Charles & Charles
[2023] FedCFamC2F 1237
•22 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Charles & Charles [2023] FedCFamC2F 1237
File number(s): NCC 3549 of 2021 Judgment of: JUDGE NEWBRUN Date of judgment: 22 September 2023 Catchwords: FAMILY LAW – PROPERTY – Just and equitable orders made. Legislation: Family Law Act 1975 (Cth) ss 75(2), 79 Cases cited: Lotta & Lotta [2017] FamCA 50 Division: Division 2 Family Law Number of paragraphs: 66 Date of hearing: 15 September 2023 Place: Parramatta Counsel for the Applicant: Mr Battley Solicitor for the Applicant: Warwick McCarthy & Co Solicitors Counsel for the Respondent: Mr Bateman Solicitor for the Respondent: Osborne Legal ORDERS
NCC 3549 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CHARLES
Applicant
AND: MS CHARLES
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
22 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.Within 3 months from the date of these Orders the following shall occur simultaneously:
(a)The wife shall pay the husband the sum of $58,213.
(b)The husband shall do all acts and things and sign all documents necessary to transfer to the wife all of his right title and interest in the property situate at B Street, Town C (hereinafter “B Street”).
(c)The husband shall do all acts and things and sign all documents necessary to transfer to the wife all of his right title and interest in the property situate at D Street, Town C (hereinafter “D Street”).
(d)The wife shall refinance the mortgage with NAB over B Street and D Street into her sole name.
2.Failing the wife complying with the above Order, the husband and wife shall forthwith do all acts and things and sign all necessary documents to effect a sale of B Street and by way of consequential arrangement:
(a)The listing price for B Street shall be as agreed between the parties and if there is no agreement then the listing price shall be $156,000.
(b)B Street shall be listed for sale by private treaty with an estate agent as agreed upon between the parties and if there is no agreement then the estate agent shall be as nominated by the President of the Real Estate Institute of New South Wales.
3.On completion of the sale in accordance with the above Order, the proceeds of the sale shall be distributed in the order set out below after the usual adjustments (up to completion) are made for any land tax, council rates or water rates:
(a)In discharge of the mortgage loan ending …80 to NAB;
(b)Payment of all selling estate fees and marketing expenses in respect of the sale;
(c)Payment of all solicitor’s professional fees and disbursements in respect of the sale;
(d)As to the balance:
(i)The husband shall receive $58,213 less his half share of the expenses in (b) and (c) above;
(ii)The wife shall receive the balance less her half share of the expenses in (b) and (c) above.
4.Should B Street not be sold within 3 months of being listed for sale pursuant to the Order 2, then:
(a)The parties shall instruct the estate agent to list B Street for sale by private treaty at a price agreed to by the parties and failing agreement at a figure of 5 per cent less than the initial listing price;
(b)Interest shall accrue in favour of the husband on the sum of $58,213 at the rate prescribed by r 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth);
(c)The proceeds of sale shall be distributed in accordance with Order 3 above.
5.As between the husband and wife, and subject to the above Orders, the husband and wife shall each respectively retain all interest in and entitlement to:
(a)All personal property now in his/her respective possession or control.
(b)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively.
(c)All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.
6.As between the husband and wife and subject to these Orders they are each solely responsible for and shall indemnify the other party in relation to any debts or liabilities standing in their sole name as at the date of these Orders.
7.The husband shall remain liable for the loan from his parents relating to B Street ($49,000) and shall indemnify the wife in relation to that loan.
8.Both the husband and wife hereby release the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.
9.The parties will do all acts and things necessary and give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed.
10.The parties and each of them is ordered to do all acts and things and sign all documents to give effect to these Orders and in the event of either party failing, neglecting or refusing to do any act or thing or sign any document which is required to give such effect, a Registrar of the Federal Circuit and Family Court of Australia is appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) (as amended) to do such act or thing or sign such document in the name of the defaulting party and on that party's behalf.
11.Liberty to the parties to apply to the Court on 7 days’ notice in respect to the implementation or facilitation of the above Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
These are Reasons for Judgment relating to a final property hearing held before the Court on 15 September 2023.
The applicant husband and respondent wife both appeared (hereafter the “husband” and the “wife”). The parties appeared with legal representation.
PROPOSALS
By his proposed Minute of Order attached to his Outline of Case filed 4 August 2023, the husband seeks final orders in the following terms:
Property adjustments
1.On or before the expiration of twelve (12) weeks from the date hereof, the following shall occur simultaneously:-
(a)The applicant husband will do all such acts and things and sign all necessary documents to transfer to the respondent wife at the respondent wife’s expense all his right title and interest in the real property known as “[B Street]”, situated at [Town C], in the State of New South Wales and being the whole of the land comprised in title reference […] (“[B Street]”);
(b)The respondent wife will do all such acts and things and sign all necessary documents to transfer to the applicant husband at the applicant husband’s expense all her right title and interest in the real property known as “[D Street]”, [Town C], in the State of New South Wales and being the whole of the land comprised in title references […], […] and […] (“[D Street]”);
(c)The applicant husband will do and say all acts and things necessary to repay, discharge in full, transfer into his sole name and indemnify the respondent wife in relation to:-
(i)The National Australia Bank facility secured over “[B Street]” and “[D Street]”, being the National Australia Bank Loan account ending #...80, which has an approximate balance of $73,000;
(ii)The National Australia Bank facility secured over “[B Street]” and “[D Street]”, being the National Australia Bank Loan account ending #...75, which has an approximate balance of $13,500;
(iii)Any and all debt owing to the applicant husband’s parents, which have an approximate balance of $49,000.
Superannuation: -
2.Paragraph 2–10 of these orders are binding on the trustees of the [Super Fund 1] (“the fund”).
3.The base amount allocated to [Ms Charles] (“respondent wife”) out of the interest of [Mr Charles] (“applicant husband”) (Customer number …88, Account Number …09) in the fund is $35,000 (“the base amount”).
4.Pursuant to s 90XT(1)(a) Family Law Act 1975, whenever a splittable payment becomes payable in respect of the interest of the applicant husband in the fund, the respondent wife is entitled to be paid an amount calculated in accordance with Part 6 Family Law (Superannuation) Regulations 2001 using the base amount and there be a corresponding reduction in the entitlement of the applicant husband.
5.These orders have effect from the operative time and the operative time is the beginning of the day upon which these Orders are made.
6.Within 14 days of becoming entitled to receive a superannuation benefit from the fund, the respondent wife will give the trustees of the fund: -
(a)All such forms as necessary to enable it to determine the nature and quantum of the applicant husband’s superannuation entitlement; and
(b) Any other related information it may reasonably require.
7.Until such time as the superannuation split to the respondent wife pursuant to these orders can be rolled over into a separate account to the respondent wife: -
(a)The applicant husband will give to the respondent wife written notice not less than 28 days before such time as they elect to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part their entitlement in the fund;
8.The applicant husband will direct and authorise the trustee of the fund to communicate with the respondent wife and/or any person authorised by them in writing: -
(a) To answer any reasonable inquiries as may be made by them or on their behalf from time to time regarding their entitlement in the fund;
(b)To give to the respondent wife and/or their authorised representative a copy of any notice of any application or request by the respondent wife which seeks release of entitlements in the fund in so far as that release may affect the respondent wife’s entitlement in the fund pursuant to these orders; and,
(c)The applicant husband, their servants and/or agents be and are hereby restrained from doing any act or thing which would prevent the wife, her heirs, executors, administrators or nominees from receiving the benefits in the fund to which they are entitled pursuant to these orders.
9.In the event that the superannuation split to the respondent wife pursuant to these orders can be rolled over into a separate account each of the parties will each do all such acts and things and execute all such documents as may be necessary to facilitate and to implement the rollover.
10.There be liberty to each party and the trustee of the fund to apply regarding the implementation of these orders affecting the interests of the husband and the wife in the fund.
General: -
11.As between the applicant husband and respondent wife, and subject to the above Orders, the applicant and respondent shall each respectively retain all interest in and entitlement to:
(a) All personal property now in his/her respective possession or control.
(b)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively.
(c)All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.
12.As between the applicant husband and respondent wife and subject to these Orders they are each solely responsible for and shall indemnify the other party in relation to any debts or liabilities standing in their sole name as at the date of the Orders to property they retained pursuant to these Orders.
13.Both the applicant husband and respondent wife are hereby release [sic] the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.
14.The parties will do all acts and things necessary and give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed.
15.Except as otherwise provided by these Orders the parties and each of them is declared to be the sole beneficial owner of all property whether real or personal, including but not limited to any bank accounts, furniture, shares or investments in their respective sole names or under the control of or in the possession of each party respectively as at the date of these Orders being made.
11.Except as otherwise provided by these Orders the parties and each of them is declared to be solely responsible for any debt or liability standing solely in the name of either party respectively as at the date of these Orders being made and/or attaching to any item of property to be retained by either party as a result of these Orders.
12.The parties and each of them is ordered to do all acts and things and sign all documents to give effect to these Orders and in the event of either party failing, neglecting or refusing to do any act or thing or sign any document which is required to give such effect, a Registrar of the Federal Circuit Court of Australia is appointed pursuant to Section 106A of the Family Law Act (1975) (as amended) to do such act or thing or sign such document in the name of the defaulting party and on that party's behalf.
NOTATION
A.As far as it is practicable to do so that the orders are made having regard to the provisions of section 81 of the Family Law Act 1975 with a view to determining for all time the financial relationship between the parties and avoiding further proceedings between them.
B.The court notes that the parties have for the purpose of finally determining the financial relationships between them and to avoid further proceedings between them agreed as follows: -
(a)Subject to the approval of the Supreme Court of pursuant [sic] to the legislation relating to the release of rights to apply for a family provision order, the respondent and the applicant each releases their rights to make an application in relation to the estate of the other pursuant to such legislation;
(b)The respondent and the applicant each gives that release in consideration of the other terms of this agreement;
(c)The respondent and the applicant acknowledge that it is to their advantage in the light of the terms of this agreement to grant the release;
(d)The respondent and the applicant acknowledge the terms of this agreement and that they have taken into account the position of the other in the event of the death of the other;
(e)The respondent and the applicant accept that for the purposes of the Act relating to the release of rights to apply for a family provision order, the provisions of this agreement including this release are fair and reasonable; and,
(f)At any time after the execution of this agreement the respondent or the applicant or their legal representative may request the other party or their legal representative to join in at the cost of the one requesting an application to the court for the approval of this agreement to relinquish all claims under the Act relating to orders for family provision. If such a request is made the other covenants to comply with such a request and to do all things reasonably necessary to obtain the approval of the Supreme Court at the cost of the one requesting.
(Numbering as per original)
The wife seeks orders as set out in her Response to Final Orders filed 26 October 2023 as follows:
1.The Applicant shall do all acts and things and sign all documents necessary to transfer to the Respondent all of his right title and interest in the property known as “[B Street]”.
2.The Applicant shall do all acts and things and sign all documents necessary to transfer to the Respondent all of his right title and interest in the property known as “[D Street]”.
3.The Respondent shall refinance the mortgage with NAB over “[B Street]” and “[D Street]” [sic] into her sole name.
4.Compliance with Orders 1 – 3 (inclusive) shall occur simultaneously and within sixty (60) days of the date of these Orders.
5. The Applicant be declared the sole beneficial owner of: -
5.1.All items of moveable property, household chattels and personal effects in his possession.
5.2. All motor vehicles registered in his sole name.
5.3.All bank accounts or accounts with other financial institutions standing in his name.
5.4. Any superannuation held in his sole name.
5.5 All other assets in his possession as at the date hereof.
6. The Respondent be declared the sole beneficial owner of: -
6.1.All items of moveable property, household chattels and personal effects in her possession.
6.2. All motor vehicles registered in her sole name.
6.3.All bank accounts or accounts with other financial institutions standing in her name.
6.4. Any superannuation held in her sole name.
6.5. All other asset in his possession as at the date hereof.
7.That unless otherwise specified in these orders and save for the purpose of enforcing monies due under these or any subsequent orders:
7.1.Each party be solely entitled to the exclusion of the other, to all other property, including choses in action, in the possession of such party as at the date of these Orders.
7.2.Each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other.
7.3.Insurance policies remain the sole property of the owner named thereon.
7.4.Unless otherwise specified in these Orders each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled, pursuant to these Orders.
7.5.Each party be solely liable for debts in that party's name and indemnify the other party in relation thereto.
MATERIAL RELIED UPON
The husband relied upon:
(a)Application for Final Orders filed 14 September 2021;
(b)His affidavit filed 14 September 2021;
(c)His affidavit filed 4 May 2023;
(d)Financial Statement filed 4 May 2023.
The wife relied upon:
(a)Response to Final Orders filed 26 October 2021;
(b)Her affidavit filed 27 June 2023;
(c)Financial Statement filed 22 June 2023.
The following documents became exhibits:
(a)Exhibit A: Tabs 5–7, 13–18 of husband’s tender bundle;
(b)Exhibit B: Husband’s 2023 tax return;
(c)Exhibit C: Revised draft joint balance sheet.
EVIDENCE
The Court has considered the documentary material relied upon by the parties discussed above, the parties’ oral evidence, and the oral evidence of the wife’s partner. The standard of proof applied by the Court in respect to the evidence is the balance of probabilities. The Court does not propose to set out the entirety of the evidence. Relevant evidence relating to the issues to be determined will be set out under the headings, “Balance sheet”, “Contributions”, and “Section 75(2)”.
LEGAL PRINCIPLES
In Lotta & Lotta [2017] FamCA 50 Foster J stated:
281 The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford (2012) 247 CLR 108 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman (2014) FLC 93–592 and Scott & Danton [2014] FamCAFC 203.
282The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
283Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
284There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
285In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
286In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the wife seeks an order for adjustment of property and the husband contends that there should be no such adjustment.
287It is thus important to ascertain the present property and resources of the parties so as to facilitate a consideration of the s 79(2) question.
288In some circumstances it is not possible to determine whether it is just and equitable to make adjustment orders as to the parties’ present property rights without a consideration of s 79 (4) matters.
289Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).
290The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92–877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.
Balance sheet
A “joint balance sheet” was prepared by the parties and, following agreements during the final property hearing, it appeared as follows:
BALANCE SHEET Ownership Description Wife’s value Husband’s value Assets 1 J "B Street", Town C $156,000 $156,000 2 J "D Street", Town C $340,000 $340,000 3 W Livestock running NLIS (40 head) $30,000 $30,000 4 H E(1) Street, Town C $30,000 $30,000 5 H E(2) Street, Town C $176,000 $176,000 6 H Transport business $360,000 $360,000 7a H Bank account #...17 (business overdraft) E $3,000 E $3,000 7b H Bank account #...23 (NAB saver) $10,420 $10,420 8 H Motor Vehicle 1 $7,000 $7,000 9 H Motor Vehicle 2 $9,000 $9,000 10 H Motor Vehicle 3 $19,000 $19,000 11 H F Company Shares $5,000 $5,000 12 W Bank account #...23 $1,000 $1,000 13 W Motor Vehicle 4 $2,000 $2,000 14 H Furniture (tools, plant & machinery) $30,000 $30,000 Total $1,178,420 $1,178,420 Liabilities 15 J Home Loan #...80 – “B Street” $73,324 $73,324 16 J Home Loan #...75 – “D Street” $13,403 $13,403 17 H Home Loan #...79 (Mr G) $NIL $NIL 18 H Credit Card $11,300 $11,300 19 W HELP Debt $11,000 $11,000 20 J Transport business overdraft $210,000 $210,000 21 J "B Street" loan from parents $49,000 $49,000 22 H Tax liability $6,565 $6,565 Total $374,592 $374,592 Superannuation Member Name of Fund Type of Interest Respondent’s value Applicant’s value 23 W Super Fund 2 Accumulation $30,000 $30,000 24 W Super Fund 3 Accumulation $333 $333 25 H Super Fund 1 Accumulation $115,000 $115,000 Total $145,333 $145,333 Net Total Assets Total $949,161 $949,161
The husband submitted that the E Street, Town C properties should be quarantined as assets of the husband and removed from the balance sheet; he contended that the wife had made no relevant contribution to these properties. He made a similar submission in relation to the husband’s business. In the view of the Court, these assets should remain in the balance sheet as the wife has made indirect contributions towards them as discussed below under “Contributions”.
Accordingly, the parties’ net non-superannuation assets are $803,828. Their superannuation entitlements are $145,333. The total pool is thus $949,161.
Section 79(2) of the Act
The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of their property, and the fact that the continuance of the current legal ownership of their property would not afford them justice and equity.
Contributions
The relationship of the parties spanned the period from about 2002 until about early 2013 when they initially separated, and from about early 2014 when the parties recommenced their relationship until finally separating in about September 2016.
At cohabitation commencement, the husband owned the following property:
(a)E(1) Street, Town C (land). He had purchased this land in 1995 and paid $5,000. He funded the purchase from his savings together with a mortgage loan from NAB. He estimated that the mortgage loan would have reduced by the time the parties commenced cohabitation;
(b)E(2) Street, Town C (property with residence). He had purchased this property in 1996 and paid $25,000. He funded the purchase from his savings together with a mortgage from NAB. He estimated that the mortgage loan would have reduced by the time the parties commenced cohabitation;
(c)Motor Vehicle 1; the husband had purchased this item for $24,263; however, he had only paid a $5,000 deposit with the balance on finance with the dealer;
(d)Motor Vehicle 5;
(e)F Company shares;
(f)Plant/machinery. (The husband’s “furniture (tools plant & machinery)” in the balance sheet at $30,000 was mostly owned by the husband at cohabitation commencement);
(g)Superannuation.
In oral evidence, the husband stated that he did not know his net asset position at the start of the parties’ relationship.
At the commencement of cohabitation, the wife had a motor vehicle, 5 head of livestock, and a horse.
At cohabitation commencement, the husband was working as a self-employed tradesman and the wife was working as a labourer, earning about $400 per week.
The husband has maintained and paid all outgoings for the property he owned at cohabitation commencement.
The husband has paid off the mortgage loans relating to the 2 properties at E Street (see paragraph 69(c)(iii) of his affidavit filed 4 May 2023). However, it is unclear exactly when the husband paid these off. In paragraph 41 of his affidavit filed 14 September 2021 he stated, inter alia, that from separation in September 2016 until October 2018 he was paying the mortgage over E(2) Street. The Court infers that he had paid off the mortgage loan for E(1) Street at least prior to separation.
The parties purchased the property at D Street in 2004 in joint names for $110,000. $52,000 was borrowed from the NAB, and $68,000 was borrowed from the husband’s father.
The husband paid the mortgage repayments, outgoings, and utilities in relation to the D Street property during the parties’ relationship and post separation. He repaid the loan from his father in full.
In 2012 the parties purchased the property adjoining D Street called B Street in joint names for $185,000. $100,000 was borrowed from NAB and the husband’s parents lent the parties the total sum of $93,360.
The husband paid the mortgage repayments, loan repayments to his parents, outgoings, and utilities in relation to the B Street property during the parties’ relationship, and continued to exclusively pay such expenses up to November 2018. The wife, after November 2018, paid such expenses with the exception of the husband’s parent’s loan repayments.
The wife relocated from the B Street property with the children to her partner’s home at Town C in late 2020.
The wife, during the parties’ relationship, was always in paid employment except for the periods of time she took off when each of her children were born.
In about 2006, the wife started working part-time as a carer, two to three days per week. In 2010, when the child X was a newborn, the wife returned to work part-time as a carer and earned about $600 per week.
In about 2015, the wife became a supervisor; she earned about $250 per week initially but this built up over five years to about $800 per week; she was working initially 1 day per week but it built up to 3 days per week.
In early 2020 the wife resigned from her supervisor work as she had a young baby, and further, it was during a drought and the wife wanted to spend more time on the farm to maintain the livestock. In early 2023 the wife returned to work as an educator in Town H earning about an average of $500 per week; however, she is not paid during school holidays.
The Court finds on the balance of probabilities that the wife indirectly contributed to the husband’s financial ability to make the mortgage repayments, outgoings and utilities, for the D Street and B Street properties through her contributions as follows:
(a)Her primary care of the children, whilst acknowledging that the child Y lived with the husband from 2018 (when Mr J was aged 14) until his majority in 2018.
(b)Throughout the parties’ relationship the wife contributed her income towards the household and family; her wage was paid into her account and from this account all the children’s clothing, food and other essentials were purchased. She also used this account to purchase furniture or household items. Occasionally, if the husband did not have enough money in his account, the parties would use the wife’s account to pay the utilities, mortgage or tax bills.
(c)When the parties separated for about 12 months in 2013, the wife had to purchase some household items such as beds and a washing machine for the B Street property. The wife continued to use her income and savings towards the family and household expenses. After the parties reconciled in about late 2013 the wife continued to meet the day-to-day expenses for the children including school fees and the household from her own income.
(d)The husband paid no child support to the wife between 2016 and 2018. The husband commenced paying child support of about $1,250 per month to the wife since about 2018. Since separation, the wife’s income has otherwise met her household and family expenses which exceeded the husband’s child support contribution.
In relation to the 2 properties at E Street, Town C, registered in the name of the husband, and being properties acquired by him prior to commencement of cohabitation, it is clear that the wife made no direct financial contribution towards these properties. The Court has discussed above the issue of when the husband paid off the mortgage loans for these properties. The Court finds that the wife indirectly contributed to the husband’s financial ability to make the mortgage repayments, outgoings and utilities, for the properties at E Street through her contributions as set out in the preceding paragraph at (a)-(d). In this context, the Court also takes into account that the husband’s mortgage loans for these E Street properties appear to have been relatively modest by reference to their purchase price, the mortgage loans had been reduced by the time the parties commenced cohabitation, and they were paid off as discussed above.
The wife bred and sold livestock each year from her initial livestock. She sold around 6 head of livestock per year. The sale income was paid into the husband’s account and the husband had the sole benefit of those funds. During the relationship, the wife built up their stock levels. At final separation, there was about 60 head of livestock running on D Street. There is now about 40 head.
During the parties’ relationship, the wife did the majority of the farmwork at B Street and D Street including stock husbandry, organising share farming, checking fencing, veterinary work as required, fence maintenance. In an average week the wife spent about 20 hours per week in maintaining the stock and farm. Generally, the husband did not contribute to this work as he worked as a tradesman and transport worker (from 2011). The husband contributed financially to the purchase of new livestock yards.
The wife, post separation, continued to solely do all the work to maintain and manage the properties at B Street and D Street including buying and maintaining stock and maintenance work. There was a drought between about 2017 and 2020 and some stock had to be put down; no livestock were sold during this period. By drought end the wife had about 20 head of livestock.
In mid-2016, about a few months prior to separation, the husband acquired a transport business for the sum of $305,000. The business was vendor financed for the total purchase price. The husband has paid this vendor financed loan and all other expenses associated with the business since acquisition. The outstanding vendor financed loan is now about $210,000. The wife indirectly contributed to the husband’s financial ability to make the repayments on the vendor financed loan through her contributions as set out in paragraph 30(a)-(d) above.
The parties had two children during their relationship (Mr J born in 2004, and X born in 2010) and the wife was the primary carer of X and Mr J (but up until 2018 only in respect of Mr J) and she provided most of the parenting for these children. Since Christmas Day 2018 the husband has spent very limited time with the children. The child X commenced boarding school at K School in 2023 and is in Year 7. This parenting contribution by the wife was a significant contribution by her.
During the parties’ relationship the wife was primarily responsible for homemaker duties such as cooking and cleaning, and this contribution by the wife is taken into account.
The husband was the primary carer of Mr J from 2018 (when he was aged 14 years) until his majority in 2022, which the Court takes into account. The Court accepts the wife’s evidence relating to the husband’s relationship and interactions with her child L.
As to the parties’ superannuation assets, there is a significant absence of evidence as to the value of each party’s superannuation as at cohabitation commencement and as at separation in September 2016. The Court finds that each party probably indirectly contributed to the accumulation of the other party’s superannuation assets through their income earning activities and/or homemaker and parenting contributions.
The husband ultimately contended that his contributions should be assessed at 75 per cent.
The wife ultimately contended that her contributions should be assessed at 50 per cent.
Taking into account all the above discussed matters, and viewing the parties’ contributions holistically, the Court finds that the wife’s contributions should be assessed at 40 per cent and the husband’s at 60 per cent in respect to the parties’ non-superannuation and superannuation assets. These contribution findings result in a disparity of $189,832 in the husband’s favour.
Section 75(2) of the Act
There were children of the relationship and they are now aged 13 and 19 years. Besides the youngest child now aged 13 years, X, the wife also has the care of two young children from her new relationship with Mr M (aged about 42 years), aged 2 years and 4 years, as well as the child L, aged 9 years.
The husband pays child support for X of at least $1,250 per month.
There is no significant evidence that the wife and Mr M cannot financially support their 2 young children (N and O) and L.
The wife is aged 41. The husband is aged 51.
The husband is in good health. The wife is in good health.
The husband’s earnings are mainly from his transport business. His taxable income for year ended 30 June 2021 was $132,903. His taxable income for year ended 30 June 2022 was $127,212. His taxable income for year ended 30 June 2023 was $141,259.
The wife works currently as an employed part-time office worker, earning between $400 – $500 per week, and otherwise earns income from B Street and D Street farming operations. She stated in oral evidence that her gross annual income for the last financial year was about $30,000. She is qualified as an educator. She does not expect to be able to return to full-time employment for several years given the young age of her children. She stated in oral evidence that when her youngest children start school she will obtain employment. She stated that in a normal year her income from livestock sales was about $4,000–$5,000.
The Court would assess that the husband’s income earning capacity is significantly greater than the wife’s earning capacity. The husband will retain his business as an income earning asset.
The Court takes into account the husband’s superior superannuation entitlement, $115,000 compared to the wife’s $30,333.
The wife commenced a relationship with Mr M in about early 2018 and they commenced living together in about late 2020 on a property owned by Mr M and his mother. Children were born to this relationship and again they are aged 2 and 4 years.
Mr M owns a business from which he earns about $100,000 per year. He also operates a farming operation on the property that he occupies with the wife and children, and the annual income from this work fluctuates. The property he occupies is owned by himself and his mother. He owns substantial farming plant, equipment and machinery.
Mr M supports the wife’s decision for the child X and L to attend boarding school. He presently pays the school fees for X boarding at K School, and intends to continue to do so. The wife and her new partner Mr M have agreed that they will meet the remaining cost of the boarding school fees for all the children together.
The husband is unwilling to contribute to the private school fees at K School for the child X. Again, he has been paying child support of $1,250 per month. He was not informed that the wife decided to send X to board at K School. He stated that he was happy with K School and did not want X to change schools.The wife agreed, in oral evidence, that she was determined to send X to K School, without reference to the husband, and stated that her relationship with the husband was very poor. In recent years she has communicated with the husband through text messages. She stated that prior to enrolling X at K School, she was relying on Mr M contributing towards the payment of the school fees at K School and that she had determined that he would pay the majority of school fees there. The wife stated that the school fees at this school, without the child’s scholarship, was about $30,000 per annum (comprising tuition and boarding fees), and the majority of this sum was paid by Mr M. The wife stated that she contributed to the payment of extracurricular expenses for this child, including sporting fees.
Mr M stated that the wife and himself propose to pay the (private) school fees for X and L provided there is the financial capacity to do so.
The husband contended that there should be no adjustment in favour of the wife under s 75(2). The wife contended that there should be an adjustment in her favour under s 75(2).
Taking into account all the above discussed matters, there should be an adjustment in favour the wife of 2.5 per cent. This results in an adjusted contributions finding in favour of the husband of 57.5 per cent and 42.5 per cent to the wife, with the resulting disparity being $142,374 in the husband’s favour.
JUSTICE AND EQUITY
Pursuant to the Court’s adjusted contribution assessment, the husband should be left with assets representing, in value, 57.5 per cent of the net assets, being $545,767 (57.5 percent of $949,161).
The wife will be entitled to 42.5 per cent of the net assets, being $403,393 (42.5 per cent of $949,161).
Should the husband retain:
(a)E Street properties: $206,000
(b)Transport business: $360,000
(c)Bank accounts …17, …23: $13,420
(d)Motor Vehicle 1: $7,000
(e)Motor Vehicle 2: $9,000
(f)Motor Vehicle 3: $19,000
(g)F Company shares: $5,000
(h)Furniture (tools, plant and machinery): $30,000
(i)Superannuation: $115,000
(j)Total being: $764,420
Less debts:
(a)Credit card: $11,300
(b)Business overdraft: $210,000
(c)B Street loan from husband’s parents: $49,000
(d)Tax liability: $6,565
(e)Total being: $276,865
Leaving net: $487,555;
And the wife retain:
(a)B Street and D Street properties: $496,000
(b)Livestock (40 head): $30,000
(c)Bank account …23: $1,000
(d)Car: $2,000
(e)Superannuation: $30,333
(f)Total being: $559,333
Less debts:
(a)Home loans B Street and D Street: $86,727
(b)HELP debt: $11,000
(c)Total being: $97,727
Leaving net: $461,606;
Then the wife will need to pay the husband the sum of $58,213 ($461,606 less $403,393). The wife should be given 3 months to pay this sum to the husband, failing which the B Street property should be sold by private treaty.
If B Street is sold, then:
(a)The wife will retain her above net assets (but not the B Street property nor its related NAB debt) totalling $378,930, plus the net proceeds of sale from B Street after the husband is paid $58,213 (sale price being $156,000 less NAB debt of $73,324 less payment to husband of $58,213) being $24,463, a total of $403,393 (being 42.5 per cent of the net non-superannuation and superannuation assets).
(b)The husband will retain his above net assets: $487,555, plus $58,213 from the sale of the B Street property.
Accordingly, it can be seen from the above that the husband will, inter alia, retain the assets that he brought into the relationship, keep his business, and retain certain debt including the debt to his parents relating to the purchase of B Street. The wife will, inter alia, retain the B Street (unless it has to be sold; see above) and D Street properties, and the 40 head of livestock. Each party will retain their superannuation asset(s).
The Court is of the view that its proposed property adjustment orders will represent a just and equitable property settlement between the parties.
The Court makes Orders accordingly.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Deputy Associate:
Dated: 22 September 2023
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