Carswell & Tenson (No 4)
[2024] FedCFamC1F 848
•6 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Carswell & Tenson (No 4) [2024] FedCFamC1F 848
File number(s): SYC 5497 of 2018 Judgment of: CURRAN J Date of judgment: 6 December 2024 Catchwords: FAMILY LAW – PROPERTY – Final hearing – Property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) – Consideration of s 75(2) – Where husband has a far superior earning capacity– Where wife has primary care of the children – Wife’s earning capacity
FAMILY LAW – CHILD SUPPORT – Application for departure – Where the wife seeks a departure order for periodic and non-periodic child support – Finding of grounds for a departure order – Orders made for non-periodic child support departure but not for periodic departure order
FAMILY LAW – SPOUSAL MAINTENANCE – Consideration of the parties’ respective financial positions – Where some expenses of the wife were not qualified with evidence and were unreasonable –Wife will have significant financial resources available to her – The benefits of finality – Application for periodic or lump sum spousal maintenance refused
Legislation: Child Support (Assessment) Act 1989 (Cth) ss 116, 117, 123, 124, 125
Family Law Act 1975 (Cth) ss 72, 74, 75, 79, 81, 106A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.06, 8.15, 12.06
Cases cited: Astbury v Astbury (1978) 4 Fam LR 395 at 398
Best & Best (1993) FLC 92-418
Blatch v Archer (1774) 1 Cowp 63
Brown & Brown (2007) FLC 93-316
Carswell & Tenson [2022] FedCFamC1F 467
Chorn v Hopkins (2004) FLC 93-204
Clauson & Clauson (1995) FLC 92-595
Gyselman & Gyselman (1992) FLC 92-279
Hall v Hall (2016) 257 CLR 490
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Jones v Dunkel (1959) 101 CLR 298
Kannis & Kannis [2002] FamCA 1150
Kowaliw and Kowaliw (1981) FLC 91-092
Mitchell & Mitchell (1995) FLC 92–601; [1995] FamCA 32
Murray & Murray (2020) FLC 94-000
Omacini v Omacini (2005) FLC 93-218
Rice & Rice [2020] FamCAFC 174
RK & SK (2000) FLC 93-050
Rosati v Rosati (1998) FLC ¶92-804
Saberton & Saberton [2013] FamCAFC 89
Stanford v Stanford (2012) 247 CLR 108
Stoddard & Glover [2016] FamCA 674
Taguchi & Taguchi (1987) FLC 91-836
Townsend and Townsend (1995) FLC 92-569
Trask & Westlake (2015) FLC 93-662; [2015] FamCAFC
Trevi & Trevi (2018) FLC ¶93–858
Warwick & Cutler and Anor [2016] FamCA 934
Division: Division 1 First Instance Number of paragraphs: 376 Date of hearing: 4-7 June 2024 Place: Sydney Counsel for the Applicant: Mr Beckerling Solicitor for the Applicant: Kerr Fels Counsel for the Respondent: Ms Lawson Solicitor for the Respondent: Hall & Wilcox ORDERS
SYC 5497 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CARSWELL
Applicant
AND: MR TENSON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
6 DECEMBER 2024
THE COURT ORDERS THAT:
Property Orders
1.Within 90 days from the date of these Orders (“Due Date”):
(a)The respondent husband (“husband”) pay the applicant wife (“wife”) the sum of $2,860,731.07 (“the Payment”); and
(b)Contemporaneously with the Payment, the wife will do all such acts and things and sign all documents as may be required to transfer to the husband all of her right, title and interest in the property situated at CC Street, Suburb C in the State of New South Wales being the whole of the land described in Folio Identifier … (“the Suburb C Property”) (“the Transfer”)
(c)Contemporaneously with both the Payment and the Transfer, the husband do all things and sign all documents necessary to refinance all encumbrances secured over the Suburb C Property into his sole name such that the wife is discharged from any liability concerning the same.
Orders in default
2.Failing the Payment by the husband to the wife by the Due Date, the parties forthwith do all acts and things and sign all necessary documents to cause the sale of the Suburb C Property as soon as reasonably practicable.
3.Unless otherwise agreed in writing between the parties, the sale of the Suburb C property is to be carried out in the following manner:
(a)Real Estate Agent Selection:
(i)Within 7 days of the Due Date, the wife shall nominate in writing to the husband the names of 3 qualified real estate agents (“real estate agents”) who have consented to act;
(ii)If the wife does not nominate 3 real estate agents within 7 days of the Due Date, the husband may nominate a real estate agent at his sole discretion and notify the wife within a further 7 days, and that will be the agent for the purposes of the sale;
(iii)If the wife does nominate 3 real estate agents, then within a further 7 days after the date of her nomination, the husband shall select the preferred agent of those nominated by the wife and then that agent will be the agent for the purposes of the sale;
(iv)If the husband does not select 1 agent pursuant to the preceding subparagraph, then the wife may choose one of the 3 real estate agents at her sole discretion and that will be the real estate agent for the purposes of the sale;
(v)Within 14 days of the selection of the real estate agent, the parties shall sign all authorities and execute all documents necessary to instruct the real estate agent to act on the sale of the Suburb C Property.
(vi)The parties shall be responsible for giving joint instructions to the real estate agent acting on the sale of the Suburb C Property; and
(vii)The costs of the real estate agent shall be borne equally between the parties.
(b)Conveyancing solicitors:
(i)Within 7 days of the Due Date, the wife shall nominate in writing to the husband the names of 3 qualified conveyancing solicitors or settlement agents (“conveyancing solicitor”), who have consented to act;
(ii)If the wife does not nominate 3 conveyancing solicitor within 7 days of the Due Date, the husband may nominate a conveyancing solicitor at his sole discretion and notify the wife within a further 7 days, and that will be the conveyancing solicitor for the purposes of the sale;
(iii)If the wife does nominate 3 conveyancing solicitors, then within a further 7 days the husband shall select the preferred agent of those nominated by the wife, and then that conveyancing solicitor will be the conveyancing solicitor for the purposes of the sale;
(iv)If the husband does not select 1 conveyancing solicitor within 7 days, the wife choose one of the 3 nominated conveyancing solicitors at her sole discretion and that will be the conveyancing solicitor for the purposes of the sale;
(v)Within 14 days of appointment of the real estate agent the parties shall sign all authorities and execute all documents necessary to instruct the conveyancing solicitor to act on the sale of the Suburb C Property; and
(vi)The costs of the conveyancing solicitor shall be borne equally between the parties.
(c)Auction
(i)The Suburb C Property be placed on the market for sale by auction within 28 days of the date of the default of the Payment;
(ii)The husband vacate the Suburb C Property no less than 7 days prior to the date of the auction and ensure that same has been professionally cleaned, at the husband’s cost;
(iii)Such an auction take place within 42 days from the date of placing the Suburb C Property on the market for sale by public auction, or as soon as practicable thereafter;
(iv)A reserve price shall be fixed by written agreement between the parties within 7 days of the property being listed for auction;
A.Failing agreement as to a reserve price, within 7 days of the Suburb C property being listed for auction, the parties agree a valuer, or failing agreement the Single Expert Witness in these proceedings, AL Valuers, be instructed as the Valuer;
B.The Valuer shall set the reserve price; and
C.The parties shall share the costs of the Valuer equally.
(v)In the event that the Suburb C Property fails to be sold at the auction referred to above, the property shall be resubmitted for auction at a reserve price as recommended by the Valuer and shall be resubmitted for auction at a time as agreed and in the absence of agreement as determined by the real estate agent.
4.Pending settlement of the Suburb C Property pursuant to the preceding Order:
(a)The husband pay each instalment on the home loan and each encumbrance secured against the Suburb C Property, as it falls due;
(b)The husband meet the costs of the council rates and charges, insurance premiums and all utilities of the Suburb C Property as and when they fall due;
(c)The husband do all things reasonably requested by the Agent to cooperate and assist in marketing the Suburb C Property, including to ensure the property is clean and permit home opens and inspections by interested parties if same occur prior to him vacating same;
(d)The husband indemnify the wife and keep her indemnified in respect of each of the above obligations.
5.Pending settlement of the sale:
(a)The parties be restrained from renting, letting or tenanting the Suburb C Property in any way, without the prior written consent of the other party; and
(b)The parties be restrained from taking any step to further encumber the Suburb C Property, without the prior written consent of the other party; and
(c)The parties be restrained from taking any step to cause a reduction to the purchase price of the Suburb C Property, or to engage with any prospective purchasers of the property in any way which the Agent considers may cause a reduction in the purchase price; and
(d)In the event a prospective purchaser makes an offer to purchase the Suburb C Property prior to the proposed date for auction, the parties may agree on a price and to sell the property to such a purchaser in writing. In the event that the parties are unable to agree on a price then the Suburb C Property shall proceed to auction; and
(e)The parties or either of them may lawfully bid at the auction.
6.Upon the settlement of the sale of the Suburb C Property, the proceeds of sale be distributed as follows:
(a)In repayment of the real estate agent’s costs, the conveyancing solicitor’s and the valuer’s costs;
(b)In repayment of the encumbrances secured against the Suburb C Property;
(c)Payment to the wife of a cash sum to effect a 65% division of the determined property pool to the wife, less the sum of $2,612.
(d)The balance be paid to the husband.
Payment of outstanding AM School liability
7.The husband forthwith pay to AM School the sum of $25,790.50, being 50% of the outstanding unpaid school fees, together with 50% of any interest accruing or owed on that sum, and will indemnify the wife in respect of that sum.
8.The wife forthwith pay to AM School the sum of $25,790.50, being 50% of the outstanding unpaid school fees, together with 50% of any interest accruing or owed on that sum and will indemnify the husband in respect of that sum.
Existing Property
9.By consent, within 14 days the husband make the above artwork available for collection by the wife or an agent on her behalf:
[List of artworks omitted]
10.Other than as provided for in these orders, the parties be declared to have the sole right, title and interest in:
(a)Any chattels, goods, furnishings, bank accounts, artworks and other property which are at the date hereof in their possession respectively; and
(b)Any monies, shares, or superannuation entitlements which stand in their sole name respectively at the date hereof.
Other Orders Sought
11.If either party refuses or neglects to execute any deed or instrument necessary to give effect to the Orders set out in Order 2 above, the Registrar of the Court be appointed pursuant to s 106A of the Family Law Act 1975 to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
Child support departure orders
12.The application for a periodic departure order is dismissed.
13.By consent, pursuant to s 118 and s 124 of the Child Support (Assessment) Act 1989 (Cth), there be a departure from the administrative assessment of child support payable by the husband for Y, X, and Z (“the children”), such that the husband pay annual tuition fees and technology levies imposed by AM School from Term 3 2024 and for such time as X and/or Z attend that school (with such amounts not to be credited by the husband against any administrative assessment requiring the payment of periodic child support by the husband to the wife that may issue from time to time by the Child Support Agency in accordance with the Child Support (Assessment) Act 1989).
14.Pursuant to sections 118 and 124 of the Child Support (Assessment) Act 1989 (Cth), there be a departure from the administrative assessment of child support payable by the husband for the children, such that the husband pay the following:
(a)All fees and costs of AM School compulsory curricular activities for each of X and Z as they appear on the school/s invoice;
(b)Costs of the AM School uniform for each of X and Z being:
(i)In each year of school, the husband pay for one Winter Uniform and one Summer Uniform for each of X and Z;
(ii)In each year of school, the husband pay for all of the compulsory items identified in the AM School Sports Uniform List for each of X and Z;
(c)The cost of the children’s school textbooks and equipment as identified in:
(i)The AM School Book List and Stationary List or equivalent for each of X and Z in each year of their schooling; and
(ii)the Book List and Stationary List or equivalent for Y in each year of his schooling;
(d)All additional or gap medical expenses for the children for medical treatments, dental and orthodontic work (as recommended by their treating Dentist or Orthodontist), psychology, psychiatry, occupational therapy, physiotherapy, and hospital expenses;
15.In relation to the expenses describe at Orders 13 and 14(a) – (d) above, the husband pay the costs directly to the service provider within the service providers terms.
16.Pursuant to s 125 of the Child Support (Assessment) Act 1989 (Cth), the husband shall not seek to reduce his periodic child support under the current administrative assessment, or obtain credit as a result of any payments he makes to try to reduce his current child support assessment as set out in these Orders.
17.The parties forthwith do all acts and things necessary to cause a copy of this order to be lodged with the Child Support Registrar.
Spousal maintenance
18.Order 3 of the orders of Justice Smith dated 6 July 2022 be discharged forthwith upon the husband fully discharging his obligation to make the payment of the settlement sum payment at Order 1(a) or 6(c).
19.The application for spousal maintenance is otherwise dismissed.
Costs
20.If any party seeks costs, an application in the appropriate form supported by affidavit evidence is to be filed and served within 28 days of the date of these orders.
21.If no application for costs is filed within the time specified, there shall be no order as to costs.
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 the pseudonym Carswell & Tenson has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CURRAN J:
INTRODUCTION
After a nine-year marriage, the applicant wife, Ms Carswell, and the respondent husband, Mr Tenson, are in dispute in respect of the division of their property interests, whether spouse maintenance should continue to be paid to the wife, and child support for their children.
To the parties’ credit, they reached agreement about parenting issues. They also agreed that a departure order should be made for the husband to pay the AM School tuition and technology fees from Term 3 2024 with such amounts not being credited against the current administrative assessment.
The wife seeks a departure from the weekly periodic administrative assessment, and further non-periodic child support departure orders for the husband to meet additional expenses including uniforms, curricular costs and medical expenses. She also sought a departure order in respect of an outstanding school fee balance from 2023.
Orders will be made for a division of the property pool of 65% to the wife and 35% to the husband, and for non-periodic child support. The application of the wife for periodic child support departure and spousal maintenance is dismissed. My reasons follow.
BACKGROUND
There are three children of the marriage, namely:
(a)Y, aged 14 at the time of trial;
(b)X, aged 12 at the time of trial; and
(c)Z, aged 10 at the time of trial.
Pursuant to orders made by consent on the first day of the trial, the children live primarily with the wife and spend time with the husband each alternate week. Y spends time with the husband each alternate week from after school on Thursday until the commencement of school on Monday, and X and Z each alternate week from after school on Friday until the commencement of school on Tuesday. The children spend equal time with their parents during school holidays.
The parties commenced cohabitation in 2007 at the husband’s apartment at AN Street, Suburb AO (“the Suburb AO apartment”). In 2008, the parties purchased AP Street, Suburb AQ for approximately $850,000 (“the Suburb AQ property”). In 2008 the Suburb AO property was sold for approximately $390,000.
The parties married in 2008.
In 2010, the parties sold the Suburb AQ property for approximately $1,250,000.
In 2010, the parties purchased AR Street, Suburb AS (“the Suburb AS property”) for $1,775,000. In 2014, the parties purchased a property at CC Street, Suburb C (“the Suburb C property”) for $3,100,000 and shortly thereafter, sold the Suburb AS property for $2,000,000.
Following the purchase of the Suburb C property, they lived in a rental property located in Suburb AT to allow the Suburb C property to be tenanted and renovated, until they moved to Suburb C in 2017.
The wife contends that the parties separated on a final basis on 26 August 2017, the husband says it was on or around 1 September 2017. Nothing turns on the differences between the parties’ asserted date of separation. The parties divorced in 2019.
The husband has re-partnered and lives with his de-facto partner Ms E. They have a child, W, who was born in 2021.
Proceedings were commenced on 29 August 2018 by way of the wife filing an Initiating Application in the (then) Family Court of Australia.
ORDERS SOUGHT BY THE PARTIES
Applicant wife
The wife’s orders sought are included below at Schedule 1.
The wife sought orders in accordance with her Amended Initiating Application filed 22 April 2024 seeking a division of property of 70/30 in her favour. She contended that the parties’ contributions were equal and sought an adjustment of 20 per cent in her favour on the account of the s 75(2) factors. She sought payment of the settlement sum within 35 days of the date of the orders and that the husband retain the Suburb C property. Failing payment within 35 days of the orders, the wife sought orders for the sale of the property.
The wife further sought a child support departure order requiring the husband to pay the fixed sum of $750 per week by way of periodic child support, with such amount to reduce pro rata as each of the children turn 18. Additionally, she sought an order for the payment of tuition and incidental curricular costs and payment of health-related costs of the children.
The wife sought an order for the husband to pay all arrears of AM School fees and provide an indemnity.
The wife sought an order for spousal maintenance from the husband of $150,000 lump sum, or in the alternative, $1,000 per week for three years.
Respondent husband
The precise orders sought by the husband remained unclear until the final day of the trial. At the commencement of the trial, through his counsel, he relied on a letter containing an offer of settlement (Exhibit 9) as being the substance of his application. His proposed orders were finally provided by email at 1.54pm on 7 June 2024 and are included at Schedule 2 below.
He sought orders for the payment of the settlement sum of $1,400,000 to the wife and that he retain the Suburb C property and discharge all encumbrances, with sale provisions in default and that each party otherwise retains all property and liabilities in their respective possession. He sought the dismissal of the spousal maintenance order and dismissal of the child support departure applications, other than the (agreed) payment of school tuition and technology fees.
ISSUES FOR DETERMINATION
Property
The parties agree that their contributions should be assessed as equal. The outstanding disputes were in respect of identification and value of their assets and liabilities, and what adjustment of the property pool in favour of the wife should be made pursuant to s 75(2) of the Act. The husband sought a 5 per cent adjustment in favour of the wife, whereas the wife sought a 20 per cent adjustment.
Child support departure order for non-periodic and periodic payments
The parties were not in agreement regarding additional non-periodic orders sought or in respect of whether there should be an order for departure from the periodic child support assessment.
Spousal maintenance
The wife sought and the husband opposed an order for spousal maintenance.
LEGAL PRINCIPLES
Property adjustment
The parties’ competing property applications are to be determined in accordance with the provisions of Part VIII of the Family Law Act 1975 (Cth) (“the Act”). The High Court considered the approach to be adopted in the determination of proceedings pursuant to s 79 of the Act in the decision of Stanford v Stanford (2012) 247 CLR 108 (“Stanford”). Section 79(2) of the Act provides that a court should not make an order for property settlement unless it is satisfied that it is just and equitable to do so. As the parties competing property applications demonstrate, their financial interests remain entangled and contentious, making an order altering their interests a necessity.
The preferred approach to be adopted in a financial adjustment case pursuant to s 79 of the Act is well established by authority applying the following the four-step process (see Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93‑143).
It is necessary to first identify the legal and equitable interests of the husband and the wife, consider what (if any) liabilities each of them has, and consider any superannuation and financial resources in the names of the husband, the wife, or either of them, at the date of the hearing.
It is necessary to then assess the contributions of the parties and determine a contributions‑based entitlement having regard to relevant matters set out in s 79(4) of the Act. The assessment of contributions is usually approached in a holistic fashion. In this case, contributions were agreed to be equal.
The third step is to identify and consider relevant matters under s 75(2) of the Act to determine whether, and the extent of, any adjustment as is necessary to the contributions-based entitlement.
The final step requires the Court to consider the effect of the findings and determine whether in all of the circumstances the orders are just and equitable.
THE PROPERTY POOL
The parties’ contended assets and liabilities were captured in a joint balance sheet as set out below:
# Ownership Description Wife’s Value at Trial (4 June) Husband’s Value at Trial (4 June) ASSETS 1 Joint CC Street, Suburb C (Folio Identifier …) $7,350,000.00 $7,350,000.00 2 Joint Household contents at CC Street, Suburb C $17,500.00 $5,000.00 3 Joint Artwork & Photography located at GG Business and Suburb C property $76,900.00 $76,900.00 4 Joint Artwork at J Street property $22,500.00 $22,500.00 5 Applicant ANZ Account #...13 $6,075.00 $6,075.00 6 Applicant ANZ Account #...39 $1.00 $1.00 7 Applicant ANZ Account #...97 $2.00 $2.00 8 Applicant ANZ Account #...58 $30.00 $30.00 9 Applicant AV Bank Savings #...67 $1,349.00 $1,349.00 10 Applicant Bond held for Wife's rental accommodation at 1 J Street, Suburb C $6,380.00 $6,380.00 11 Applicant 13,500 H Company shares $594.00 $594.00 12 Applicant 16,500 TT Company shares $- $- 13 Applicant EE Finance account #...23 $- $- 14 Applicant Household contents at Wife's Rental – 1 J Street Nominal $20,000.00 15 Applicant Trust Account of Kerr Fels (holding Funds for Trial and Trial Preparation Work) $80,990.00 $80,990.00 16 Applicant Motor Vehicle 3 $- $ - 17 Respondent NAB Account #...42 $(10,241.00) 18 Respondent NAB Account #...89 $47,963.00 $47,963.00 18B Respondent Trust Account of Hall Wilcox (holding funds for Trial) $70,000.00 $70,000.00 19 Respondent ANZ Account #...28 $23.00 $23.00 20 Respondent 5,750 TT Company shares $- $- 21 Respondent Shares in LL Pty Ltd (GG Business) & Husband's share of (rent) bank guarantee $340,895.00 $186,875.00 22 Respondent Interest in bank guarantee at GG Business $- $(284,997.00) 23 Respondent Aged Debtor amount owing $418,301.00 - 24 Respondent Unbilled WIP $72,914.00 $6,010.00 Assets subtotal $8,512,417.00 $7,585,454.00 LIABILITIES 25 Joint NAB facility home loan BSB … ACC …33 $(1,394,285.00) $(1,394,285.00) 26 Joint NAB private portfolio #...78 comprising: $(2,476,720.00) $(2,476,720.00) 27 NAB sub account #...05 $- 28 NAB sub account #...02 $- 29 NAB sub account #...25 $- 30 NAB sub account #...24 $- 31 Joint Loan to Ms B ($31,000 purported) Nil $(31,000.00) 32 Joint AM School liability $(51,581.00) $(51,581.00) 33 Applicant NAB credit card #...29 $(919.00) $(919.00) 34 Applicant Loan owing to Mr F & Ms D (primarily legal fees and post-separation advances) $(226,349.00) $- 35 Applicant Loan owing to Mr F & Ms D (for motor vehicle repairs - not incorporated in above) $(4,000.00) - 36 Applicant Loan owing to Ms L & Mr M re motor vehicle repairs $(2,355.00) $(2,355.00) 37 Applicant HECS debt $(11,299.00) - 38 38B Respondent Income Tax Account - ATO $- $(301,722.00) 38C Respondent Integrated Client Account - ATO $- $(80,000.00) 39 Respondent ANZ credit card #...84 $(13,524.00) 40 Respondent NAB credit card #...20 $(12,429.00) 41 Respondent NAB credit card #...98 $(3,969.00) 42 Respondent NAB credit card #...74 $(1,807.00) 43 Respondent Loan owing to Ms E (purported $250,000) Nil $(250,000.00) Liabilities subtotal $(4,167,508.00) $(4,620,311.00) SUPERANNUATION Member Name of Fund Applicant’s Value Respondent’s Value 44 Applicant T Super Fund $100,245.00 $100,245.00 45 Respondent QQ Super Fund $63,748.00 $63,748.00 Superannuation subtotal $163,993.00 $163,993.00 ADDBACKS Ownership Description Applicant’s Value Respondent’s Value 46 Applicant Wife's Paid Legal Fees - Former Representatives (to April 2021) $320,599.00 $ 320,599.00 47 Applicant Wife's Paid Legal Fees - Current Representatives (from April 2021) $- $- 48 Applicant Partial Property Settlement Order $216,000.00 $250,000.00 49 Respondent Husband's Paid Legal Fees (Wife estimate) $304,840.00 $242,325.00 50 Respondent Proceeds of sale of Motor Vehicle 2 applied to the purchase of vehicles registered in the name of the Husband's Wife, Ms E (15000) and proceeds of sale of a motor vehicle applied to the purchase of a vehicle registered in the name of the Ms E (10000) $25,000.00 - 51 Applicant 1/2 share of AL Valuers costs for 2019 and 2021 valuations which were paid by the Respondent $- $2,612.00 52 Applicant 1/2 share of mediator and venue hire for mediation in December 2019 which was paid by Respondent $- $3,150.00 53 Applicant Bond for paid by Respondent for 2 J Street $- $5,180.00 54 Applicant Money transferred to Applicant's Parents $- $184,596.00 Addbacks subtotal $866,439.00 $ 1,008,462.00 TOTAL (assets – liabilities + superannuation + addbacks) $5,375,341.00 $4,137,598.00 FINANCIAL RESOURCES Ownership Description Applicant’s Value Respondent’s Value 55 Applicant Frequent Flyer points 0 - 56 Applicant Beneficiary to the Carswell Family Trust Nil - 57 Respondent Aged debtor amount owing $- $174,111.00 58 Respondent Loan to LL Pty Ltd $- $- 59 Respondent Frequent Flyer points - Financial resources subtotal $- $174,111.00 TOTAL (assets – liabilities + superannuation + financial resources + other) $5,375,341.00 $4,311,709.00 Treatment of assets and liabilities in dispute
As is apparent from the balance sheet above, the areas of dispute identified in respect of the assets and liabilities are as follows:
(a)Item 2: what is the value of the household contents at the Suburb C property?
(b)Item 14: what is the value of the household contents at the wife’s rental 1 J Street?
(c)Item 16: what is the value of the wife’s Motor Vehicle 3?
(d)Item 17: whether the husband’s NAB Account #...42 should be included as a liability?
(e)Item 21: how should the husband’s Shares in LL Pty Ltd (GG Business) & the husband’s share of (rent) bank guarantee be treated?
(f)Item 22: what is the value of the husband’s interest in bank guarantee at GG Business and should it be included in the pool?
(g)Item 23: should the husband’s aged debtors be included as an asset or a financial resource, and in what amount?
(h)Item 24: what is the quantum of the husband’s unbilled WIP?
(i)Item 31: should the joint loan to Ms B be included as a liability, and if so, what value?
(j)Item 32: how should the AM School liability be treated?
(k)Item 34: should the wife’s loan to her parents be included as a liability, and if so, in what amount?
(l)Item 35: should the funds the wife alleges she owes to her parents be included as a liability, and if so, what value?
(m)Item 37: should the wife’s HECS debt be included as a liability, and if so, what value?
(n)Item 38B: should the husband’s Income Tax Account be included as a liability?
(o)Item 38C: should the husband’s Integrated Client Account with the ATO be included as a liability, and if so, what value?
(p)Items 39 to 42: should the husband’s credit cards be included as a liability?
(i)ANZ Credit Card #...84
(ii)NAB Credit Card #...20
(iii)NAB Credit Card #...98
(iv)NAB Credit Card #...74
(q)Item 43: how should the husband’s asserted loan to Ms E be treated?
(a) Item 2: Household contents at the CC Street, Suburb C property
This is recorded as a joint asset, with the wife asserting the value as $17,500, and the husband asserting the value as $5,000. Although the value was initially in dispute, counsel for the wife stated that line item 2 contending a value of $17,500 was not pressed during the course of the husband’s cross examination.
In submissions, counsel for the wife stated that, in the absence of valuation evidence, the court is guided by the decision of RK & SK (2000) FLC 93-050 (“RK & SK”), and that the wife would “respectfully acquiesce in the values your Honour ascribed to those things in light of that authority”. In this authority, Finn J stated at [32]:
… the onus lies on the party who is concerned about the disposition of chattels, or at least concerned to see that an adjustment be made for the value of the chattels in the overall property settlement, to put evidence before the Court of the value of the chattels in order that the Court may satisfy itself that it is not devoting its scarce resources to the resolution of disputes about assets of no or relatively minimal value. There was apparently no such evidence in this case.
There is no valuation evidence about the value of the chattel and contents value. In these circumstances, the husband’s concession that the value of the household contents at the Suburb C property is $5,000 is the best evidence, and I include that sum in the balance sheet.
(b) Item 14: Household contents at wife’s rental 1 J Street
The wife asserts that the value of these household contents is nominal, and the husband asserts a value of $20,000.
The husband said that the wife removed majority of the contents from the Suburb C property when she left. In his Case Outline, he states that the wife insured the contents of the 1 J Street property for $61,500 in 2021/22. Although I was not taken to the insurance value it is difficult to see how this could have influenced the question at hand.
There is no valuation evidence as to these chattel and contents. For the reasons set out above citing the authority of RK & SK, I find that the value of the wife’s household contents is not known. I exclude it from the balance sheet.
(c) Item 16: Motor Vehicle 3
Motor Vehicle 3 was written off. In the balance sheet there is no value asserted by either party for Motor Vehicle 3. The husband says that the wife received an insurance payment for this car after it was written off.
In the wife’s financial statement at Part M, she disclosed that the vehicle was written off and an insurance claim was made. She deposes that the sum received was $16,017 and it was disposed of on day-to-day costs and expenses. Her evidence was not challenged. It is uncontentious that the vehicle is no longer in the possession of either of the parties. Accordingly, I will exclude it from the balance sheet.
(d) Item 17: The husband’s NAB Account #...42
The husband includes a liability on his NAB Account #...42 in the sum of $10,241. This item was not included in his sworn financial statement. There is no evidence in his affidavit about this alleged liability. There was no oral evidence given in respect of the alleged liability, nor was he cross examined about it.
It is noted that the value is agreed but the inclusion on the balance sheet is an issue in dispute. No party made any submissions about the treatment of this alleged liability. There was no evidence as to when it was incurred, or the use made of the funds. There is no evidence to establish that it should be included in the balance sheet, and I exclude it.
(e) Item 21: The husband’s Shares in LL Pty Ltd (GG Business) & the husband’s share of (rent) bank guarantee
In submissions, counsel for the husband accepted the figure contended for by the wife of $340,895 for the shares and bank guarantee at line 21. Accordingly, the agreed figure is included in the balance sheet.
(f) Item 22: The husband’s interest in bank guarantee at GG Business
The husband contended he had a liability of $284,997 arising from his obligation secured by the bank guarantee although it was recorded in his financial statement as $285,646. Both the value and its inclusion as a debt remained in dispute.
The husband stated in oral evidence:
My indemnity to Westpac is in relation to a share of the shares in the overall company, but the 2.5 per cent is an amount that Westpac requires me to indemnify them over and above the proportionate share of the loan because – anyway, you can ask if you wish.
He states that non-payment of the monthly fee could crystalise the indemnity and may result in a call to be made on the fit-out loan, that there have been defaults in the past and there had been a renegotiation of lease terms at some earlier time.
The husband said there are a number of options remaining on the lease of the premises occupied by GG Business and he expected those options would be taken up and the lease would be renewed until it expired in 2050. GG Business has been operating since 2009. The contingent liability arising from default in rent or fit-out make good expenses seems, on the evidence is highly unlikely to become a liability.
In those circumstances, the contingent liability will not be included.
(g) Item 23: The husband’s aged debtors
The inclusion of the husband’s aged debtors as an asset or a financial resource is an issue in dispute. The value of the aged debtors is also in dispute.
The wife contends the amount owing in the husband’s aged debtors report of 5 June 2024 is $418,301. The husband contends the value should be $174,111, being current debts and those which are up to 60 days owing. He also contends that the aged debtors should be considered a financial resource rather than an asset. According to the husband, invoices older than 90 days are not recoverable. The wife did not agree.
The husband accepted that the debtors accrued on invoices issued by him pursuant to various costs agreements, and that those agreements are with businesses rather than directly with clients. He gave evidence that “some of the [businesses] no longer exist”, although did not identify which businesses. It was conceded by the husband that the costs agreements with the businesses set out the terms of payment, however, provided no evidence as to the terms.
There was no evidence of any default by any debtor, and no evidence that the husband has demanded or been required to pursue payment of any of the amounts outstanding.
The husband’s position was that aged debtors are not property. The aged debtors have not been taxed and will not be taxed until income is received. Counsel for the husband contended that it does not represent a figure after tax, nor does it represent all of the expenses incurred to earn that amount. It was further submitted that the Court could not be confident that the aged debtors were not “a bad debt that ultimately has to be written off”, although he was prepared to include the sum of the aged debtors up to 60 days as a financial resource. It was submitted that as it is not recovered it cannot be property and that, at best, the Court could consider it as a s 75(2) factor in assessing the husband’s future needs.
I do not accept the contention of the husband that these debts may need to be written off and may not be recoverable. I have no evidence of invoices or the terms of costs agreements. There is no evidence to support the contention that they are unlikely to be paid or cannot be recovered.
According to the plurality in Hall v Hall (2016) 257 CLR 490 at [55], whether a source of funds is a financial resource or not “turns in most cases on a factual inquiry.” If the husband were to call on his aged debtors, it is reasonable to expect that the funds would be paid by the businesses in accordance with their obligations under the signed costs agreements and pursuant to their professional obligations. The Full Court in Mitchell & Mitchell (1995) FLC 92–601; [1995] FamCA 32 said that unpaid fees are debts owing to a party and would ordinarily be understood to be property, especially where there is no apparent question about recoverability.
The husband contended that there is some doubt as to whether they are recoverable. The aged debtors report is marked as Exhibit 23. On reviewing the report, the quantum of the outstanding debts from 2023 and 2024 are $311,287. The aged debtors that have been outstanding prior to 2023 total $107,015. These debts, although incurred earlier in time, are not statute barred and the husband has done nothing to enforce them. There is no basis upon which I am able to find or infer that they are not recoverable or even that there is doubt that they are recoverable.
In these circumstances the aged debtors will be included as the husband’s property at a value of $418,301.
(h) Item 24: The husband’s Unbilled WIP and how should it be treated?
The value of the husband’s unpaid work in progress was in dispute during the final hearing. However, in submissions, counsel for the wife accepted the husband’s proposal that it be included as property at $6,010.
(i) Item 31: The joint loan to Ms B
The husband says he owes his mother $31,000. The wife asserts that this should not be included in the pool.
The husband says he still owes $31,000 to his mother, being the balance of a $75,000 loan used for the purchase of the Suburb AQ property in 2008. The wife deposes that this loan was of an amount between $15,000 and $30,000 and was repaid in full. Her evidence is that by the time of separation, the husband had told her that they had no amounts outstanding to his parents. This evidence was not challenged.
The husband gave oral evidence that his mother did not want repayment at a time when she had mental capacity, because it would “upset her pension” entitlement. He states that she wanted payment deferred until a time she needed the money. His evidence was that his mother no longer has capacity, and that an order was recently made at NCAT appointing two guardians.
The husband’s mother was not called as a witness given her incapacity. The mother’s guardians gave no evidence as to the existence of a debt or any acknowledgement of debt. There was no evidence as to the terms of the alleged debt including in what circumstances the money was to become repayable. Additionally, the husband would arguably have a defence that the debt may be statute barred by reason of any relevant limitation period given it was a debt allegedly incurred in 2008.
The wife disputes the existence of a debt as she said that 16 years have elapsed since the purchase of the Suburb AQ property, and that, in that time, the parties renovated the Suburb C property at a cost of $1.8 million. In addition, the husband over the past 16 years has been earning significant income, including an approximate taxable income of $1,447,713 in the past 11 months as referred to below. It was submitted that in those circumstances, if the husband considered it to be a loan, it would have been paid.
Given the almost two decades since the loan was allegedly incurred, I am satisfied that if it was to be repaid, there would have been a call on the loan or some evidence of the debt from the husband’s mother when she had capacity, or evidence from her guardians as to the existence of the debt. I am not satisfied the debt, if it exists, will ever be repayable and I exclude this amount from the balance sheet.
(j) Item 32: AM School liability
The husband consents to a child support departure order that he continue to meet all of the school fees from Term 3 2024. It is agreed that there is a AM School liability of $51,581 for outstanding school fees. The parties are prima facie jointly and severally liable for the amount.
Despite its inclusion in the joint balance sheet, the wife sought this amount be dealt with by a non-periodic child support departure order for the husband “to meet 100 per cent of any arrears” outstanding to AM School.
The husband approaches these proceedings on the basis that each is liable for half the amount due as a debt, as he contended that this is consistent with the order of the Administrative Appeals Tribunal (“AAT”) following the wife’s application for reassessment of child support assessment.
The dispute is therefore limited to the question as to the liability for half of the outstanding sum owed to AM School of $25,790.50 and whether it should be paid by the wife or by the husband.
The parties agreed for Z and X to be enrolled in AM School at the time of their birth. The wife says that it was important to the husband as his sister had attended the school. After separation the parties negotiated an interim financial agreement that the husband was to pay the children’s private school fees. From the date of the agreement until April 2022 the husband paid the AM School fees.
In April 2022, after the wife’s interim application was determined, which included an order for the husband to pay periodic spouse maintenance, he ceased paying the school fees. The husband contended that, from that time, the wife was liable to pay half of the school fees.
The wife lodged a reassessment with the Child Support Agency (“the CSA”) which was rejected on 24 May 2022. She then sought review which was rejected on 6 September 2022. The wife applied to the AAT for a review of the Child Support Registrar’s decision. The AAT determined that the assessment be varied and increased to include 50% of the AM School tuition fees for the balance of 2023, which then required the wife to pay one half of the fees for the 2023 year.
The reasons of the Senior Member are contained in Exhibit 15. The AAT determination was to increase the husband's annual rate of child support by $33,792 to reflect his contribution to the school fees of the girls at AM School. The tribunal determined that it would be just and equitable for the parties to share 50 per cent of the cost of their school fees. The AAT determination expired in December 2023.
The AAT determined that the wife would meet half of the school fees. The child support payments the husband was obliged to pay were often in arrears, but ultimately were paid via garnishee and departure prohibition order (“DPO”) as referred to elsewhere in these reasons. The husband has regularly failed to pay the assessed child support either in full or on time. The fact remains, however, that despite the poor attitude of the husband in respect of the timely discharge of his child support obligations, the question of liability for the payment of the outstanding school fees, is a separate question.
The AAT decision finally determined the issue as to the payment of the outstanding school fees for the relevant period. The decision was not appealed by the wife, such that it was finally determined that each would pay half of that amount.
The wife’s application is, in essence, to go behind the decision of the AAT. The wife did not appeal that decision at the time and this application is not by way of an appeal or review of the AAT decision.
It is not necessary to include all unsecured liabilities in the balance sheet. There is no binding rule, as that would limit the court’s wide discretion in respect of treatment of liabilities. Having regard to the particular circumstances of this case, and the determination made by the AAT, I find that it is just and equitable to exclude this liability from the balance sheet and make the order for payment as foreshadowed.
The husband and wife shall each meet 50 per cent of the outstanding liability to AM School from the property adjustment they receive, and shall each indemnify the other in respect of their 50 per cent share. I will exclude this amount from the balance sheet but take the obligation of each of the parties to meet this payment into account under s 75(2)(o).
(k) Item 34: The wife’s debt to her parents
The wife asserts that there is a liability to her parents of $226,349. The inclusion and existence of this liability is in dispute.
The wife’s father gave evidence that the wife owed her parents $131,349.06 at 15 May 2024, and that the amount was likely to increase by the time of final hearing as they had agreed to the wife receiving more funds from them to meet the associated legal costs. He deposes that, as set out in their loan agreement, the wife is to repay her parents at the conclusion of the proceedings. The wife’s father’s evidence was unchallenged. The wife also deposed that upon the finalisation of the property settlement, she will pay the outstanding amount owed to her parents. She was not challenged on this evidence in cross examination. In the wife’s sworn financial statement, she stated that the loan from her parents had an outstanding balance of $131,349 on a line of credit. I accept this evidence.
In relation to paid legal fees, the Full Court in Chorn v Hopkins (2004) FLC 93-204 (“Chorn & Hopkins”) observed as follows:
56.In summary, we consider that the above mentioned decisions of the Full Court establish that, while the treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial Judge, in determining how to exercise that discretion, regard should be had to the source of the funds.
57.If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party, who has had the benefit of them.
58.If funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post-separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties. Funds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post-separation income or acquisitions.
The Full Court in Chorn and Hopkins set out at [50], “If in the exercise of the discretion, it is determined that legal fees already paid should be taken into account as a notional asset, then normally any liability associated with the acquisition of the monies used to pay the legal fees should also be taken into account”.
The evidence supports the finding that the loan owing by the wife to her parents is both valid and enforceable, in accordance with their loan agreement and that they primarily relate to her legal costs. There was, however, no explanation as to the increase from $131,349.06 as deposed in the sworn evidence of the wife’s father at 15 May 2024 and the wife’s financial statement filed 14 May 2024, and the $226,349 figure included by the wife in the balance sheet at trial. In the absence of evidence as to this increase, and in circumstances where the wife did not file a costs notice in accordance with r 12.06(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), there is no basis for me to find that the value is $226,349. The height of the evidence before me as to the value of this liability is the unchallenged evidence of the wife’s father in his affidavit filed 15 May 2024.
Accordingly, I include the liability of the wife to her parents for the payment of legal costs in the asset pool at $131,349.06.
(l) Item 35: The wife’s debt to Mr F & Ms D for motor vehicle repairs
The wife contends on the balance sheet that there is a liability owed to her parents valued at $4,000 for costs incurred in the payment of repairs to a vehicle. The husband disputes its inclusion. In her financial statement she deposes to this sum being an outstanding liability. This particular debt was not referred to in cross examination, however, the wife had agreed that she had some funds transferred by direct credit to her parents in repayment of debts. Precisely how much was repaid was never put to her, nor were records identifying the relevant sum. The cross examination was limited to sums withdrawn or transferred that totalled $2,000 in 2023 and $6,000 in 2024. Mr F’s affidavit was received into evidence without objection. He gave no evidence of such an outstanding liability.
There was no direct evidence in respect of the alleged debt and no submission from either party as to the treatment of this alleged debt, nor why this item was included on the balance sheet. In the circumstances, doing the best I can on the evidence before me, I decline to include this in the balance sheet.
(m) Item 37: The wife’s HECS debt
The wife includes her outstanding HECS debt of $11,299 as a liability in the balance sheet. In her financial statement of 14 May 2024, she deposes that the figure is $10,791. The husband disputes its inclusion in the balance sheet.
In 2016, the wife began a postgraduate qualification at YY University, funded by a HECS/HELP loan over two years part-time. The wife was not challenged about this.
The study was commenced during the relationship and completed after separation. The wife has been working in the field of her education casually. The wife gave no evidence that her income had reached a level where the HECS/HELP liability is currently required to be paid. The husband in his case outline contends “given the current level of the applicant’s stated income there is no current liability.” I agree.
The nature of HECS/HELP loans are distinguishable from other debts. The liability will not become repayable until the wife earns over the threshold. Then her employers will withhold funds with her tax each pay cycle for her compulsory repayments. As such, it is not an existing liability, rather it is more appropriate to take this modest possible future liability into consideration under s 75(2)(o) as a factor against which her future income will be adjusted at a time when she earns over the threshold, if she ever does so. Accordingly, I exclude this liability from the balance sheet.
(n) Item 38B: The husband’s tax liability
The husband’s evidence is that his current income tax liability is $301,722, however, its inclusion in the pool is disputed by the wife.
In Prince and Prince (1984) FLC 91-501 (“Prince”), the Full Court stated at 79,077:
Of course, the Court cannot ignore the fact that there is or may be a liability; the effect is simply that it does not consider that the other spouse should be called upon to in effect "contribute" to the liability by having that spouse's fair share in the parties' property reduced by virtue of its existence. The effect may be that the party who has incurred the liability will be left to meet it out of whatever funds remain to that party after satisfying the property order made under sec. 79.
In the decision of the Full Court, in Murray & Murray (2020) FLC 94-000 (“Murray”), there was a refusal to include a tax debt of one of the parties on the balance sheet, the full context of which is useful to set out as follows from [43]–[45] and [48]–[49]:
43.The first tax debt of $160,791 was the subject of enforcement action by the ATO. Although its quantum was not in dispute, little else was known about the debt. There was no evidence about the type of tax it comprised or whether it included penalties. If it was income tax, there was no evidence of the financial years to which it related or, significantly, whether it was assessed on income earned by the appellant in the period between August 2015 and June 2017 when some of his income was diverted for use in ways which benefitted both parties under interim orders. The respondent suspected the tax related to post-separation income spent by the appellant for his own benefit, which tax he chose not to pay in a timely way despite his access to abundant cash.
44.The appellant asserted, without corroboration, that most of the tax debt comprised Capital Gains Tax ("CGT") on his sale of some shares for $800,000 in November 2016 (at [117] and [328]), but that is difficult to accept because such CGT would then have been levied on his 2017 income and the appellant deposed he had not yet lodged his 2017 or 2018 tax returns. The ATO would not have been engaged in enforcement action against him for the payment of tax not yet even assessed and levied. Source documents related to the computation of the tax must have been available for disclosure to the respondent, but none was disclosed.
45.The primary judge found the appellant failed to discharge the evidentiary burden he bore in respect of the debt which, on the evidence, was rational. There was no obligation on the primary judge to bring the tax debt to account in the balance sheet and, given the abject lack of evidence, the debt had no demonstrated nexus to any money from which the respondent derived any benefit. Since the debt must have related to financial years up to but not later than 2016, nor was there any explanation for why the appellant, despite his access to vast income, did not pay it sooner.
…
48.Importantly, the tax debts were not ignored altogether. Rather than them being taken into account as elements of the balance sheet, the primary judge took them into account as part of the adjustment exercise under s 79(4)(e) and s 75(2) of the Act. At that point in the reasons for judgment, his Honour said:
415.I accept the [appellant] shall be left with some tax liability but I am unable to say what it might be.
49. Ground 1 therefore fails.
(Bold added for emphasis)
The wife contends that the husband is responsible for the taxation liability. It was submitted on behalf of the wife that the husband’s revenue of $1.6 million or more over the past 11 months is not reflected in the pool or in the discharge of the taxation liability. She contends that the outstanding tax liability can form no part of the pool if an equitable outcome is to be achieved in the circumstances. The husband produced scant evidence of the make-up of the taxation liability, when it was incurred, or whether any part of the debt is general interest charges or other penalties.
The very limited evidence provided by the husband in respect of the taxation liability and how it was incurred was set out in the husband’s affidavit at [57] as:
(a)an outstanding tax liability to the ATO, as at 30 April 2024, of $197,495.50 which are the subject of an obligation to make monthly payments of $9,500;
(b) an obligation to pay the ATO the sum of $127,391.55 for the amount payable for the 2023/2024 tax return;
(c)my quarterly GST and income tax instalment for the second quarter of this year (which will be due during July) which is likely to in the amount of $120,000;
The other available evidence from the husband’s NAB account #...89, were payments made to the ATO reference #...60 on 2 April 2024 in the sum of $90,000, a further payment with the same reference on 29 April 2024 of $79,963, and a payment made (after his affidavit was filed) on 29 May 2024 of $50,560.30.
There was no evidence from the husband referencing these payments, nor explaining their impact if any on the liability to the ATO.
It was conceded by counsel for the husband, that his affidavit was the “high point” of his evidence. I was taken to no other evidence or document explaining how or when the outstanding taxation liability was incurred.
The principle in Blatch v Archer (1774) 1 Cowp 63, that evidence is to be weighted according to the capacity of the party to adduce it, applies in this case. The husband alone had the capacity to produce evidence relevant to his taxation liabilities, including details of his outstanding tax liability, the 2023/2024 return, the quarterly GST and income tax instalments and, as had been ordered to be provided, his relevant business activity statements (“BAS”). The husband did not give oral updating evidence as to the impact of the payment of $50,560.30 made on 29 May 2024. The husband elected not to produce evidence to explain the claimed liability despite his capacity to adduce it. The husband offered no evidence or explanation as to why he did not pay the tax debt from his income.
It was submitted by the husband that the wife should be obliged to take some of the tax in the pool in circumstances where the husband had been using his income to her benefit, including to pay spouse maintenance. It was contended by the wife, however, that the husband has not consistently provided support as required, for example, as he is again in arrears of child support. The husband has, however, paid regular spouse maintenance as ordered. I find that the husband has been using part of his income for the wife’s benefit at least to the extent of the spouse maintenance payments.
The husband pays $6,765 per week to his mortgage repayments to remain in occupation of the home. He says his partner lives there but does not contribute to this expense. Counsel for the wife contended that if the husband chooses to spend his income in that way, he cannot drive unpaid liabilities, such as outstanding taxation liabilities onto the wife. This argument has some merit.
Counsel for the husband submitted that the husband’s earnings post-separation have led to the mortgage on the Suburb C property being paid on an asset that remains in the pool. This also supports the contention that the incurred tax should be shared.
While I accept the wife received benefit by way of the spouse maintenance payments, the husband’s post separation income has been used primarily for his benefit and the particulars of the taxation liability (due to his own conduct in not producing evidence in his control) remains opaque.
The onus lies with the husband to explain why he was unable to pay his tax as it fell due in circumstances where he had significant taxable income as I have found below for the relevant financial year. In that year, the husband had the benefit of the income and, insofar as the tax was not paid, had the benefit of those funds as well. If the husband had evidence which explained his failure to pay the tax in the relevant year or even the preceding years, if that is when the liability accrued, then he ought to have brought the evidence before the Court.
In such circumstances, to allow the husband to include his tax liability as a joint debt in the balance sheet would create an injustice to the wife. As such, I do not include the claimed taxation liability as a liability of the parties on the balance sheet, though I will have regard to the husband’s obligation to meet his outstanding and ongoing taxation liability under s 75(2)(o).
(o) Item 38C: The husband’s Integrated Client Account tax liability
The husband estimated a value for this proposed liability of $80,000 for tax on April and May 2024 income. The value and its inclusion are disputed. The wife contends a nil value should be applied or that it should not be included. There was no evidence called by the husband of the actual quantum of the anticipated liability.
As discussed above, aside from the husband’s assertion in his trial affidavit, I was taken to no document or other evidence to enable me to make a finding as to the amount of any current liability. For the same reasons as set out above for item 38B, I exclude this item from the pool, but take into account that the husband will have taxation obligations arising from the income he earns under s 75(2)(o).
(p) Items 39 to 42: The husband’s credit cards
The value of the credit cards listed at items 39 to 42 are agreed between the parties, however the wife disputes their inclusion in the property pool.
It was submitted on behalf of the wife that the husband’s revenue of $1.6 million or more over the past 11 months is not reflected in the pool in cash, nor in the discharge of debts. The husband has credit card debt which he says should be included in the balance sheet such that the wife should share in the liability.
The husband’s oral evidence was that he paid for flights for his regular work trips on his credit card, however, there was no evidence that set out why this expenditure on the credit cards post separation should be included in the asset pool. The husband’s evidence was that he had a legacy credit card with a balance of $23 but that he also has four credit cards in his name. The wife’s evidence, which was not in dispute, was that she had reviewed his credit card statements which included expenditure on holidays, dining out, entertainment and day to day expenses, with a standard of living that is substantially greater than hers.
It was submitted that in light of the husband’s significant income, the credit card debts incurred by the husband in discretionary expenditure post separation, ought not appear in the balance sheet. The wife asserts that they can form not part of the pool if an equitable outcome is to be achieved in the circumstances.
The court has a wide discretion to make orders that are just and equitable. Given the absence of evidence as to the purpose of the credit card debts and when they were incurred, I will not include these liabilities in the balance sheet but will take them into account pursuant to s 75(2)(o).
(q) Item 43: The husband’s debt owing to Ms E
The husband asserts that he owes a debt to his partner, Ms E, in the amount of $250,000 which he said he used to satisfy a partial property settlement order. The wife disputes its inclusion in the balance sheet.
There is an unsigned loan agreement between the husband and Ms E dated 31 August 2022. The husband gave oral evidence of an executed loan agreement being in existence, and that it was a bona fide loan.
The husband said that Ms E had $250,000 available to lend him to meet the partial property settlement obligations, however, he contended that those funds came from her parents, were subject to a loan agreement, and were a transfer of generational wealth. Neither Ms E, nor her parents, gave evidence or produced documents which could corroborate this evidence.
In explaining the failure to call Ms E as a witness, the husband stated that Ms E was overseas and did not want to get involved in the parties’ dispute, adopting a position of neutrality because she does not want to be seen by the children as taking a side. The difficulty, however, is that Ms E has lived in the home which is the most substantial asset of the parties, and has made no contribution to the mortgage whilst herself receiving a not insignificant income, and it is claimed she is owed a significant sum of money by way of a repayable loan. The evidence in respect of the husband’s claims as to their financial intermingling and the claim of the loan could not be tested due to his decisions not to call Ms E in his case.
The husband provided no explanation for his failure to call evidence from Ms E’s parents.
It was submitted on behalf of the wife that the husband has used his income to meet expenditure that Ms E would ordinarily be required to contribute to, including mortgage repayments, servicing of vehicles, and payment of W’s daycare. She contended that it is reasonable to infer, in light of that evidence, that Ms E’s income has accumulated for their joint benefit. The wife submitted that the $250,000 was a payment out of savings Ms E has been able to generate as a consequence of a largesse afforded to her by the husband, by using his income for their joint purposes.
It was put to the husband that the $250,000 used for the partial property settlement came from the joint savings of him and Ms E. The husband denied this.
The failure of a party bearing an onus of proof to call an available witness or available evidence which that party is plainly in a position to call, gives rise to an inference that the evidence may not have assisted that person’s case. This is an inference I make in accordance with the rules in both Jones v Dunkel (1959) 101 CLR 298, particularly as to the husband’s failure to call Ms E, and in Blatch v Archer (1774) 1 Cowp 63, in his failure to produce and disclose in a timely way in accordance with the Rules, the executed loan agreement. That inference applies in this case as the husband failed to make disclosure in a timely way as he is required to, and failed to otherwise call evidence that could have corroborated his assertion.
I cannot be satisfied, nor can I infer that the husband and his partner had accumulated savings that have been used. There was no evidence called to support the contention of a generational wealth transfer from Ms E’s parents. The husband deposes in his sworn financial statement that Ms E earns $2,462 per week, and says she works as the head of “[an RR Company unit]”. There was no corroborative evidence tendered, and no evidence from Ms E. Therefore, I am in the dark as to her financial circumstances. This as I say was a choice made by the husband who could have, and chose not to, call her as a witness in his case.
I cannot be satisfied on the evidence as to the existence of any enforceable or indeed bona fide loan between the husband and Ms E, with the only admitted evidence being in the form of an unsigned loan agreement and the husband’s oral evidence. The husband was in the best position to support his claim with obvious and necessary evidence, which he failed to provide.
Accordingly, I am not satisfied of the existence of the debt and exclude the claimed liability of $250,000 from the balance sheet.
Treatment of alleged notional assets or “addbacks”
Addbacks are the exception rather than the rule, and an addback does not necessarily occur whenever a “party has expended money realised from the disposition of assets that existed as at the date of separation” (Omacini v Omacini (2005) FLC 93-218 at [39] (“Omacini”)). The proposition that any money expended would be added back is “unduly simplistic”.
It is necessary to have regard to the guiding principles which emerge from the decisions of Omacini, Kowaliw and Kowaliw (1981) FLC 91-092, and Townsend and Townsend (1995) FLC 92-569 in respect of the three “clear” categories of addbacks. Those authorities establish that where, exceptionally, the justice and equity of the case requires it, assets can be notionally added back, that being where the parties have expended money on legal fees, where there has been a premature distribution of matrimonial assets, and where there has been waste. It is appropriate in cases that fall outside the exceptional that justice and equity is achieved in relation to notional assets by taking them into consideration under s 75(2), as opined by the Full Court in Trevi & Trevi (2018) FLC ¶93–858 at [30].
The issues that required determination in respect of the characterisation of and treatment of notional assets, described by the parties as “addbacks”, are set out below:
(a)Item 47: should the wife’s paid legal fees with her current legal representatives be added back to the pool?
(b)Item 48: should the partial property settlement order be added back to the pool, and if so, at what value? Should it be re-characterised as sought by the wife?
(c)Item 49: should the husband’s paid legal fees be added back and at what value?
(d)Item 50: should the proceeds of sale of Motor Vehicle 2 applied to the purchase of vehicles registered in the name of the husband’s partner, Ms E (with the value of $15,000) and the proceeds of sale of a vehicle applied to the purchase of a vehicle registered in the name of Ms E (with the value of $10,000), be added back to the pool?
(e)Item 51: should the wife’s ½ share of the AL Valuers costs for 2019 and 2021 valuations paid by the husband be added back to the pool?
(f)Item 52: should the wife’s ½ share of mediator and venue hire for the mediation in December 2019 which was paid by the husband be added back to the pool?
(g)Item 53: should the bond paid by the husband for the wife’s rental at 2 J Street be added back to the pool?
(h)Item 54: should the money transferred to the wife’s parents be added back to the pool, and if so, at what value?
(a) Item 47: The wife’s paid legal fees - current representatives
The parties agree in the joint balance sheet that the wife’s paid legal fees for her current lawyers are nil, but note the “Wife paid legals are $161,005 but have been redpaid[sic] by Partial Property Settlement at line 48”. Accordingly, the parties agreed that this item is not included as a separate item.
(b) Item 48: The partial property settlement paid to the wife
The wife contends that the partial property settlement she received was used by her to pay school fees and legal costs. She seeks that the $250,000 received as interim property settlement be re-characterised given that a portion of the payment had been directed to private school fees. She accepted that the sum of $216,000 should be added back to the pool as included in the joint balance sheet (Exhibit 11). The husband seeks that the sum of $250,000 is added back in full. The difference being $34,000.
Orders were made by Smith J on 4 July 2022 for the husband to pay to the wife the sum of $250,000 within 60 days by way of interim partial property settlement (see Carswell & Tenson [2022] FedCFamC1F 467).
Counsel for the husband contended that the Court is estopped from re-characterising that sum. She took me to no authority in support of the proposition. I do not accept that submission for the reasons that follow. The wife spent significant funds on school fees for the benefit of the parties’ children. The wife was notified by the school in September 2022, when the arrears “reached about $33,000”, that unless a payment was made, the enrolment of the girls would be terminated. The sum she seeks to exclude from the add-back is $34,000. I accept her evidence that the arrears of school fees were required to be paid to preserve their enrolment and that the payment was made from the partial property division. It was reasonable for her to do so and was not conduct that would otherwise justify an addback. I am not persuaded it should be added back into the pool.
Accordingly, I include from the partial property settlement, the sum of $216,000 being the sum the wife spent on her legal costs.
(c) Item 49: The husband’s paid legal fees
In submissions, the parties agreed to a value of $292,000 by consent and I adopt this agreed figure as the amount the husband paid for legal fees and include the sum accordingly.
(d) Item 50: The proceeds of sale of Motor Vehicle 2 and other vehicles
The wife asserts that the sale proceeds of these vehicles are a notional asset with a total value of $25,000.
The husband said that he and Ms E purchased Motor Vehicle 5, that they each made contributions to its purchase, and that vehicle was traded in later to purchase Motor Vehicle 1. The husband deposes that at the time of separation he owned Motor Vehicle 2, which has since been sold by him for approximately $15,000. He denied that the proceeds of sale were used to purchase Motor Vehicle 1 in Ms E’s name, rather he says that the proceeds went into his business bank account, and they were consumed.
There was no evidence or submission made as to the use of the proceeds of sale from Motor Vehicle 2. I accept the husband’s evidence about the trade in of Motor Vehicle 5. Parties are not required to go into suspended economic animation after separation, and I am not satisfied that there is any reason why the sale proceeds of the vehicle should be added back into the pool.
(e) Item 51: The wife’s share of the AL Valuers costs for 2019 and 2021
The husband asserts that $2,612, being the wife’s share of the AL Valuers costs for 2019 and 2021, should be added back into the pool.
Consent orders made by Senior Judicial Registrar Hoult on 14 October 2021 state:
THE COURT ORDERS BY CONSENT THAT:
…
4.The fees of the single expert appointed to prepare an updated valuation the [Suburb C] property be paid by the parties in equal shares, with the husband to pay the wife's half share in the first instance and to be reimbursed from the wife's share of any final property settlement she receives.
AND THE COURT NOTES THAT:
…
B.The parties have agreed to engage [AL Valuers] as a single expert to prepare a valuation of the [Suburb C] property.
These orders were made by consent. Neither party made submissions in relation to the inclusion of this item in the balance sheet, nor was there any evidence in the parties’ affidavit or oral evidence. The only inference available to me, based on these consent orders, is that the intention was for the wife’s half share to be paid upon the final determination of the matter.
The wife now disputes its inclusion, in circumstances where she previously consented to the terms of the orders. No submission was made in support of this position.
Curiously, the parties could not reach agreement in respect of a number of small amounts in the balance sheet. As they have not been able to, it has been necessary to consider the evidence and make findings.
Given the consent order, the wife’s share of the valuation costs will not be added back into the property pool. In this instance, given the consent order, the settlement sum that the husband is to pay to the wife will be reduced by the sum of $2,612 in order to put into effect the consent order of 14 October 2021.
(f) Item 52: The wife’s ½ share of costs for mediation in December 2019
The husband asserts that $3,150, being the wife’s share of the mediation costs from December 2019, should be added back into the pool.
Consent orders made by McClelland DCJ on 24 October 2019 set out:
1. The parties attend mediation with [Mr AB] within the next two months, with the husband to pay the cost of the mediator and rooms at first instance.
This order was made by consent in 2019. No party gave any evidence or made submissions as to the treatment of this line item, but there was no order that it was to be reimbursed. It is a de minimus amount that was incurred six years ago. Noting the time that has passed since the payment was made and the husband’s earnings over that time, I decline to add back the half share of the costs of mediation as sought by the husband.
(g) Item 53: The bond for the rental at 2 J Street
The husband asserts that the payment of $5,180 for a bond for the wife’s rental property at 2 J Street should be notionally added back. The amount appears in the husband’s financial statement at Part I, being property he says is owned by him. However, there is no evidence about the source of payment of this money, whether it came from joint funds or where it is now.
The wife at [168] of her affidavit gives evidence that agreement was reached about a bond being paid for her to vacate the former matrimonial home. No submission was made as to any findings that could be made about the alleged addback or its treatment. There is no evidence at all about the circumstances of this payment. I am unable to make a finding that the funds should be notionally added back as sought by the husband and I decline to include the sum.
(h) Item 54: The money alleged to have been transferred to the wife’s parents
The husband asserts that $184,596 should be added back into the pool, being funds he says was transferred to the wife’s parents by her. The husband’s evidence is that the wife gave him a spreadsheet identifying that she paid $184,596 to her parents from 31 August 2017 until 30 April 2024. This spreadsheet was not put to the wife and was not tendered by either party. Mr F’s affidavit deposed that the amount now owing to them for legal costs paid on behalf of their daughter through their line of credit is $131,349. He was not required for cross examination. His affidavit was accepted into evidence without challenge. No annexures to his affidavit were tendered in evidence. Rule 8.15(3)(e) requires a document used in conjunction with an affidavit to be separately tendered at the hearing of the application for it to be accepted by the court.
v. that within 14 days of the date of these Orders, the parties shall sign all authorities and execute all documents necessary to instruct the agent to act on the sale of the Property (‘the Agent’).
vi. the parties shall be responsible for giving joint instructions to the Agent acting on the sale of the Property;
vii. the costs of the Agent shall be borne equally between the parties; and viii. the parties shall follow the reasonable recommendations of the Real Estate Agent as to the method of sale, listing price, reasonableness of Offers and reasonableness of any Counter Offers.
b) Conveyancing solicitors
i. that within 7 days of the Due Date, the Wife shall nominate in writing to the Husband the names of 3 qualified conveyancing solicitors or settlement agents (‘settlement agent’), who have consented to act;
ii. if the Wife does not nominate 3 settlement agents within 7 days of the Due Date, the Husband may nominate a settlement agent at his sole discretion and notify the Wife within a further 7 days, and that will be the settlement agent for the purposes of the sale;
iii. if the Wife does nominate 3 settlement agents, then within a further 7 days the Husband shall select the preferred agent of those nominated by the Wife, and then that settlement agent will be the settlement agent for the purposes of the sale;
iv. if the Husband does not select 1 settlement agent within 7 days, the Wife choose one of the 3 nominated settlement agents at her sole discretion and that will be the settlement agent for the purposes of the sale;
v. that within 14 days of the Due Date the parties shall sign all authorities and execute all documents necessary to instruct the settlement agent to act on the sale of the Suburb C Property; and
vi. the costs of the settlement agent shall be borne equally between the parties.
c) Auction
i. that the Suburb C Property be placed on the market for sale by auction within 28 days of the date of the default of the Payment;
ii. the husband vacate the property no less than 7 days prior to the date of the auction and ensure that same has been professionally cleaned, at the Husband’s cost;
iii. that such an auction take place within 42 days from the date of placing the Property on the market for sale by public auction, or as soon as practicable thereafter;
iv. A reserve price shall be fixed by written agreement between the parties within 7 days of the property being listed for auction;
A. Failing agreement as to a reserve price, within 7 days of the Suburb C property being listed for auction, the parties agree a valuer, or failing agreement the Single Expert Witness in these proceedings, AL Valuers, be instructed as the Valuer;
B. The valuer shall set the reserve price; and
C. The parties shall share the costs of the Valuer equally.
v. In the event that the Property fails to be sold at the auction referred to above the Property shall be resubmitted for auction at a reserve price 5% lower than at the previous auction, and shall continue to be resubmitted for auction every 4 weeks with a further 5% reduction in the reserve price until such time as the Property is sold.
3. Pending the Husband vacating the Suburb C Property pursuant to the preceding Order:-
a) the Husband maintain the Property in a good and tenantable state of repair; and
b) the Husband pay each instalment on the home loan and each encumbrance secured against the Property, as it falls due;
c) the Husband meet the costs of the council rates and charges, insurance premiums and all utilities of the Property as and when they fall due;
d) the Husband do all things reasonably requested by the Agent to cooperate and assist in marketing the Property, including to ensure the Property is clean and permit home opens and inspections by interested parties if same occur prior to him vacating same;
e) the Husband shall maintain the property in reasonable condition and repair pending completion of sale, and at his cost; and
f) the Husband indemnify the Wife and keep her indemnified in respect of each of the above obligations.
4. Failing the Payment by the Husband to the Wife by the Due Date, the Wife be at liberty to inspect the Suburb C property as and when she reasonably requests with such inspection to be coordinated by the Wife with the Agent, and the Husband facilitate attendance at the Suburb C property by the Agent and the Wife within 72 hours of the request being made.
5. Pending settlement of the sale:-
a) the parties be restrained from renting, letting or tenanting the Property in any way, without the prior written consent of the other party; and
b) the parties be restrained from taking any step to further encumber the Suburb C property, without the prior written consent of the other party; and
c) the parties be restrained from taking any step to cause a reduction to the purchase price of the property, or to engage with any prospective purchasers of the property in any way which the Agent considers may cause a reduction in the purchase price; and
d) in the event a prospective purchaser makes an offer to purchase the Property prior to the proposed date for auction, the parties may agree on a price and to sell the Property to such a purchaser in writing. In the event that the parties are unable to agree on a price then the Property shall proceed to auction; and
e) the parties or either of them may lawfully bid at the auction.
6. Upon the settlement of the sale of the Suburb C Property, the proceeds of sale be distributed as follows:-
a) in repayment of the real estate agent’s costs and the settlement agent’s costs;
b) in repayment of the encumbrances secured against the property;
c) $2,200,000 or such other amount as the Court determines represents 70% of the net matrimonial pool, be paid to the Wife; and d) the balance be paid to the Husband.
Existing Property
7. The Husband transfer and assign any right, title or interest he may have in the following property, to the Wife:-
a) any funds standing to the Wife’s credit with any bank, building society or financial institution;
b) any motor vehicles registered in the Wife’s name;
c) any right, claim or chose in action she may have, including any entitlement in any trust or testamentary estate;
d) the furniture, household contents and items in the Wife’s possession;
e) the below artwork in the Husband’s possession, and identified as the following:-
[various artworks listed]
and the Husband make the above artwork available for collection by the Wife or an agent on her behalf, within 14 days of these Orders;
f)the following further furniture, chattels and household items in the Husband’s possession:
[List of items omitted]
and the Husband make the above items available for collection by the Wife or an agent on her behalf, within 14 days of these Orders;
g) any clothing, jewellery or personal items in her possession and control;
h) the frequent flyer points accrued by the Wife; and
i) her entitlements in any Superannuation Fund of which she is a member.
8. The Wife transfer and assign any right, title or interest she may have in the following property, to the Husband:-
a) Any funds standing to the Husband’s credit with any bank, building society or financial institution;
b) Any motor vehicles registered in the Husband’s name;
c) Any right, claim or chose in action he may have, including any entitlement in any trust or testamentary estate;
d) The furniture, household contents and items in the Husband’s possession save as are otherwise provided for in these Orders;
e) Any clothing, jewellery or personal items in his possession and control;
f) The frequent flyer points accrued by the Husband; and
g) his entitlements in any Superannuation Fund of which he is a member.
Indemnities
9. Each party do pay and indemnify the other against any actions, claims, debts or liabilities arising in their name or on their behalf being:-
a) loans;
b) credit cards;
c) Goods and services tax;
d) pay as you go instalment assessments; or
e) income tax assessments,
held or otherwise arising in their name.
Other Orders Sought
10. If either party refuses or neglects to execute any deed or instrument necessary to give effect to the Orders set out in paragraph 2 above, the Registrar of the Court be appointed pursuant to s 106A of the Family Law Act 1975 to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
SPOUSAL MAINTENANCE ORDERS SOUGHT
11.Pursuant to section 77A of the Family Law Act 1975, and within 35 days of the date of these Orders, the Husband pay $150,000 to the Wife by way of lump sum spousal maintenance (‘Lump Sum Order’),
Or in the alternative to the Lump Sum Order,
The Husband pay to the Wife for a period of three years from the date of these Orders, the amount of $1,000 per week by way of periodic spousal maintenance and paid on a weekly basis in advance.
CHILD SUPPORT ORDERS SOUGHT
12. That pursuant to sections 118 and 124 of the Child Support (Assessment) Act 1989, there be a departure from the administrative assessment of child support payable by the Husband for the children, such that the Husband pay the following:
a) the amount of $750 per week to the Applicant by way of periodic child support, reduced on a pro-rata basis when each child of the marriage turns 18;
b) all tuition fees and levies including insurances and the technology levy charged in respect of the attendance of X and Z at AM School respectively, or at such other schools as Z and X may attend subject to paragraph 15, until each of Z and X finishes secondary school;
c) all fees and costs of AM School curricular sporting activities for each of X and Z as they appear on the school/s invoice;
d) costs of the AM School uniform for each of X and Z being:-
i. in each year of school, the Husband pay for one Winter Uniform and one Summer Uniform for each of X and Z;
ii. in each year of school, the Husband pay for all of the compulsory items identified in the AM School Sports Uniform List for each of X and Z;
e) all tuition fees and levies charged in respect of the attendance of Y at any State school facility or selective State school facility, or alternatively at any of the below private schools:-
i. AG School; and
ii. AH School;
until Y finishes secondary school;
g) the cost of the children’s school textbooks and equipment as identified in:-
i. the AM School Book List and Stationary List or equivalent for each of X and Z in each year of their schooling; and
ii. the Book List and Stationary List or equivalent for Y in each year of his schooling;
h)all additional or gap medical expenses for the children for medical treatments, dental and orthodontic work as recommended by their treating Dentist or Orthodontist, psychology, psychiatry, occupational therapy, physiotherapy, and hospital expenses;
i) in relation to the expenses described at Orders 8b) to 8g) above, the Husband pay the costs directly to the service provider within the service providers terms.
13. Pursuant to sections 118 and 124 of the Child Support (Assessment) Act 1989, the Husband forthwith pay all arrears owing to AM School for the enrolment of X and Z, including all interest accruing or owed on any arrears, and indemnify the Wife in relation to these amounts.
14. Any administrative assessment requiring the payment of periodic child support by the Husband or the Wife that may issue from time to time by the Child Support Agency in accordance with the Child Support Assessment Act, is to be varied to nil.
SCHEDULE 2: HUSBAND’S PROPERTY ORDERS SOUGHT
FINAL ORDERS SOUGHT
Property Orders
1.Within 120 days of the date of these Orders, the Husband to pay to the Wife the further sum of $1,400,000 (“the Settlement Sum”).
2. Within 120 days of the date of these Orders and simultaneously:
2.1.the Wife will do all acts and things and sign all documents necessary to transfer the whole of her right, title and interest in the CC Street property to the Husband; and
2.2.the Husband will do all acts and things and sign all documents and pay all moneys necessary to cause the CC Street mortgage to be discharged.
3.In the event the Husband fails to comply with Order 1 above within the time specified ("the operative date") or within such longer time as agreed in writing between the parties, the parties shall forthwith do all acts and things and sign all documents necessary to sell the CC Street property for the best price reasonably obtainable in such manner as the Husband and the Wife agree upon in writing and failing agreement, in the following manner:
3.1.the parties shall within 7 days from the operative date instruct such lawyer as they agree upon in writing to have the conduct of the sale, and in the absence of agreement as to the lawyer within 7 days of the operative date, the selling parties shall instruct such lawyer as is appointed by the President for the time being of the New South Wales Law Society ("the lawyer"), the costs of and incidental to such appointment to be borne by the parties in equal shares as and when same fall due;
3.2.the parties shall within 7 days of the operative date appoint such agent as they agree upon in writing to have the conduct of the sale, and in the absence of agreement as to agent within 7 days of the operative date, the parties shall instruct such agent as is appointed by the President of the Real Estate Institute of New South Wales ("the agent"), the costs of and incidental to such appointment to be borne by the parties in equal shares as and when same fall due;
3.3.the parties shall list the CC Street property with the agent for sale by public auction within 8 weeks of the operative date;
3.4. the parties shall cooperate in every way with the agent including:
3.4.1. making access to the CC Street property available to the agent;
3.4.2.allowing inspection of the CC Street property at all reasonable times requested by the agent;
3.4.3. doing or saying nothing to hinder or prevent a sale being effected;
3.4.4.ensuring the CC Street property is in a tidy condition at the time of inspection by the agent and prospective purchasers; and
3.4.5.signing all documents requested by the agent in relation to the listing for sale of the CC Street property except a contract or agreement for sale which has not been authorised by the lawyer;
3.5.the reserve price at the auction shall be such price as the parties agree upon in writing or, in the absence of agreement within 14 days of the operative date, shall be the price nominated as the fair market value of the CC Street property by a valuer appointed by the President for the time being of the Australian Property Institute Incorporated (NSW Division) ("the valuer"), the costs of and incidental to such appointment and valuation to be borne by the parties in equal shares as and when same fall due;
3.6.if the bidding at the auction does not reach the reserve price, the Husband and the Wife may negotiate with the highest bidders or any other interested person and effect the sale of the CC Street property at a price which is not more than 10% below the reserve price, or at such other price as the parties agree upon in writing; and
3.7.in the event the CC Street property is not sold by public auction as contemplated by Order 3.3, the parties do all acts and things and sign all documents necessary so as to list the CC Street property for sale by private treaty with the agent.
4.On settlement of the sale of the CC Street property, that the parties do all acts and execute all documents required to cause the sale proceeds to be paid in the following manner and priority:
4.1.all costs and expenses of sale including legal costs and disbursements, agent's commission, costs of and incidental to the appointment of the agent, valuer's fees, if any, and auction expenses;
4.2.any amounts required to pay all municipal and water rates outstanding, and any amount to pay or discharge any mortgage on the title of the CC Street property;
4.3.an amount of $150,000 to be invested in an interest-bearing account in the joint names of the Husband and the Wife and to be held pending compliance by both the husband and the wife with Order 5; and
4.4. the balance of proceeds shall be distributed as follows:
4.4.1. the Settlement Sum, or any part thereof outstanding, to the Wife; and
4.4.2. the balance remaining (if any) to the husband.
5.In the event the CC Street property is sold pursuant to Order 3, the Husband and the Wife shall pay as and when same falls due all tax including capital gains tax payable, whenever payable by either or both of them as a consequence of the sale of the CC Street property, in equal shares, and if following the payment of such tax there is any balance remaining of the funds invested by the parties pursuant to Order 4.3 then such balance shall be paid to the parties pursuant to Order 4.4.
6.Each of the Husband and the Wife shall be solely, legally and beneficially entitled to the exclusion of the other party, to all other real and personal property of whatsoever nature and kind as is in their respective ownership, possession and/or control, or to which he or she may become entitled including, but not limited to, money on deposit, artworks, bank accounts, shareholdings, insurance policies, motor vehicles, superannuation interests and personal effects.
7.Each of the Husband and Wife are to pay within 7 days 50% of the liability to AM School identified in the Joint Balance Sheet filed on 6 June 2024.
8.The Husband shall do all acts and things necessary to indemnify, and keep indemnified, the Wife from and against all liabilities of the Husband including, but not limited to:
8.1.all liabilities including claims, actions, suits or demands of whatsoever nature arising out of, or in connection with, the husband's interest in any business or real property;
8.2. the debt owed by the Husband to the Husband’s partner, Ms E;
8.3. any debts owed by the parties to the Husband's mother, Ms B;
8.4. the debt owed by the parties to MM Pty Ltd;
8.5. taxation (including CGT); and
8.6. duties (including stamp duty),
whether past, present or future.
9.The Wife shall do all acts and things necessary to indemnify and keep indemnified, the Husband from and against all liabilities of the Wife including, but not limited to:
9.1.all liabilities including claims, actions, suits or demands of whatsoever nature rising out of, or in connection with, the wife's interest in any business or real property;
9.2.any debt owed by the Wife to her parents, Mr F and Ms D or any other party;
9.3. taxation (including CGT); and
9.4. duties (including stamp duty),
whether past, present or future.
10.The Wife shall sign the Plan of Redefinition/Cadastral Plan provided by Mr N in relation to the CC Street property within 7 days of date of these Orders.
11.In default of either or both the Husband and the Wife doing all such things and executing all such documents as may be necessary to comply with these Orders within the time provided, a Judicial Registrar of the Sydney Registry of the Federal Circuit and Family Court of Australia or such other person appointed by the Court be authorised pursuant to Section 106A of the Act to do all such acts and things and execute all such documents on behalf of either or both parties.
Child Support Orders
12.Pursuant to section 118 and 124 of the Child Support (Assessment) Act 1989, there be a departure from the administrative assessment of child support payable by the Husband for the Children, such that the Husband pay pay [sic] annual tuition fees and technology levies imposed by AM School from Term 3 2024 and for such time as X and/or Z attend that school (with such amounts not to be credited by the Husband against any administrative assessment requiring the payment of periodic child support by the Husband to the Wife that may issue from time to time by the Child Support Agency in accordance with the Child Support (Assessment) Act 1989).
Notations
The Court notes the Husband will pay to the Wife the amounts administratively assessed to be paid by the Child Support Agency for the Children as and when they are liable to the paid
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