amount allocated to the Respondent Husband from the Applicant Wife's superannuation interest in the Carew Super Fund.
(Ref: s.90XT(l)(a)(i) of the Family Law Act 1975)
Step 5: Reduce the entitlement of the Applicant Wife:
The Applicant Wife's entitlement to any splittable payment made by the Trustees after making of this Order is reduced correspondingly by force of this Order and it is noted that the entitlement of such other person to whom a splittable payment would have been from the Applicant Wife's superannuation interest in the Carew Super Fund would also be reduced.
(Ref: s.90XT(1)(a)(ii) of the Family Law Act 1975)
Step 6: Bind the Trustee to the payment splitting order:
The Trustee shall do all such acts and things and sign all such documents as may be
necessary to:
a.calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the Respondent Husband in Step 4; and
b.pay the entitlement whenever the Trustee makes a splittable payment from the Applicant Wife's superannuation interest in the Carew Super Fund.
(Ref: s.90XZD of the Family Law Act 1975)
Step 7: Set the operative time:
The operative time for the Splitting Order is the beginning of the day upon which this Order is made.
Step 8: Confirm procedural fairness and service of the Splitting Order on the Trustee:
a.Procedural fairness as required by s.90XZD of the Family Law Act 1975; and
b.Service on the Trustee of the Splitting Order:
shall be deemed to have occurred on the date of this Order by reason that the parties are the only directors of the trustee of the Carew Super Fund.
Step 9: The Respondent Husband shall serve a notice on the Trustee in accordance with r.72 of the Family Law (Superannuation) Regulations 2001 giving notice of his name, date of birth, and the fact that he is a member of the Carew Super Fund.
Step 10: The Trustee shall serve:
a.a payment split notice on the Respondent Husband and the Applicant Wife in accordance with r.7A.03 of the Superannuation Industry (Supervision) Regulations 1994; and
b.a notice under r.2.36C of the Superannuation Industry (Supervision) Regulations 1994 giving the Respondent Husband notice that he may request the transfer of the Transferrable Benefits under r.7A.06 of the Superannuation Industry (Supervision) Regulations 1994.
c.the service of the payment split notices and the r.2.36C notice to be served within 28 days of the operative time or within 28 days of service of this Order on the Trustee. whichever is the later.
Step 11: The Respondent Husband shall make the r.7A.06 Request to transfer of the Transferable benefits on his behalf to the Respondent Husband's New Super Fund, such request to be made within 228 days of his receipt of the payment split notice.
Step 12: The Respondent Husband shall make the Rollover Request to rollover the amount of his member benefits on the Transfer Day such request made contemporaneously with the Respondent Husband's r.7A.06 Request.
Step 13: The Trustee shall prepare a statement of financial position (as mentioned in s.35B of the Superannuation Industry (Supervision) Act 1993) to record the up to date amount of each member benefit for the Transfer Day.
Step 14: The Trustee shall calculate the Transferable Benefits on behalf of the Respondent Husband, calculated as follows:
a.Identify the Base Amount from Step 3:
b.Do not adjust the base amount as mentioned in r.1.03 (para (b) of the definition of transferable benefits of the Superannuation Industry (Supervision) Regulations
c.The result is the amount of the Transferable Benefits established for the Respondent Husband;
d.The taxation and preservation components of the Transferable Benefits are in the same proportions as the taxation and preservation components of the Applicant Wife's member benefit on the Transfer Day.
e.The Trustee may combine the Transferable Benefits established for the Respondent Husband with the Respondent Husband's existing member benefit proportioning the taxation and preservation components in accordance with the respective proportioning rules.
Step 15: The Trustee shall transfer the Transferable Benefits and rollover the amount of the Respondent Husband's member benefits on the Transfer Day after the operation of the splitting order and the Trustee shall sell, liquidate or otherwise realise in cash the necessary investments held by the Trustee so that the transfer on behalf of the Respondent Husband on the Transfer Day shall be a transfer in cash.
Step 16: The Respondent Husband shall:
a.Resign as a director of the Trustee of the Carew Super Fund.
b.Transfer his shareholding in the Trustee Company of the Carew Super Fund to the Applicant Wife.
c.Resign as a director of the Trustee of the Bare Trust.
d.Transfer his shareholding in the Bare Trustee to the Applicant Wife.
e.Acknowledge the termination of his membership of the Carew Super Fund; and
f.Relinquish all rights and authorities in relation to the management and administration of the Carew Super Fund including but not limited to operating bank accounts of the Carew Super Fund and removing himself as a signatory on the said accounts as well as the surrender of all passwords and other rights of digital access.
12.Pending the transfer of the Transferable Benefits and the rollover of the Respondent Husband's member benefit to the trustee of the Respondent Husband's New Super Fund, the Respondent Husband and the Applicant Wife be and are hereby restrained from:
a.Making a death benefit nomination in favour of a child as described in r.13 of the Family Law (Superannuation) Regulations 2001:
b.Dealing with, charging, encumbering or disposing of any item of investment property in Carew Super Fund other than in accordance with these Orders:
c.Exercising power under Carew Super Fund Governing Rules:
To appoint. but subject to the Order immediately following this Order a replacement or a new trustee: and
To admit a person as a member of the Carew Super Fund: and
d.Making any application to the Trustee for the transfer or payment of member benefits, in whole or in part. other than in accordance with the terms of this Order.
13.In the event of the death of either the Respondent Husband or the Applicant Wife, or the loss of capacity of either the Respondent Husband or the Applicant Wife, requiring the appointment of a legal personal representative of either the Respondent Husband or the Applicant Wife and before the transfer of the Transferable Benefits and the rollover of the Respondent Husband's member benefit:
a.Any death benefit or benefit by way of total and permanent incapacity, to be paid by the Trustee in accordance with Carew Super Fund Governing Rules shall only be determined after the Trustee has observed the obligations under these Orders: and
b.This Order shall operate as an amendment to, and be incorporated into, Carew Super Fund Governing Rules as a Trustee amendment in accordance with the said Governing Rules.
14.These Orders bind the legal personal representatives, beneficiaries, successors, heirs and assigns of the Respondent Husband and the Applicant Wife and in the event of:
a.the loss of capacity of either the Respondent Husband or the Applicant Wife, or both of them: or
b.the death of either the Respondent Husband or the Applicant Wife, or both of them:
c.the legal personal representative holding an enduring power of attorney of the party losing capacity or the legal personal representative of the deceased (as the case may be) shall be appointed as a director of a Trustee of the Carew Super Fund so that the Carew Super Fund continues to meet the definition of a self-managed superannuation fund in s.17A of the Superannuation Industry (Supervision) Act 1993 and the legal personal representative so appointed shall observe the obligations under these Orders of the party who has lost capacity or is deceased (as the case may be).
15.Except as otherwise provided for in these Orders, the Wife and the Husband each be the sole legal and beneficial owners of all items of all property including household contents, money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively to the exclusion of the other.
16.Except as otherwise provided for in these Orders, the parties are each solely entitled to the exclusion of the other to all financial resources of whatsoever nature and kind in their name, possession, or control and to which they are or may become entitled.
17.Except as otherwise provided for in these Orders, each party shall retain to the exclusion of the other, sole responsibility for all and any liability currently in their names.
18.Each party shall do all things necessary including providing all consents to give effect to these Orders in the time periods described in these Orders.
19.In the event that either party fails or neglects to sign any document pursuant to these Orders, a Registrar of the Federal Circuit and Family Court of Australia (Division 2) is hereby appointed to execute such documents in the name of the party in default so as to give validity and operation to these Orders pursuant to s 106A of the Family Law Act1975 (Cth) upon being satisfied of such failure or neglect by way of affidavit evidence.
20.Save as to costs, all outstanding Applications and Responses are otherwise dismissed.
21.Should any party wish to make an application for costs of or incidental to these proceedings, they are to file and serve within 28 days of the date of these orders an Application in a Proceeding specifying the orders sought as to costs and any affidavit in support thereof of no more than 5 pages and 5 annexures.
22.In the event that no application is filed pursuant to Order 26 then all applications for costs are dismissed.
AND IT IS NOTED:
A.In making the Splitting Order:
a.The duty under s.81 of the Family Law Act 1975 to finally determine the financial relationships between the parties depends on when a splittable payment becomes payable; and
b.Service of this Order on the Trustee will enliven the Trustee' obligations in accordance with the operating standards under Part 7A of the Superannuation Industry (Supervision) Regulations 1994 and the effect of those obligations is to finally determine the financial relationships between the parties.
B.The value of the Transferable Benefits in the name of the Respondent Husband is calculated in accordance with r. 7 A.12 of the Superannuation Industry (Supervision) Regulations 1994.
C.Pursuant to r.14F of the Family Law (Superannuation) Regulations 2001, and payments from the Applicant Wife's superannuation interest in the Carew Super Fund made after the Trustee has transferred the Transferable Benefits on behalf of the Respondent Husband are not splittable payments.
D.The operation of the Splitting Order constitutes a family law superannuation payment as that term is defined in s.307-5(7) of the Income Tax Assessment Act 1997.
E.The taxation components of the Respondent Husband's superannuation interest after the operation of the Splitting Order are worked out in accordance with the proportioning rule in s 307-125 of the Income Tax Assessment Act 1997 by the incorporation of the taxation components of the Applicant Wife's superannuation interest into the Respondent Husband's superannuation interest in the proportion that each component bears to the total.
F.The preservation components of the Respondent Husband's superannuation interest after the operation of the Splitting Order are worked out in accordance with the proportioning rule in r.7A.12(3) and (3A) of the Superannuation Industry (Supervision) Regulations 1994 by the incorporation of the preservation components of the Applicant Wife's superannuation interest into the Respondent Husband's superannuation interest in the proportion that each component bears to the total.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
These are financial proceedings commenced by the applicant wife on 16 September 2022 seeking orders for the adjustment of the parties’ property pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”) following the breakdown of their 14 year marriage.
The parties commenced cohabitation when they married in 2004. They separated in November 2018 but remained living under the same roof until the husband vacated the property in August 2022, nearly four years after separation. A Divorce Order was made in 2021. The relationship was thus for a period of 14 years with the parties living under the same roof for a period of 18 years.
There are four children of the relationship aged 19, 16, 12 and 10. Consent orders made on 25 November 2022 broadly provide that the children live with the wife and spend alternate weekends with the husband together with half school holidays.
It was the husband’s case that the wife was the primary income earner and he was primarily responsible for undertaking the parenting and homemaker tasks. The wife asserts that she was both the primary breadwinner and primary carer of the children. A significant amount of the parties’ written and oral evidence was expended on the minutiae of the day-to-day tasks undertaken in the household over the 18 years the parties lived under the same roof.
EVIDENCE
A direction was made at the commencement of the hearing that no annexures to affidavits or exhibited documents would be read in the matter until they were individually tendered.
The parties prepared:-
·A Joint Chronology (Exhibit J3); and
·A Collaboratively Prepared Trial Balance Sheet (Exhibit J4).
The wife relied upon the:
·Further Amended Initiating Application filed 30 August 2024;
·Wife’s Costs Notice filed 30 August 2024 (Exhibit W3);
·Wife’s Objections to husband’s affidavit material (Exhibit W2);
·Outline of Case filed 30 August 2024 (Exhibit W1);
·Affidavit of Mr L filed 29 August 2024;
·Affidavit of Millie Poljak filed 29 August 2024;
·Wife’s Affidavit filed 24 June 2024;
·Wife’s Financial Statement filed 24 June 2024;
·Affidavit of the parties’ eldest daughter (“the daughter”) filed 24 June 2024; and
·Material tended throughout the course of the hearing.
The husband relied upon the:
·Further Amended Response to Initiating Application filed with leave on 5 September 2024;
·Husband’s Costs Notice filed 31 August 2024 (Exhibit H3);
·Husband’s Objections to wife’s affidavit material (Exhibit H2);
·Outline of Case filed 30 August 2024, excluding the husband’s Minute of Order contained in Part B at pages 2 – 10 (Exhibit H1);
·Affidavit of the husband filed 1 July 2024;
·Affidavit of Ms O dated 1 July 2024;
·Husband’s Financial Statement filed 1 July 2024;
·Husband’s Financial Questionnaire filed 21 October 2022; and
·Material tendered throughout the course of the hearing.
CREDIT ISSUES
Counsel for the husband submitted that witness credibility is a central issue in this matter. It was submitted that the court would not accept the evidence of the wife or the parties’ eldest daughter unless it was verified by an independent document, such submission arising from the exaggerated content and nature of their respective evidence.
The wife clearly deposes in her affidavit that: -
·During her periods of maternity leave she was solely responsible and undertook the care of each of the children in addition to attending to all of the domestic duties in the home;
·That:
Upon arriving home from work our children automatically became my sole responsibility. On the weekends our children were my sole responsibility.[1]
(emphasis added)
·During the marriage she “almost solely” took on the responsibility relating to the children’s health issues.
·Subsequent to the parties’ separation she paid the capital gains tax liability of $27,923 arising from the sale of the Suburb G investment property held solely in her name purchased during the course of the relationship.
·The husband had been charged with breaching an earlier Apprehended Domestic Violence Order following an incident in early 2022.
[1] Wife’s Affidavit, paragraph 194.
The wife conceded during the course of cross examination that: -
·She had exaggerated all evidence in which she claimed she was the “sole” carer; that the husband had cared for the children whilst she was at work, and there was a “balance” in the parenting responsibilities.
·She had minimised the parenting tasks undertaken by the husband with respect to the children.
·Despite conceding that she had failed to include in her affidavit the role and tasks the husband undertook of a parenting and homemaker capacity, she continued to assert that “like I said, what I say in the affidavit is correct” and this occurred as she had to “focus on [her] contribution,” and that there was only so much she could contain so she had to “be mindful of what [she] had to contribute.”
·When asked why she had focused on her contributions and minimised the husband’s contributions, the wife responded that it was because “he does with every document I’ve seen him write” and that “when I read [the husband’s] affidavit, he never once acknowledges my parental and domestic contribution to our marriage.”
·She had not paid the sum of $27,923 by way of capital gains tax but instead $17,671. The wife asserted that this was a mistake and that she did not understand the amount of $27,923 was referencing taxable income.
·The husband was not charged with breaching the ADVO as previously asserted, having only learnt that was not the case from reading the husband’s tender bundle.
·The wife has a social media page which asserts that she has post-graduate qualifications. She conceded that she does not have a degree, but asserted that “she studied most of it.” Despite conceding that by doing this she intended to give people the impression that she holds this degree even though she doesn’t, she then asserted that doing so was not untruthful and that “if someone was to ask me, I would tell them” that the qualification was incomplete: “I won’t lie.” I found such a response incredulous.
·She had accessed the husband’s sole bank account records on numerous occasions without his knowledge or consent, including one week prior to the trial.
During the course of her cross examination, the wife was forced to concede on more than one occasion that even her oral evidence had been exaggerated; for example, finally admitting that her claiming of “never” leaving the office after 5:30 pm was an exaggeration. Despite conceding that she had exaggerated her role in solely caring for the children, she refused to accept that she had minimised the husband’s homemaking and parenting role.
The wife further clearly gave oral evidence that she did not have home contents insurance. When a home insurance certificate was called for and produced, it recorded that the wife did indeed have such insurance.
Whilst there are aspects of the evidence of the wife that are clearly incorrect and exaggerated, I am not satisfied that I cannot accept the evidence of the wife outright unless it is corroborated by independent evidence. I accept however that the wife has exaggerated her evidence to present her case in its best possible light. Her evidence was marked by inconsistency, and she was loath to make concessions. Any concessions made were generally limited in nature and arose only by repeated questioning. I approach her evidence with some caution.
Ms P, the wife’s sister, was cross examined for a short period of time. During the course of giving her evidence Ms P did not appear able to answer the questions asked of her; there were lengthy pauses, and the answers were non-responsive and incoherent. My concern as to the witness’ capacity to give evidence was such that I adjourned for a brief period. Upon the hearing resuming I was advised by counsel that the affidavit of Ms P was no longer read.
I reject the husband’s submission that I am entitled to take account of the fact that an affidavit was tendered seeking to support the wife’s case and then withdrawn because the witness seemingly could not answer basic questions. I am not satisfied that I can draw any inference from the wife no longer pressing for the affidavit of her sister to be read. I have no evidence as to why the witness and her evidence was withdrawn.
The parties’ eldest daughter gave evidence for the wife and was cross-examined. She was eighteen years of age at the time of the hearing. Whilst accepting her tender age, I place limited weight on her evidence because: -
·She constantly asked “clarifying” questions in reply to simple questions asked of her. I formed the impression she was attempting to ascertain the purpose of the question prior to providing a response.
·Her evidence as to her observations of the parties in the household was to a significant extent broad and unparticularised: “During my parent’s marriage I saw…” .
·She was only thirteen years of age when the parties separated and seventeen years of age when the husband vacated the Suburb C property. She somewhat begrudgingly conceded during her oral evidence that there would be some things she would not remember from when she was a baby and a toddler and therefore her recall was somewhat limited.
·She lives with her mother and it appears that she is reliant solely upon her for financial support. The wife admitted during her cross-examination that she had involved the daughter in settlement discussions between herself and the husband.
·She appeared loath to answer questions asked of her and was defensive during her cross-examination.
I formed the impression from the drafting of the affidavit, her answers to questions and her demeanour in the witness box that the daughter is clearly aligned with her mother and therefore little weight can and will be placed on her evidence.
The wife, whilst submitting that some of her concessions were merely a mistake, then submitted that if it is a question as to whose evidence is to be accepted when evaluating parenting contributions, it should be the wife’s as:-
·The husband was reluctant to give evidence about when he provided the wife with his residential address upon vacating the Suburb C property and was not prepared to nominate the first time the children spent overnight time with him.
·The husband corrected his affidavit during his evidence in chief. He gave oral evidence that his written evidence deposing that if he had not cleaned the house to the wife’s satisfaction the wife threw things at him was incorrect – a later paragraph deposing as to the wife throwing a notepad at his head when he asked her for money to purchase stationery was the only time that the wife had thrown an object at him. He further gave oral evidence that his assertions on two occasions in his affidavit that he was “entirely” responsible for the moving of the household to a rental property was inaccurate and he did not undertake “all” the chores around the home; the wife undertook the cooking and the clothes washing.
The husband clearly deposed that he has difficulty recalling dates with precision and thus he may have inadvertently misremembered them. This was reflected in his oral evidence; when tasked with answering a question about specific dates, he maintained that he could not remember. He further clearly asserted that his knowledge of financial information during the marriage was extremely limited in a context where it is undisputed that the wife was the major financial contributor.
I do not understand nor accept counsel for the wife’s submission that the husband’s evidence that he believes he first saw the children upon his vacating the Suburb C property at the end of winter in any way impugns his credit, nor do I understand the relevance of the time of provision of the husband’s residential address to the wife, particularly considering this is a property matter. The husband clearly concedes that the wife has made greater parenting contributions post-separation in circumstances where the children are only in his care two nights a fortnight.
I do not accept that this is a matter where I would, as a matter of course, accept the evidence of one party over the other or not accept a party’s evidence unless it was independently verified.
I do, however, find that the husband was a credible witness. He readily made concessions and answered questions asked of him in a clear, direct and forthright manner. For example, when asked an open question as to whether the wife swore at him, he willingly gave evidence that she does not ever swear and readily conceded that his affidavit was incorrect in this respect.
The husband’s mother was clear and direct in her evidence and readily conceded when she could not recall events or circumstances. I found her to be a credible witness.
BACKGROUND AND FACTUAL FINDINGS
The husband was born in 1970 and the wife was born in 1970.
In 1998 the wife acquired an interest in a property at M Street, Suburb Q in the state of New South Wales (“the Suburb Q property”) with her sister Ms R.
In 1998 by way of agreement between the wife and Ms R, the wife assumed full ownership of the Suburb Q property together with its resultant liabilities. The wife’s parents lived in this property. The wife deposes she received payments of $500 per week from her parents for their rental of the Suburb Q property. The husband deposes that he is not aware of any such payments. There is no independent evidence as to the receipt by the wife of any monies from her parents by way of rent.
Approaching the wife’s evidence with some caution, I am not satisfied that the wife has discharged the evidentiary burden that would allow me to find that any rental monies were received by the wife’s parents as alleged by her. It is an arid argument in any event – there is no evidence as to how the alleged rental monies were applied, bar that they were received by the wife, nor is there evidence as to the actual length of time the wife’s parents lived in the property; on the wife’s evidence they moved in or around mid-1999, Ms R moved in with them following her car accident in 2006, and the house was sold in 2014. It is unclear when they moved out.
In late 2002 contracts were exchanged for the husband’s purchase of S Street, Suburb T in the state of New South Wales (“the Suburb T apartment”).
The parties met in 2003. The husband was living in the Suburb T apartment property when the parties met. The wife was living in rental accommodation at Suburb U.
The parties married and commenced living together in 2004. The husband moved into the wife’s rental unit in Suburb U at this time.
There is a dispute as to the use of the Suburb T apartment after the husband vacated it to live with the wife. The husband asserts that the property was rented to a young couple and that the wife asked the husband to transfer to her all the rental income. The wife asserts that the property was left vacant and in a disarrayed state, and that the husband refused to maintain it from the commencement of the marriage until late 2005. The husband bears the onus to establish that it was rented and has failed to do so, his explanation at trial being that V Company purportedly do not store records that far in the past. No bank statements were tendered to evidence the receipt of any rental monies. In those circumstances I cannot find that the property provided any income to the parties prior to its sale.
It is uncontested and I find that at the commencement of cohabitation the wife made direct financial contributions of: -
·an interest in M Street, Suburb Q (“the Suburb Q property”) subject to a mortgage;
·savings of $20,000;
·a motor vehicle;
·shares in W Company;
·household contents; and
·superannuation entitlements.
The husband readily conceded during the course of cross-examination that at the commencement of the parties’ relationship the wife paid in full his liabilities of $5,000 and I so find. It is uncontested and I find that at the commencement of cohabitation the husband owned outright the Suburb T property purchased for him by his father together with his own superannuation entitlements.
At the commencement of cohabitation the wife was employed with W Company as a professional with her ATO Notice of Assessment marking a taxable income for the 2003 financial year of $48,251. The husband was undertaking a government program whereby he worked to receive government benefits. He was not otherwise engaged in paid employment. Save for teaching some sports classes, the husband was not otherwise engaged in paid employment until post separation.
In mid-2004 the parties moved into rental accommodation in Suburb BB. The parties remained living there until 2005 when, upon becoming aware of the wife’s pregnancy, they moved to the property at B Street, Suburb C (“the Suburb C property”) owned at that time by the wife’s sister and her husband.
The wife asserts that the rental of $500 per week paid by the parties to the wife’s sister and brother-in-law for the Suburb C property was at a discounted rate; such rate being below market value. It was put to the wife in cross-examination that the valuation report for the property annexed to her affidavit had an assessment value of $350 per week, to which she denied. Such document was not tendered by the husband. In any event, there is no expert evidence to ground such a finding and accordingly I cannot find this was so.
The Suburb T apartment was sold by the husband in late 2005 for the sum of $115,000. There is no evidence as to the precise sum received by the husband from the sale of the Suburb T property after payment of selling costs, though the figure of $110,00 was volleyed during the trial. During opening discussions, counsel for the wife stated that $110,000 of that sum was applied to the Suburb C property. The wife agreed in cross-examination that $110,000 existed in net proceeds from the sale of the apartment. I am satisfied and find that it is probable that the husband received the net sum of $110,000 from the sale of the Suburb T property.
Shortly after this sale the parties entered into a verbal agreement with the wife’s sister and her husband to purchase the Suburb C property for the sum of $490,000.
Whilst the wife’s submission that the husband’s assertion that the proceeds of sale of the Suburb T property were applied to the acquisition of the Suburb C property is in dispute, the wife in her own affidavit deposes:
[Ms QQ] and [Mr CC] financially assisted [Mr Carew] and I by accepting the deposit of $130,000 paid from [Mr Carew]’s net sale proceeds of his [Suburb T] apartment and my savings.[2]
I accept and find that the proceeds of sale of the husband’s Suburb T apartment in the sum of $110,000 was applied to the purchase of the Suburb C property with the balance of the deposit monies of $20,000 sourced from savings procured by the wife’s income.
[2] Wife’s Affidavit, paragraph 113.
By oral agreement the balance of $360,000 was to be paid at a later date when the parties were able to secure a loan for the Suburb C property. The wife submits that because the value that was ascribed to the property a year later for stamp duty purposes was $590,000, the parties purchased the property under value. There is no evidence before me of the value of the property at the time of the oral agreement to purchase it for $490,000. I cannot make this assumption and reject the wife’s contention in this regard.
The parties’ first child, Ms Z was born in 2005. The wife took a period of paid maternity leave.
In 2006 the parties obtained a loan from AA Bank in the sum of $360,895 to enable the purchase of the Suburb C property to be progressed and the parties’ exchanged contracts in late 2006 for $360,000.
It is uncontested that the wife’s sister, Ms R was critically injured in a motor vehicle accident in 2006. Subsequent to this accident Ms R received the sum of approximately $560,000 by way of motor vehicle accident claim. In 2007, the wife and Ms R orally agreed that the wife would sell to her the Suburb Q property for the sum of $400,000. No steps were taken to formalise this agreement. The wife deposes that she received the following sums in payment for the sale of the property:
·$25,000 on 25 October 2007;
·$50,000 on 1 November 2007;
·$25,000 on 27 November 2007;
·$256,568.15 on 2 July 2008;
·$3,431.85 in July 2008; and
·$40,000 “in or about 2014”.
It is uncontested and I find that the 2007 payments received totalling $100,000 were applied by the wife to the AA Bank Home Loan secured by way of mortgage over the Suburb C property. It is uncontested and I find that the sum of $256,568.15 transferred on 2 July 2008 was also applied towards the AA Bank Home Loan mortgage. It was not the subject of dispute that the sum of $3,431.85 was received by the wife in July 2008 and this sum was applied to household living expenses and I so find. On 2 July 2008, the AA Bank Home Loan mortgage was discharged in full.
The husband does not concede that the wife received the sum of $40,000 in or about 2014. The wife does not depose as to the application of such funds, nor is it particularised how such funds were received; be it by a lump sum payment or in tranches. The tender of a document purportedly verifying the wife’s assertion was not pressed over the objection that it had not been disclosed prior to its proposed tender. The wife submits that a finding can be made as sought by her as her evidence was not challenged in cross-examination. The husband submits that cross-examination of the wife’s assertion would have occurred if there was a document allegedly supporting same and that I would reject the wife’s assertion due to her credit issues. It was clear from the outset of the final hearing that the husband did not concede the wife’s assertion as to the receipt of these monies. The wife bears the evidentiary burden. I am not satisfied I can make a positive finding on the wife’s unparticularised evidence.
X was born in 2008. The wife again took a period of paid maternity leave.
In early 2011 the wife ceased employment with W Company. She commenced working for MM Company as a professional in approximately early 2011.
In late 2011, an application to demolish the existing structure on the Suburb C property was approved by Council. During this year a loan was obtained from the Commonwealth Bank of Australia secured over the Suburb C property.
Y was born in 2011. The wife took a period of unpaid maternity leave.
In late 2011 a Council Development Application by FF Company to construct a new home at the Suburb C property was made. In 2011/2012 the parties vacated the Suburb C property and lived in a rental property for ten months whilst the new home was built.
In early 2012 the wife commenced work with GG Company as a professional.
In late 2012 a FF Company Interim Occupation Certificate for the Suburb C property was issued.
The parties’ fourth child, EE was born in 2013. The wife took a period of maternity leave.
In mid-2015 the wife commenced working as a professional on a contractual basis. In mid-2015, the wife established the company HH Pty Ltd.
The property situate at F Street, Suburb G in the state of Queensland was purchased in late 2015 as an investment and registered in the wife’s sole name (“the Suburb G property”).
In early 2018 the parties’ self-managed super fund, Carew Super Fund, was established. It is uncontested that the super fund holds certain assets; those being cash in the bank, and real property in City K, Queensland. That property is subject to a mortgage to JJ Bank.
At some point in 2018 the mortgage over the Suburb C property was refinanced with E Bank.
The parties separated under the same roof on 15 November 2018.
In late 2019 the wife commenced working on a contractual basis for KK Company as a professional. She commenced full time employment with them in late 2020. At this time the wife commenced closing down HH Pty Ltd.
In early 2021, a provisional Apprehended Domestic Violence Order was made for the protection of the wife and restricting the behaviour of the husband.
In early 2022 the husband commenced full time employment with LL Company as a transport worker. He continued his work as a sports instructor.
A Final Apprehended Domestic Violence Order protecting the wife and restricting the behaviour of the husband was made in mid-2022.
In mid-2022 the wife made a voluntary application for the deregistration of HH Pty Ltd. The two company assets were disposed of, those being Motor Vehicle 1 and the company bank account, which was closed.
In mid-2022 the husband moved out of the Suburb C property and into rental accommodation in Suburb N.
In early 2023 the sale of the Suburb G property was completed. In late 2023 the solicitors for the husband invested the net sale proceeds of the Suburb G property into an interest bearing account on behalf of the parties.
The husband’s father died in 2023.
In late 2023 a caveat by D Pty Ltd was secured over the husband’s interest in the Suburb C property.
Probate was granted for the Estate of the husband’s father in 2024. The husband subsequently received an inheritance from his estate.
THE COMPETING PROPOSALS
The wife seeks orders in accordance with her Further Amended Application and as set out in her Outline of Case that broadly: -
·The husband transfer his interest in the Suburb C property to the wife at which time the wife will discharge the loan secured by way of mortgage over the property.
·The husband do all things necessary to cause D Pty Ltd ("the Caveator") to withdraw the caveat secured over the Suburb C property, indemnify the wife and pay all costs arising with respect to same.
·The husband receive the net proceeds of sale of the Suburb G property in the sum of $61,016, with such monies to be applied towards the husband’s obligations to cause the caveat secured over the Suburb C property to be removed and any remaining balance thereafter to be paid to the husband.
·That simultaneously with the husband’s compliance with the above orders the wife pay to him the sum of $188,415. In default, the Suburb C property is to be sold and from the net proceeds of sale the husband be paid the sum of $188,415 together with interest thereon pursuant to s 117B of the Family Law Act1975 (Cth) (“the Act”).
·Pending the husband transferring his interest in the Suburb C property to the wife or its sale: -
·the wife shall have the sole right to occupy the property and shall pay the electricity, gas and water usage;
·each party shall pay one half of the minimum monthly loan repayments, home building contents insurance, council rates and water rates except water usage and as and when they fall due;
·the parties hold their respective interest in the property upon trust pursuant to these orders; and
·neither party shall encumber the property without the consent in writing of the other party.
·The wife to receive all funds in the parties’ joint bank account of $3,240.
·There be a super splitting order of $10,000 of the Wife’s interest in the SMSF to the Husband.
·Each party otherwise retain all items of property in their possession, power or control.
·Each party otherwise retain all liabilities in their name.
·An order pursuant to s106A of the Act.
·That the husband pay the wife’s costs.
The relief sought by the husband is as set out in his Further Amended Response filed 5 September 2024 that, broadly: -
·The husband transfer his interest in the Suburb C property to the wife at which time the wife will discharge the loan secured by way of mortgage over the property.
·Simultaneously with the husband transferring the Suburb C property to the wife the wife pay to the husband the sum equivalent to effect an overall equal distribution of the net assets and superannuation interests of the parties (“the principal sum”). In default, the Suburb C property is to be sold and from the net proceeds of sale the husband be paid the principal sum and interest thereon.
·The proceeds of sale of the Suburb G property be paid to the parties so as to affect an overall equal division.
·Any joint bank accounts be closed and the balance divided between them so as to effect an overall equal division.
·There be a super splitting order of $200,000 of the Wife’s interest in the SMSF to the Husband.
·Each party otherwise retain all items of property in their possession, power or control.
·Each party otherwise retain all liabilities in their name.
·An order pursuant to s106A.
·That the wife pay the husband’s costs.
The drafting of the orders sought by the wife as to superannuation splitting orders is complex and detailed, comprising some six pages. The parties agree that I adopt such drafting if a superannuation splitting order is made.
THE STATUTORY REGIME
In determining claims for alteration of property interests pursuant to s 79, I am required to:
(a)Make findings as to the identity and value of the property, liabilities, and financial resources of the parties, or either of them, at the time of the hearing and determine the legal and equitable interests of the parties in such property;
(b)Consider, identify and assess the contributions by the parties to the acquisition, conservation and/or improvement of their property, including financial and non-financial contributions and any contributions to the welfare of the family before, during and after the relationship came to an end;
(c)After consideration of altering the interests in the property pool on the basis of contributions, to consider whether there should be any further adjustment to either of the parties on account of the matters set out in s 79(4)(d)-(g) of the Act, including any relevant considerations pursuant to s 75(2) of the Act; and
(d)Ensure that the orders to be made are just and equitable in all the circumstances.
THE PROPERTY OF THE PARTIES
The parties agreed as to the construction of the balance sheet save as to items relating to an inheritance received by the husband post separation.
Items 4, 14 and 15 of Exhibit J4: The Husband’s Inheritance
The husband’s father passed away in 2023. Probate was granted in early 2024. The beneficiaries of the Estate are the husband and his brother in equal shares. The Inventory of Assets prepared for the grant of probate records the value of the estate at $991,639. It is not contested that subsequent to his father’s passing the husband has received:-
·the sum of $209,994.45 in early 2024, being the payment of his father’s life insurance;
·the sum of $267,305 in early 2024; and
·his late father’s motor vehicle with an agreed value of $10,000 (being item 6 on the Balance Sheet). There is no dispute that Item 6 will remain on the Balance Sheet and form part of the property pool available for adjustment between the parties.
There is no evidence that the husband is to receive any further funds or property by way of inheritance.
It is uncontested that from such monies received the husband paid to his mother sums totalling $83,079 over a four-day period in early 2024 and the sum of $63,582 to D Pty Ltd on unspecified date/s.
The wife seeks that savings in the husband’s sole Commonwealth Bank account in the sum of $322,013 form part of the pool available for adjustment between the parties. She further seeks that the sum of $83,079 transferred to his mother and $63,582 transferred to D Pty Ltd be notionally added back to the pool of property and credited against any adjustment of property the husband receives.
The husband concedes the sum of $2,678 should be on the Balance Sheet by way of his savings held with the Commonwealth Bank. He disputes that any monies should be notionally added back to the property pool.
The wife’s oral submissions as to these items were that: -
·The wife concedes that the husband’s contribution to the inheritance was 100 percent.
·The authorities are clear as to my complete discretion on this issue.
·The husband’s inheritance should be in the order of $468,674.
·Item 4 is based on the husband’s bank account of $322,013 and the addbacks in items 14 and 15 which total $146,661. These payments it is agreed were derived from the inheritance.
·The inheritance at the very least should be seen in relation to a “multiple pool factor”.
The wife asserts by way of notes in the Balance Sheet that the amount of $322,013 was the sum held by the husband in his sole bank account as at 29 August 2024. This sum added to the monies paid to the husband’s mother and D Pty Ltd of $146,661 should be on the balance sheet to form part of the property pool available for adjustment, notionally or otherwise.
By way of notes in the Balance Sheet the husband asserts that he had the sum of $399,976 in this account as at 1 July 2024. Of that, the sum of $397,299 was received by way of the inheritance and thus the monies to remain on the balance sheet should be $2,678 only.
The husband has not illuminated how he has formed the conclusion that the precise sum of $397,299 is directly attributable to his inheritance. I am unable to ascertain how the husband has determined that of the sum remaining in his savings account, all but $2,678 came from his father’s inheritance. I was not directed to any evidence nor any submissions that illuminated this disputed item.
The husband’s oral submissions on these items were that: -
·The husband’s post separation inheritance should not form part of the total marital pool as the wife did not contribute to it. It was then asserted that it should be dealt with as a separate pool.
·The husband has not sought the wife’s legal fees to be notionally added back to the property pool as such fees were paid from post separation earnings, just as the husband’s legal fees have been paid from his post separation inheritance.
·If I were to make it a “whole pool”, then there should be an add back for the wife’s paid legal fees as well.
I find both parties’ submissions with respect to this issue to be inconsistent and contradictory. There is no evidence as to why the wife selected the date of 29 August 2024 to be the date at which point in time the husband’s savings are included on the balance sheet.
The parties agreed that their respective paid legal fees will not be notionally added back to the property of the parties available for adjustment in circumstances where such fees have been paid by monies received by them, either by way of earnings or an inheritance, post separation. The wife does not dispute that the monies paid by the husband to his mother and D Pty Ltd were in effect payment of his legal fees, and it was put to him in cross examination that his inheritance had been spent on legal costs:
COUNSEL: So you’d agree with me that you’ve effectively reduced your inheritance by whatever it is, close to 150,000 dollars to pay your legal costs?
HUSBAND: Yes.
The wife did not address this inconsistency, nor did she address the inconsistency in the husband’s paid legal fees being notionally added back to the pool and not the wife’s.
Property does not fall into a protected category merely because it is an inheritance: Bonnici (1992) FLC 92-272 at 79,019 - 79,020. Both the relevant definition of “matrimonial cause” and section 79 refer to all of the property held by the parties at the time of the hearing before the court: Calvin & McTier (2017) FLC 93-785 (“Calvin”). All of the property held by the parties or either of them can therefore be the subject of orders under section 79, regardless of when particular assets were acquired. There is no requirement to demonstrate contributions to a particular property to require its inclusion: Holland & Holland [2017] FamCAFC 166. The court ultimately retains a discretion as to how to approach the treatment of after-acquired property: Calvin.
The husband clearly has funds in his savings account. It does not appear to be in dispute that the main source of these funds was the monies received by the husband by way of his inheritance. Whilst such monies were received by the husband post the parties’ relationship and cohabitation, it is found later in these reasons that both parties made contributions in the post-separation period as they had done throughout the relationship. Subsequent to the husband vacating the home the parties’ contributions changed such that the wife bore the primary responsibilities with respect to the children both for their care-giving and financial support. Both parties have continued to make contributions up to the trial. It would be unjust and inequitable in those circumstances to exclude these monies from the property pool available for adjustment.
The husband does not assert the value as to his current savings in this bank account, should the court find that they should be included on the balance sheet. Thus the monies remaining in the husband’s bank account as at the closest date to the hearing will be included as part of the pool of property available for adjustment; being that asserted by the wife and not the subject of dispute in the sum of $322,013. How such monies will be assessed by way of contribution findings and any adjustment thereto will be determined later in these reasons.
There is no contest that the monies sought to be added back by the wife have been expended by the husband on legal fees. The wife’s legal fees have not been notionally added and it would be unjust in those circumstances for monies expended by the husband on legal fees to be so. This item is rejected.
Finding and Conclusions as to the Property of the Parties
Accordingly, I find that the property pool of the parties available for adjustment is:-
Ownership
Description
Value
ASSETS
1
Joint
B Street, Suburb C NSW
$3,150,000
2
Joint
Controlled monies held by Etheringtons
$61,016
3
Joint
E Bank Offset …66
$3,240
4
Husband
Commonwealth Bank …79
$322,013
5
Wife
Commonwealth Bank …03
$814
6
Husband
Motor Vehicle 2
$10,000
7
Wife
Motor Vehicle 3
$16,000
8
Husband
NN Company shares
$584
9
Wife
W Company shares
$11,079
10
Joint
Household contents
$2,500
11
Husband
Household contents
$2,000
Total
$3,579,246
LIABILITIES
14
Joint
E Bank …64
$222,410
Total
$222,410
NET TOTAL NON SUPERANNUATION PROPERTY
$3,356,836
SUPERANNUATION
Member
Name of Fund
Type of Interest
Applicant Value
15
Husband
Super Fund 1
Accumulation
$1,000
16
Wife
Super Fund 2
Accumulation
$18,040
17
Husband
SMSF: The Carew Super Fund
$61,051
18
Wife
SMSF: The Carew Super Fund
$490,062
Total
$570,153
NET TOTAL ASSETS (INCLUDING SUPERANNUATION)
$3,926,989
I find that the value of the parties’ non-superannuation property is $3,356,836.
I find that the value of the superannuation property is $570,153.
The total value of the non-superannuation property and superannuation property of the parties is $3,926,989.
The total value at law of non-superannuation property and superannuation property held by the wife prior to any adjusting order is $2,033,168.
The total value at law of non-superannuation property and superannuation property held by the husband prior to any adjusting order is $1,893,821.
WHETHER AN ORDER ALTERING PROPERTY INTERESTS SHOULD BE MADE
I should only make orders pursuant to s 79 of the Act if I am first satisfied that it is just and equitable to do so. It must not be assumed that the parties’ rights or interests should be different to that which already exists: Stanford & Stanford [2012] HCA 52 (“Stanford”).
I find that the requirements identified in Stanford are satisfied in this matter having regard to the fact that:
·The parties in this matter, having married and mixed their finances as a family, have now separated. It is therefore not possible for them to continue to mutually enjoy the accumulated assets.
·Both parties jointly own the Suburb C property.
·Both parties invoke s 79 of the Act seeking orders for property settlement.
·The current legal interest of the parties needing to be changed or adjusted when consideration is given to the contribution and other factors identified below.
It is therefore just and equitable in all the circumstances to make orders pursuant to s 79 of the Act adjusting the financial interests of the parties.
CONTRIBUTIONS
The Approach as to Contributions
The wife submits that a three pool approach should be adopted when assessing the parties’ contributions to the property pool available for adjustment:-
·the husband’s inheritance from his late father (“pool A”),
·the self-managed superannuation fund (“pool B); and
·the balance of the parties’ property including their respective interests in superannuation funds (“pool C”).
The wife submits this approach should be adopted as the self-managed superannuation fund is “akin to an inheritance”; it was created the same year the parties separated but remained living under the same roof and thus came late in the marriage.
It’s not as if, for example, hypothetically, it was a superannuation fund species of property that came very early in the marriage or even in the midway through the marriage where it otherwise gets mixed into the ..... contributions, including homemaker contributions, and should be seen as part of a global approach.
It was submitted that in those circumstances, the contribution aspect is “quite straightforward”, being what each of the parties have contributed in the last six years evidenced by their respective current legal interests in the fund.
The wife’s precise mathematical approach to the assessment of contributions mirrored her approach to the final hearing of this matter:
·She conceded that the contribution finding on Pool A, the husband’s inheritance valued at $468,674, should be 100% in the husband’s favour.
·Pool B, the self-managed superannuation fund with a value of $551,113, should be found to be in accordance with the parties’ existing entitlements and thus be 89% to the wife and 11% to the husband; and
·It was submitted that the court would assess the wife’s contributions to the balance of the parties’ non-superannuation and superannuation property being Pool C with a value of $3,052.863 to be 81% to the wife and 19% to the husband.
It was submitted then that if you “combine the three pools together, the overall contribution is about 73% to the wife and 27% to the husband.” It was not explained how this figure was arrived at. The wife submitted that if I were to make a finding that the husband’s conduct made the wife’s contributions more onerous, there would be an “extra three percent added”. Such an approach is not in accordance with settled authority.
The wife conceded that after a long marriage this may be thought to be “a very large percentage” but submitted that such an adjustment is appropriate as broadly:-
·even if it is accepted that the husband contributed the sale proceeds of the Suburb T property, this is dwarfed by the wife’s initial contribution of her equity in the Suburb Q property;
·the wife was the sole income earner for the entire 18 years the parties lived under the same roof;
·the Suburb C property was purchased at a discount;
·the wife was the primary person involved in the exercise of engaging the home builders and the organisation of both the building of the home and its landscaping and fencing;
·the wife engineered the income splitting arrangement between the parties;
·the wife solely contributed to the payment of the capital gains tax;
·the wife, whilst not solely, made significant homemaker and parenting contributions that were greater than the husbands.
It was submitted that in the event the husband’s inheritance does not form part of the property pool available for adjustment, the property pool would be reduced by approximately $468,674. In those circumstances a contribution finding should be made in the wife’s favour of 82% to the husband’s 18%.
The superannuation property the wife seeks to place into a separate pool is only that of the self-managed superannuation fund comprising cash at bank and a real property in Queensland. Its value is $551,113 or around 14% of the entire superannuation and non-superannuation property pool. Both parties are of the same age and will be able to access their superannuation entitlements at the same time. The other superannuation entitlements of the parties are not sought by the wife to be placed into a separate pool.
There is no evidence as to how current property in the self-managed fund originated. It may have come from property of the parties acquired during the course of the relationship. Each of the parties thus made financial and non-financial contributions to it. If the fund originated post separation, the ability of the wife to accumulate a higher superannuation interest arises from her ability to earn a higher income during the relationship and for a period of two years thereafter due to the husband undertaking a homemaker and parenting role. To place the self-managed superannuation property into a separate pool and to then make a finding the contributions to this fund should accord with the parties’ current legal interests is to ignore the husband’s contributions in this manner.
The husband submitted that there is no difficulty with the three-pool approach for the self-managed superannuation fund – but the suggestion that it comes in 2018 out of the ether is ridiculous:
What, there’s no super before 2018? Suddenly the assets get created?...There has got to be super before that for them to start the super fund because there has got to be money going in there. So the suggestion that the assessment should follow the precise legal interests in the super fund is fanciful..and should just reject it.
It was submitted that there is probably no need to change the assessment of superannuation versus the rest of the pool because “they’re both similarly aged people, have similar financial needs in retirement and so it would probably follow the assessment of contributions for the other species of property.” Whilst the husband had no difficulty with a three pool approach, in light of the submissions that the superannuation property would be assessed the same way as the non-superannuation property, I will proceed on the basis that the husband seeks that the assessment of contributions be undertaken on a two pool approach.
The husband submitted that the inheritance should not form part of the total marital pool; it should be dealt with as a separate pool. The court would made a contribution finding of 100% to the husband on this pool. I will call this pool “Pool A” as the wife did.
For the balance of the superannuation and non-superannuation property, the husband submitted that in an absence of a finding in the husband’s favour of Kennon, assessment of contributions would be 55% to the wife and 45% to the husband. If a finding was made as to Kennon, an adjustment of up to 5% in the husband’s favour would be made.
The husband submits that this finding is appropriate as:-
·The inheritance is a post-separation inheritance;
·It was the deposit monies received from the sale of the Suburb T apartment that was the springboard to the parties’ acquisition of property, not the wife’s.
·There however can be “little doubt” that initial contributions favoured the wife.
·It is uncontested that the wife was the almost sole financial earner during the relationship.
·From 2004 to August 2022 the contributions are equal, or if the court accepts the husband’s evidence as to Kennon, that a contribution finding would slightly favour him. By the time the husband vacated the home, the parties’ contributions were equal.
·There is no doubt that in the period post separation and post cohabitation – so the period August 2022 to date – the contributions have favoured the wife. She has earned the money and has had the greater care of the children.
The court retains a discretion as to how to approach the treatment of property acquired after separation. The approach of each of the parties seeks to selectively ignore the entirety of the contributions made by each of the parties both during the relationship and post separation to the current superannuation property and non-superannuation property. To treat the inheritance monies received by the husband as a separate pool and to make a finding that the husband contributed 100% to this particular asset ignores the post separation contributions made by the wife.
I do not accept that either party’s approach to the assessment of contributions achieves justice and equity in the circumstances of this matter.
The manner in which superannuation is to be treated is a matter for the court’s discretion. The Full Court has repeatedly affirmed that drawing distinctions as to the nature, form and characteristics of superannuation interests is an important task in certain cases: see Coghlan v Coghlan [2005] FamCA 429 (“Coghlan”).
The Full Court in Horrigan & Horrigan [2020] FamCAFC 25 reinforced the holistic approach espoused in Fields & Smith [2015] FamCAFC 57 and stated that the proper approach to the assessment of contributions is:
[35] …established that an assessment of contributions is not a mathematical exercise, but rather involves the identification and assessment of all of the parties’ respective contributions, in a holistic way across the course of the relationship and in the post separation period to the point of assessment…
I am therefore not satisfied having regard to the above that justice and equity dictates that the parties’ contributions to the self-managed superannuation fund only and the balance of the husband’s inheritance monies should be dealt with as separate pools of property. I am satisfied having regard to the length of the parties’ cohabitation and the financial and non-financial contributions made by each of them that a global approach to the assessment of contributions made by each of the parties is appropriate. It is appropriate that the assessment of contributions be made on two pools of property; the non-superannuation property ("the non-superannuation property pool”) and the parties’ entire superannuation property (“the superannuation property pool”) having regard to:-
·the age of the parties;
·the differing nature of the non-superannuation property pool as compared to the superannuation property pool; and
·each party seeking a superannuation splitting order in favour of the husband.
The Assessment of the Parties’ Contributions
The husband concedes that the wife was the main, and for significant periods of time the sole, income earner for the family until he vacated the Suburb C property in 2022 and I so find. Save for periods of time when she was on maternity leave the wife has at all times been engaged in paid employment outside the home. It is uncontested that the wife’s taxable income gradually increased from $49,800 in the 2004 financial year to $140,797 in 2019. After 2020, the wife’s income continued in an upward trajectory; she deposes in her written evidence that per her Notice of Assessment, her taxable income for the years post-separation was as follows:
2020 = $96,278
2021 = $184,071
2022 = $220,612
The wife’s income paid for household and personal expenses of the parties and the children. The wife was at pains to depose that she paid from her income 99 US dollars per quarter for the husband’s monthly online games membership. This was the subject of cross examination of the husband, who claimed such membership was $140 USD – “$70 for a six month subscription.” Whilst the exact cost of this membership was disputed by the husband, he readily conceded that this was paid from the wife’s income, though “in any case [he] calculated it and paid it all back to [the wife].” The amount is so de minimis I make no finding as to the cost. Delving into such minutia, including by advancing evidence of this nature, is reflective of the manner in which the wife conducted her case.
The husband did derive some income whilst the parties cohabited under the same roof. He taught sports classes three evenings a week.[3] From early 2011 classes were only taught on Saturdays during school terms. It does not appear to be the subject of contest that the small sums of money earnt from this endeavour, approximately $82 per fortnight, were paid into the husband’s sole bank account. The wife was at pains to state that he “used these funds for his own personal spending.” [4] It is the husband’s case that the wife would sometimes access these funds without his consent, the accusation of which will be explored later in these reasons as it relates to the husband’s contention of financially controlling behaviour.
[3] Husband’s Affidavit, paragraph 25.
[4] Wife’s Affidavit, paragraph 68.
The wife was the sole Director and shareholder of HH Pty Ltd. The husband received a wage from this endeavour as an administrative officer. It is uncontested that this was an income splitting exercise to minimise tax and the income earnt by the husband was applied to payment of the families’ expenses including the loan secured by way of mortgage over the Suburb C property. Each party asserts that this is a contribution made by them. I find that this was a contribution by the husband.
Though the husband does not address this incident directly in his written evidence, he attested to recalling the incident after being read the wife’s allegations during cross-examination. He conceded that they argued on that date about unwashed dishes. He vehemently denied that he “slapped her on her right hand” and pushed “her body toward the floor on that occasion” when briefly cross examined on the matter.
It was put to the wife in cross-examination that the husband never made contact with her on this occasion. The wife said that he made contact with her “multiple times.” It was conceded by the wife that the husband had never been charged with breaching the earlier Apprehended Domestic Violence Order as was alleged in her written evidence. No questions were put to the wife as to her allegation that the husband was charged with assault.
I am not satisfied that the wife has met her evidentiary burden for me to make a finding that the husband assaulted her on this occasion as alleged. The police attended and were shown a video recording, though such recording is not in evidence. I have no evidence that any charges were laid.
The wife deposes to the following further instances upon which the husband allegedly occasioned family violence upon her:
·In 2006, on at least two occasions the husband pushed her against the wall in the home and grabbed her throat to choke her. “Two similar incidents” occurred in 2007.[11]
·In 2010 while the family was holidaying in Country OO, the parties argued whilst the wife was driving with Ms Z and X in the back of the car. The husband allegedly used “vulgar” language towards her and punched the car radio screen, shattering it. He then allegedly proceeded to throw her handbag out of the car window, causing the contents to spread along the side of the road and her mobile phone to smash. The children were visibly distressed.[12]
·On an unknown date in 2010, the parties were arguing in the driveway of the former matrimonial home in the presence of Ms Z, to whom the husband said words to the effect of “your mother is a fucking cunt.” Ms Z then asked the wife “what is a cunt?”[13]
·In or around 2011, the husband again called the wife a “fucking cunt” in the kitchen of the former matrimonial home. After this incident, the wife was doing the dishes and was hit in the back by an object. The wife asserts that in the week following, she experienced pain and restricted movement meaning it was more difficult to engage in both her paid employment and her responsibilities around the home.[14] She confirmed that this did happen when asked in cross examination, though that she went to see her mother instead of a doctor and she didn’t get treatment for the injury because it “was a bruise.” It was put to her that she was exaggerating, which she denied.
·The husband on two occasions in 2011 punched and consequently dented the bonnet of the wife’s car.[15]
·During an argument in late 2014, the husband smashed an object onto the floor repeatedly, spraying plastic pieces throughout the room. He allegedly smashed such object into a wall, causing a large hole and his hand to bleed.[16]
·Throughout the marriage, the wife would cook traditional Country OO meals, the preparation of which caused the husband to say “the house stinks.”[17]
·In late 2021 the husband threw the wife’s phone against a wall and said “I will smash your head in.”[18]
·In late 2021 the husband remarked, in the presence of the children, that the wife was “100% a failure as a mother and wife” and that she was “100% at fault” for the marriage breakdown.[19]
·In early 2022, the husband said “You’re so cheap, nasty and petty, you’re always buying the cheapest stuff anything on sale like all dumb [Country OO people]. You’re a fucking cheap-ass bitch, you fucking cunt.”[20]
[11] Wife’s Affidavit paragraph 219
[12] Ibid paragraph 220.
[13] Ibid paragraph 221.
[14] Ibid paragraph 222, 223.
[15] Ibid paragraph 224.
[16] Ibid paragraph 225.
[17] Ibid paragraph 226.
[18] Ibid paragraph 235.
[19] Ibid paragraph 236.
[20] Ibid paragraph 237/
The wife’s assertions of family violence are acknowledged in the affidavit evidence of the parties’ daughter Ms Z, albeit in a vague and unparticularised manner. She merely mentions that the Police attended the family home “on at least five occasions” following the wife’s subjection “to family violence perpetrated by [the husband]” and that the police interviewed her on two occasions in 2021 and 2022 in relation to same. Her evidence does not assist the wife.
The balance of the husband’s evidence as to the wife’s assertions is brief and unhelpful. He deposes that the Police only took action on two occasions, one in 2016 and again it appears in late 2016. He deposes as to early 2021 as being in 2021. He then deposes as to another incident when the Police were called in 2021 after an argument over some items being left in the kitchen sink. His written affidavit is that the Police took no action. The extent to which he was questioned about the undated 2021 matter is what has been recorded in paragraph 138 above.
The husband’s criminal antecedence is not in evidence. Its provision would have provided clarity as to what exactly the husband has been charged with and convicted of noting the volleying of multiple charges throughout the hearing.
The husband conceded that on occasion he had sworn at the wife, but it was less vulgar than that asserted by her, and he continually denied he had ever called her a “cunt”.
It was put to the wife in cross-examination that the balance of her allegations as recorded in paragraph 141 above were not true or exaggerations. The wife affirmed that they were true. The majority of those allegations were not put to the husband in cross-examination. I am not able to be satisfied to the requisite degree having regard to the wife’s exaggeration of her evidence in other areas which undermines her credibility that she has established to the requisite degree that the husband occasioned further instances of family violence upon her as alleged.
Throughout the two-year course of the litigation and at trial, the wife had ample opportunity to give evidence as to the discernible impacts of the husband’s alleged violent conduct. Though it is factually found that the father perpetrated family violence on the aforementioned occasions, the wife has adopted a minimalistic, broad-brush approach when describing the degree of impact on her capacity to contribute for the benefit of family. The wife’s evidence as to the effect on her was that she experienced “stress and anxiety”. Whilst she deposes that she was vulnerable and exhausted almost all of the time, there was no direct evidence that this arose as a consequence of the husband’s actions. I cannot safely determine a nexus between the husband’s behaviour and the assertion of contributions being made more onerous on the evidence.
The husband deposes that a hallmark feature of the relationship from 2009 onwards was the financial, verbal and psychological abuse perpetrated by the wife upon him. Some of the husband’s evidence was vague whilst other allegations are described in detail.
The husband deposes that the wife was extremely controlling of the finances throughout the marriage and would not permit him access to any joint funds until 2010. The only finances he had access to until this time was his income from the sports classes; he was otherwise completely reliant upon the wife for money. The husband asserts in his written evidence that the wife set up a bank account for the husband wherein she would deposit $100 per week for groceries and other miscellaneous household expenses. Should the husband require any further funds, he would ask the wife and she would transfer the funds if she agreed; if she did not agree the funds would not be transferred.
The husband further deposes that the wife had access to his personal account and would regularly access it without his knowledge or consent. He describes an incident in 2008 when his sports class had made it to a tournament and he told the wife he would take them all to McDonalds afterwards. On the day, he alleges they all ordered McDonalds and his card declined; he called the wife to ask her what had happened to the money and she said she had spent it on shopping. During cross-examination, the wife said that if his card declined, she wasn’t aware and that it was untrue that those funds were spent on her shopping and that she had said “that money is my money.”
In 2013, he asserts that he had placed $90 in his desk to pay the rent for his sports classes held at a local hall. On the day he was to pay rent, he alleges the money was no longer in his desk, and when he asked the wife where it was, she said “that money is my money.” He deposes that she did not give him the money to pay the rent, which ultimately hurt his relationship with the venue. The wife denied this during cross-examination.
The husband deposes that after this latter incident he convinced the wife to provide him with access to the joint account for emergencies, however it was only a debit card and thus could not be used for online purchases. The wife would also regularly review the bank statements and would berate him if there were expenses on there she did not agree with, such as coffee at an “expensive” coffee shop rather than the cheaper option. Broadly the husband asserts that arising from the manner in which the wife controlled the household finances there was an express understanding that the husband needed to ensure that all expenses were first cleared with the wife; even $5 for an item of stationery.
In cross-examination the husband readily agreed that in 2009 the wife provided him with a credit card; being a supplementary card to hers. Whilst he conceded that he had “free access” to the card, he was firm in his evidence that “every expenditure was queried.” He did not recall the wife ever saying that finances were tight, nor did he concede that any of his expenses were ever extravagant. He readily confirmed that:-
·The wife would withhold money from him.
·He did not agree that he could simply use the credit card, as every expense was queried, even if the wife felt he had spent too much on milk.
·His written evidence as set out above was correct and not an exaggeration.
The wife would not concede that she “controlled” the finances; rather that she “managed them.” She conceded that she controlled the husband’s access to funds up to 2010 but denied giving the husband an allowance for groceries and household expenses. She denied ever withdrawing money from the husband’s account without his knowledge, giving him a debit card rather than a credit card and refusing him $5 to buy an item of stationery and denied throwing a notebook at his head. The following exchange elucidated the wife’s position once more:
COUNSEL: You would provide my client with a cash allowance for weekly household and grocery expenses?
WIFE: Untrue.
COUNSEL: Well how much was he permitted to spend on weekly household and grocery expenses until 2010?
WIFE: None. There was none available.
COUNSEL: Pardon?
WIFE: So I did the weekly shop.
COUNSEL: … So let’s say he’s out and about with the kids, how does he pay for it, did you say between – up until 2010, from the birth of your first born until 2010. How does he do that?
WIFE: So I believe I gave him money for petrol at the time.
COUNSEL: And how did you give him that money?
WIFE: When he needed it. When he said he needed it.
COUNSEL: So you’d give him money for petrol, did you give him any other money?
WIFE: Uh, I don’t think there was a lot spare.
…
COUNSEL: When he’s by himself with the kids for 5 days a week while you’re at work, what does he do for spending money?
WIFE: Well, like I said you know I was barely making ends meet. I was earning like $40,000 - $48,000.
COUNSEL: You were earning $48,000 in 2003. That increased during the course of the relationship, did it not?
WIFE: Uh not really, not for the first five years.
COUNSEL: Well, in 2010 you were earning $94,600 were you not?
WIFE: Yes.
COUNSEL: That’s double isn’t it?
WIFE: Yes but that was one year.
COUNSEL: So, I’m just trying to understand your evidence about what my client was able to spend.
WIFE: And as I said, the mortgage repayments, the groceries, all those bills that came through, I didn’t have a lot of money to spare.
COUNSEL: What I’m trying to get at is, what did you give my client to spend – did you give my client any money to spend?
WIFE: So it wasn’t a weekly amount that was given. It was when he needed to buy petrol, I gave him the money to buy petrol.
…
COUNSEL: And so that meant my client was effectively reliant on you to give him funds to be able to spend money when he needed to right?
WIFE: Yeah.
The husband’s mother deposes that the husband often did not have any money and that he had a specific budget that he was not allowed to exceed; she as the paternal grandmother covered any extra expenses. She records that from 2015 onwards, the funds for the home and for the husband became increasingly stringent; for example, the husband’s phone was broken in 2015 and the wife allegedly did not permit it to be replaced – he was only contactable via the home phone for over five months until he was given the wife’s second hand phone. She was not cross-examined on this matter.
The wife conceded that she would raise with the husband purchases she was not happy with and would confront the husband about purchases: “If I didn’t know what they were, yes”. She further conceded accessing the husband’s bank account post-separation to ascertain his expenditure, even though she knew it was improper and could be a criminal offence to advance her case before this court.
The husband deposes that the wife became overly critical of him and if he had not undertaken a household task to her standard she would verbally abuse and humiliate him in front of the children. As a result he regularly became frightened and scared for the wife’s arrival home. When the wife came home she would assess all the tasks undertaken around the home that day and if they were not undertaken to the wife’s liking she would berate, insult and humiliate him in front of the children. The husband provides specific instances of this occurring.
The husband deposes that the wife would not irregularly yell at him in front of the children and call him names, including that he was “worthless”, “useless”, “lazy” and “stupid” which made him feel like a “servant with no autonomy, agency or respect.”[21] The effect of such conduct he asserts made him constantly fear the wife’s negative reaction to household chores which made it more difficult to complete them. He changed the schedules for the children and the cleaning of the home to ensure that everything was complete by the time the wife arrived home.
[21] Husband’s Affidavit paragraph 57.
After repeated questioning, the wife conceded in the course of her cross-examination that she had in fact called the husband such names:
COUNSEL: You’ve said to him that he’s useless haven’t you?
WIFE: In the heat of an argument, yes.
COUNSEL: Ok, ok – so you have said to him on occasions that he’s useless?
WIFE: In the heat of an argument.
COUNSEL: And in the heat of an argument you’ve called him lazy?
WIFE: True.
COUNSEL: In the heat of an argument you’ve called him worthless?
WIFE: True.
For a period of time the wife’s behaviour to the husband was mirrored by the children and the children began to speak to him in the same manner as the wife did. The husband told them that this was unacceptable. He recalls that the children would say “we better do [bathe, clean up, homework] or else daddy is going to get in trouble.”[22]
[22] Ibid, paragraph 83.
Further, he alleges that the wife threatened to divorce him on multiple occasions which made him feel insecure about his place in the home. On one occasion in 2015 he saw in full view on the kitchen bench divorce paperwork. When he questioned the wife about this, she said it was a joke to scare him and “keep me in my place.” He asserts that at least once a year he would find divorce paperwork in the home. When questioned about this in cross-examination, the wife stated that she didn’t threaten him, she “stated the fact of what [she] wanted.” She conceded that she had left divorce paperwork in a visible location but “not for him to see.”
WIFE: I had visited a divorce lawyer and I think it was in a place where he saw it, but it wasn’t for the express purpose of him seeing it.
COUNSEL: So you go and see a lawyer, you get divorce paperwork and you leave it in a place which isn’t hidden?
WIFE: It wasn’t hidden.
COUNSEL: So you leave it out in the open where you live in the same space?
WIFE: Yeah.
COUNSEL: You must’ve done that for my client to find it didn’t you?
WIFE: No – because I probably dropped it because I needed to do some housework.
The husband further asserts that the verbal and emotional abuse related again to finances; criticising him and calling him names if she felt that he had spent too much money on an item such as her birthday gift.
The husband deposes that he was of the belief that the wife did not respect his role as the carer of the children. The wife’s verbal abuse made his household tasks more difficult as he was constantly in fear that the wife would return from work and see a task not completed to his satisfaction and verbally abuse him, calling him names such as those I have found above.
The wife conceded:-
·that calling the husband these names would make him feel devalued;
·that at times she raised her voice to the husband in front of the children;
·that the husband told her that: “you are normalising the way you speak to me to the children”; and
·She hadn’t said that she valued the husband’s contributions as a father enough.
The wife otherwise denied the husband’s assertions.
The evidence of the husband’s mother is corroborative of the husband’s case; she states that after X was born, she saw “changes in [the husband’s] demeanour and observed he became anxious and tense, even in relation to basic tasks around the home.”[23] She states he was very anxious about how the housework was executed.
[23] Husband’s Mother’s Affidavit, paragraph 33.
The husband’s evidence is detailed and specific. It has the ring of truth. He was at all times responsive, firm and unwavering in his evidence save when it related to a specific date or time period. The wife’s own evidence as to the financial arrangements between the parties depict the husband’s finances as being tightly controlled. The wife appeared to have no understanding that it was appropriate that the husband have some money he could spend at will. In light of the wife accessing the husband’s bank accounts post-separation and continuing to do so right up to the final hearing, I accept that she did this during the course of the relationship and accessed funds as alleged by the husband.
The husband’s depiction of not being able to purchase McDonald’s for his sports class rang true. The wife has conceded being verbally abusive to the husband. As between the husband and the wife I accept the husband’s evidence that the wife was controlling of the household finances and that he felt he had no autonomy with respect to same. I reject the submission made by the wife that if the husband was aware that the wife was accessing his bank account he could have merely changed his password. I accept the husband’s evidence that the wife would demean and castigate the husband if tasks performed by him were not up to her standard. I accept that this all combined to make the husband feel undervalued and demeaned. I accept and find that the husband’s spending was very tightly controlled and the wife would ask him questions as to his spending. I accept the husband’s evidence that this made his non-financial contributions more onerous – it was a continuing course of conduct. I accept that this continuing course of conduct made the husband’s contributions discernibly more onerous. I give it slight weight.
The Non Superannuation Property Pool
I find that the financial contributions of the wife at the commencement of the relationship were superior to those of the husband, as is conceded by him. Whilst there was a disparity in the value of the each of the parties’ initial contributions, I reject the assertion that the monies received by the wife was the springboard for the subsequent acquisition of real property by them. It was the sale of the real property of the husband’s that was applied to the initial acquisition costs of the Suburb C property. The authorities are clear that a disparity in the initial contributions of the parties is an important consideration but such disparity may be diminished by the subsequent contributions of the parties during and post the relationship. The weight to be attached to initial contributions must be assessed against the rubric of all financial and non-financial contributions made by the parties throughout the relationship as a whole. Certainly the wife applied a larger sum of money at later date to the loan on the property and eventually discharged it. The direct financial contributions of the parties weighs in favour of the wife.
The husband concedes that the wife’s family accommodated the parties in waiting on full payment for the purchase of the Suburb C property and I find that this is ultimately a contribution made on the wife’s behalf. This weighs in the wife’s favour.
I am satisfied and find that the wife made superior financial contributions during the course of the relationship. Both parties worked hard in their respective roles and applied their best endeavours during the course of the relationship. The husband has made substantial direct and indirect non-financial contributions including indirect contributions to the receipt of the monies relating to the wife’s employment. I accept that each of the parties contributed in a homemaker and parental capacity to the best of their ability. I accept, in circumstances where the wife was engaged in full time paid employment, that the primary responsibility for these tasks fell to the husband. Thus the wife adopted the primary responsibility for the household income and the husband the primary responsibility as homemaker and parent.
The children have lived with the wife in the Suburb C property subsequent to the husband vacating the property in 2022. The husband has not paid child support. The husband concedes that contributions in this regard must favour the wife, particularly noting her care of the four children 12 nights a fortnight and her financial contributions and I find that this is so.
Of significance post-separation is the inheritance monies received by the husband. Whilst monies have been expended by the husband from such inheritance for his legal fees, thus reducing his contribution to the property of the parties, the wife too has expended monies in payment of legal fees. This direct financial contribution weighs heavily in favour of the husband.
Adopting a holistic approach I assess the parties’ contributions to the non-superannuation property pool of $3,356,836 as 46% to the wife and 54% to the husband.
By way of cross check in dollar terms this equates to:
46% to wife = $1,544,145
54% to husband = $1,812,691
The differential = $268,546
The Superannuation Property
There is no evidence as to the value of the parties’ superannuation interests at the commencement of the parties’ relationship. Both parties contributed in their respective spheres during the period of time they resided under the same roof. Having regard to the findings made in paragraph 187 above I am satisfied and find that the parties have made an equal contribution to the superannuation property pool – the husband’s non-financial contributions allowing the wife to accumulate more significant superannuation than him. Thus each party will receive superannuation entitlements to the value of $285,076.50.
ADJUSTMENT TO THE CONTRIBUTION FINDINGS
The wife submitted that, on the basis that the court made a contribution finding of 73% and 27% in the wife’s favour as sought on three pools of property, there ought to be an adjustment of a 7% in the wife’s favour and thus there should be an overall adjustment of 80% in favour of the wife. This adjustment is based on the entire assessment contributions for the pools combined. In the event the husband’s inheritance was not part of the property pool which means the husband will retain the remaining $322,013 in savings, the wife submits there should be an adjustment of eight percent to the wife.
The husband submits that in the event the court made a contribution finding of 55% in the wife’s favour as no adjustment was made in the husband’s favour arising from Kennon, then a 5% adjustment should be made to the husband for his future needs. When questioned as to whether the husband submits any adjustment to the contribution findings should be made to the entire found property of the parties or by way of separate findings against each pool of property, it was ultimately submitted that any adjustments to the contributions would be by way of separate findings against each pool of property. Thus, on the husband’s case:-
·The husband would receive 100% of the inheritance and there would still be an adjustment to him of 5%.
·If a three pool approach was adopted, then there would be no adjustment on the pool comprising the self-managed super fund, so the husband would receive 45%.
·The husband would receive an adjustment of between 0-5% to the balance of the property of the parties to provide for his future needs and the difficulty the husband would have in re-housing himself.
It is a matter of discretion as to whether an assessment of any adjustment to the contribution findings under section 79(4)(d) – (g) is dealt with by way of separate findings against each of the pools of superannuation property and non-superannuation property or whether any adjustments to be made to the contribution finding can be more conveniently made by looking at the superannuation and non-superannuation property pools together: see T & T (2006) FLC 93-263. I am satisfied that to look at this issue separately for each pool of property in this matter would be a hollow and artificial exercise.
Both parties are 54 years of age this year. There is no specific evidence that either of the parties are in ill health, other than that the wife deposes that she “believe[s]” that her health is impacted upon “from the daily stress of fulfilling my parental duties…and carrying out my full time role as a professional…”
Both parties are currently employed on a full-time basis. The wife is employed by KK Company as a professional and earns a wage of $4,646 per week before tax according to her Financial Statement; a gross annual income of $241,592. The husband works as a transport worker for LL Company with an income dependent on overtime hours worked but ranging from $967 to $1,155.23 per week. The husband also undertakes sports instructing on Saturdays, receiving a minimal wage of $82 per fortnight. It was unchallenged that 70 percent of his net income goes to rent of $620 per week. The husband’s last taxation return recorded gross income of approximately $67,000 plus superannuation. I accept and find that the husband earns substantially less income that the wife. This weighs in favour of the husband.
The wife concedes that she has the greater earning capacity. I accept that the wife’s income has steadily increased over the course of the relationship and post-separation and the husband’s role during the marriage and whilst the parties lived under the same roof permitted this increase in income earning capacity.
The husband is to receive non superannuation property to the value of $268,546 more than the wife arising from the contribution findings made above. Each of the parties will receive equal superannuation property.
The wife submitted that the husband has been able to “readily” receive the benefit of financial assistance from his mother in the sum of approximately $95,000 “without any delay” to cover his legal costs. It was further submitted that the husband must have had some benefactor to cover his legal costs of the criminal proceedings, the costs of which are in evidence – and there is no evidence to suggest that those monies have been repaid. It was submitted that the husband’s mother is thus a financial resource for him. I accept the husband’s submission that there is no suggestion that the husband has any control over his mother’s assets or the provision of financial assistance.
The wife is further at pains in her affidavit to depose, under the heading “[Mr Carew]’s Financial Resource: [Mr PP] and [Ms O]” that the husband’s mother and her partner are “in a strong financial position” and own various parcels of real estate which are particularised in full together with their residence in Region DD “which sits a [large] home, outdoor swimming pool, garage [and a] couple of [outbuildings]. This…property is owned by [Mr Carew]’s mother and [Mr PP] as tenants in common in equal shares.” The wife issued subpoena to the husband’s mother for all her bank statements held solely in her name or with anyone else for the period 21 September 2021 to date. Such evidence and approach exemplifies the wife’s approach to these proceedings. The relevance as to this evidence was not made clear. The wife’s submissions on this subject matter are not accepted.
It is not disputed that the wife has, and will continue to have, the primary care of the parties’ four children. It is not the subject of dispute that the husband is not paying child support and thus the wife is currently bearing the financial responsibility of the children. Whilst Ms Z is over the age of eighteen years, she is a university student living with the wife and there is no evidence that she contributes financially to the wife’s household in any way. Whilst I agree with the husband’s submissions that there is no evidence to suggest that the care of the children is impacting on the wife’s ability to earn in income, this fails to recognise the higher parenting contributions the wife will continue to make into the future, the youngest child turning 18 years in 2031, some 7 years away. The husband has no responsibility to support any other person save for the parties’ minor children. This weighs in favour of the wife.
Neither party is living with another person.
Having regard to the above and again adopting a holistic approach I am not satisfied that an adjustment to the contribution findings is warranted.
JUST AND EQUITABLE
Both parties agree that the wife be afforded the opportunity to retain the Suburb C property. Both parties seek in default of the wife paying the settlement sum to the husband so that she retain the Suburb C property that the property be sold and the husband receive from the sale the principal sum and interest thereon.
There is clear Full Court authority establishing a distinct guideline that, absent some special consideration, where there is to be the sale of non-superannuation property to satisfy a lump sum payment and the calculation of such lump sum arises from a finding as to the value of the property to be sold, then the amount to be paid to one or other of the parties should be expressed in percentage terms rather than by way of lump sum: Noetel and Quealey (2005) FLC 93-230 and Bell and Bell (1993) FLC 92-347 at 79,683.
Neither party made submissions on this issue. Both parties are legally represented and represented at the hearing by counsel well versed in this jurisdiction. To depart from the parties’ agreed position would be to not afford the parties procedural fairness. I am satisfied in those circumstances that a departure from the long-standing guideline is warranted.
The wife further seeks orders that, pending the husband transferring his interest in the Suburb C property to the wife or its sale: -
·the wife shall have the sole right to occupy the property and shall pay the electricity, gas and water usage;
·each party shall pay one half of the minimum monthly loan repayments, home building contents insurance, council rates and water rates except water usage and as and when they fall due;
·the parties hold their respective interest in the property upon trust pursuant to these orders; and
·neither party shall encumber the property without the consent in writing of the other party.
There is no evidence to ground such orders, nor were any submissions made with respect to same. In those circumstances I assume that such relief was not pressed.
No submissions were made by either party as to how the property of the parties was to be adjusted between them as between non superannuation and superannuation property.
Both parties are of the same age. The husband will be required to rehouse himself. One of the objects of the introduction of Part VIIIB of the Act was to provide a mechanism by which both parties might have superannuation to be used to maintain and improve living standards in retirement. In those circumstances it is just and equitable that the superannuation interests of the parties be equalised, and the non-superannuation interests be adjusted accordingly. Both parties seek that any superannuation splitting order be made from the parties’ self-managed superannuation fund. The parties’ interests in their respective accumulation funds are minimal.
Both parties will receive the benefit of an equal division of the joint savings.
No submissions were made by the parties as to the length of time the wife should be afforded to pay the husband the settlement sum, nor the manner in which the house should be sold in the event the wife does not comply with her obligations. I have afforded the wife three months to refinance, failing which the property will be sold by auction. This provides for transparency as to the sale. No issue was raised as to the wife’s application that she have sole occupation of the property pending its transfer or sale and I will so order.
The wife is entitled to receive 46% of non-superannuation property being $1,544,145. The husband will receive 54% of the non-superannuation property being $1,812,691. That is a differential of the non-superannuation property of $268,546.
The parties are to receive:
NON SUPERANNUATION PROPERTY
Wife
Husband
B Street, Suburb C NSW
$3,150,000
Controlled monies held by Etheringtons representing net sale proceeds of F Street, Suburb G QLD
$30,508
$30,508
E Bank Offset Account
$1,620
$1,620
Commonwealth Bank Account …79
$322,013
Commonwealth Bank Account …04
$814
Motor Vehicle 2
$10,000
Motor Vehicle 3
$16,000
NN Company Shares
$584
W Company Shares
$11,079
Household contents in wife’s possession
$2,500
Husband’s household contents
$2,000
Gross Non-Superannuation Property
$3,212,521
$366,725
LIABILITIES
E Bank …64
$222,410
Total Liabilities
$222,410
NET TOTAL NON-SUPERANNUATION PROPERTY
$2,990,111
$366,725
Thus the wife will be required to pay to the husband the sum of $1,445,966. I round this figure to the sum of $1,446,000.
Each party will receive superannuation to the value of $285,076.50. The parties’ superannuation property is currently held as follows:-
SUPERANNUATION
Wife
Husband
Super Fund 1
$1,000
Super Fund 2
$18,040
Husband’s SMSF:
$61,051
Wife’s SMSF:
$490,062
TOTAL SUPERANNUATION PROPERTY
$508,102
$62,051
Thus the husband will receive a splitting order in his favour in the sum of $223,025.50. I round this figure to $223,000.
Standing back and looking at the distribution of assets on an overall basis, I find that the adjustment of property as set out above achieves a just and equitable alteration of the property interests of the parties. Orders will be made accordingly.
Orders will be made to afford the parties the opportunity to make a costs application should they wish to do so.
I certify that the preceding two hundred and twenty (220) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 25 October 2024
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