CHRISTOU & CHRISTOU
[2020] FamCA 568
•14 August 2020
FAMILY COURT OF AUSTRALIA
| CHRISTOU & CHRISTOU | [2020] FamCA 568 |
| FAMILY LAW – PROPERTY SETTLEMENT – Application by husband and wife for alteration of property interests – marriage of 18 years – two children of the marriage – where wife made greater initial contributions – where both parties made financial contributions during cohabitation – assessment of contributions – where wife remains the primary carer of the children – adjustment made in favour of the wife in consideration of contributions and s 75(2) factors – parties agree to equalisation of superannuation entitlement interests – justice and equity – orders made. |
| Family Law Act 1975 (Cth) ss 75(2), 79(2), 79(4)(e) 90XT(1), 90XZA Family Law Rules 2004 (Cth) Family Law (Superannuation) Regulations 2001 (Cth) reg 12 Superannuation Industry (Supervision) Regulations 1994 (Cth) regs 7A.06(2), 7A.12 |
| APPLICANT: | Mr Christou |
| RESPONDENT: | Ms Christou |
| FILE NUMBER: | MLC | 2706 | of | 2018 |
| DATE DELIVERED: | 14 August 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Hartnett J |
| HEARING DATE: | 22 – 24 June 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Robinson |
| SOLICITOR FOR THE APPLICANT: | SPL Lawyers Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Dr Smith |
| SOLICITOR FOR THE RESPONDENT: | Barbayannis Lawyers Pty Ltd |
Orders
All previous property orders be discharged.
The Respondent wife (‘the wife’) pay to the Applicant husband (‘the husband’) the sum of $338,965.20 (‘the payment’) within 60 days of the date of these orders (‘the due date’) with such payment to be made to the husband’s solicitors.
Contemporaneously with the payment:-
(a)the husband do all such acts and things and sign all such documents as may be required to transfer to the wife at the expense of the wife all of his right, title and interest in the real property situate at and known as B Street Suburb C in the State of Victoria (‘the Suburb C property’);
(b)the wife discharge the mortgage secured over the Suburb C property;
(c)the wife indemnify the husband against all payments, liabilities, and instalments pursuant to any mortgage and all rates, taxes and like apportionable outgoings over the Suburb C property; and
(d)the wife have the sole right to occupy the Suburb C property.
In the event that the payment has not been made by the due date then the husband pay to the wife the sum of $881,034.80 (‘the alternate payment’) within 60 days of the due date (‘the alternate due date’) with such payment to be made to the wife’s solicitors.
Contemporaneously with the alternate payment:-
(a)the wife do all such acts and things and sign all such documents as may be required to transfer to the husband at the expense of the husband all of her right, title and interest in the Suburb C property;
(b)the husband discharge the mortgage secured over the Suburb C property;
(c)the husband indemnify the wife against all payments, liabilities, and instalments pursuant to any mortgage and all rates, taxes and like apportionable outgoings over the Suburb C property; and
(d)the husband have the sole right to occupy the Suburb C property.
In the event that the whole of the alternate payment has not been made by the alternate due date then the parties shall sign all documents and do all things necessary to forthwith place the Suburb C property on the market for sale altogether out of the Court (‘the Suburb C property sale’) and upon completion of the sale, the proceeds of the sale be applied as follows:-
(a)first, to pay all costs, commissions and expenses of the Suburb C property sale;
(b)second, to discharge the mortgage and any other encumbrance affecting the Suburb C property; and
(c)the balance to the parties in the following shares:-
(i)60 percent to the wife, such payment to be made to the wife’s solicitors; and
(ii)40 percent to the husband, such payment to be made to the husband’s solicitors; and
(d)contemporaneously with order 6(c) herein (and to be deducted from the husband’s share at order 6(c)(ii) herein), the husband pay the sum of $149,034.80 to the wife.
By consent
There be liberty to apply to the parties with respect to the terms and conditions of the Suburb C property sale.
Pending the payment, the alternate payment and/or the Suburb C property sale:-
(a)the wife have the sole right to occupy the Suburb C Property and during such right of occupation the wife pay all instalments pursuant to any mortgage and all rates, taxes and like apportionable outgoings over the Suburb C property as and when they fall due;
(b)the parties hold their respective interests in the Suburb C property upon trust pursuant to these orders; and
(c)save to give effect to these orders, neither party encumber the Suburb C property without the consent in writing of the other party.
The husband be entitled to and indemnify the wife with respect to any liability related to:-
(a)all monies currently held in any bank account in his name;
(b)motor vehicles registered in his sole name (‘his motor vehicles’), being:-
(i)his Motor Vehicle 1 unregistered;
(ii)his Motor Vehicle 2 registration no. …;
(iii)his Motor Vehicle 3 unregistered;
(iv)his Motor Vehicle 4 unregistered;
(v)his Motor Vehicle 5 unregistered;
(vi)his Motor Vehicle 6 unregistered;
(vii)his Motor Vehicle 7 unregistered;
(viii)his Motor Vehicle 8 unregistered;
(ix)his Motor Vehicle 9 registration unknown;
(x)his Motor Vehicle 10 unregistered; and
(xi)his Motor Vehicle 11 unregistered;
(c)his motor vehicle parts located throughout and underneath the Suburb C property (‘his motor vehicle parts’) comprising of:-
(i)his old motor vehicle parts; and
(ii)his new motor vehicle parts;
(d)his D Company shares;
(e)monies received by him pursuant to interim property orders; and
(f)any other property in his name.
The wife make available to the husband at such time and place as agreed between the parties and with such other arrangements as agreed between the parties, the following chattels of which he shall retain possession and sole ownership:-
(a)his long black DVD cabinet with glass top;
(b)his drum kit;
(c)his old VHS collection videos he acquired prior to the parties’ marriage;
(d)his old LP records including his father’s records;
(e)his antique turntable lent to him by his father;
(f)his old music tapes & VHS tapes he had prior to the parties’ marriage;
(g)his wooden coffee table;
(h)his personalised number plates registration … coloured purple and registered in his name;
(i)his personalised number plates registration … coloured black & white and registered in his name;
(j)his personalised number plates registration … coloured black & white and registered in his name;
(k)his copies of photographs from photo album also located on his google drive;
(l)his father’s antique display cabinet;
(m)his father’s antique desk including the glass top, wooden tray and its contents;
(n)his brother’s gold TEAC CD player;
(o)his B&W 801 speakers;
(p)his valve amplifier;
(q)his dual turntable;
(r)his display cabinet containing, and including, his sports memorabilia;
(s)his antique upright cupboard with diamond shape mirror;
(t)his mountain bike;
(u)any of his clothing remaining at the Suburb C property;
(v)his sentimental items from his childhood, including old school books, memorabilia and religious icon from his childhood home;
(w)any and all of his personal paperwork from the steel filling cabinet in the study of the Suburb C property; and
(x)any and all of his tools from the garage, including the compressor and lawn mowers and their storage units and his motor vehicle parts as already agreed between the parties.
By the Court
In the event the wife locates the husband’s jewellery at the Suburb C property, within 14 days thereafter the wife shall provide to the husband such jewellery as she has located.
By Consent
The wife be entitled to and indemnify the husband with respect to any liability related to:-
(a)all monies currently in any bank account in her name;
(b)the property situate at and known as E Street, Suburb F in the State of Victoria;
(c)her one third share of the ANZ term deposit;
(d)her Motor Vehicle 12 registration … (‘the Motor Vehicle 12’);
(e)monies received by her pursuant to interim property orders; and
(f)any other property in her name.
The parties do all things and sign all documents necessary to transfer to the husband at the expense of the husband all of the wife’s right, title and interest in the Motor Vehicle 13 registration … (‘the Motor Vehicle 13’).
In the event the wife obtains sole proprietorship of the Suburb C property pursuant to order 3 herein, then within 21 days of the payment, the husband do all things to cause the removal of his motor vehicles and his motor vehicle parts (as described in order 9 herein) from the Suburb C property at such time and on such terms as agreed between the parties save the husband shall not be permitted to enter within the Suburb C property which excludes the garage on the property.
In the event the Suburb C property is to be sold pursuant to order 6 herein, then within 21 days of the alternate due date, the husband do all acts and things to cause the removal of his motor vehicles and his motor vehicle parts (as described in order 9 herein) from the Suburb C property at such time and on such terms as agreed between the parties save the husband shall not be permitted to enter within the Suburb C property which excludes the garage on the property.
The parties do all acts and things and sign all documents necessary for the balance of the proceeds of sale from the property situate at and known as G Street, Suburb H in the State of Victoria (‘the Suburb H property’) currently held on trust by the husband’s solicitors SPL Lawyers Pty Ltd (‘the husband’s solicitors’) to be released to the husband.
The parties do all acts and things and sign all documents necessary to transfer to the wife 60 percent respectively of each of the delisted shares the husband owns in the J Company, K Company and L Company.
The wife indemnify the husband against any other liability in her name, including her respective Capital Gains Tax liability and Centrelink liability.
The husband indemnify the wife against any other liability in his name including his respective Capital Gains Tax liability, and loan related to his D Company shares.
Orders 21 to 31 herein inclusive of these orders are binding on M Pty Ltd (‘the trustee’) as trustee of the Super Fund 1 (‘Super Fund 1’).
In accordance with s 90XT(1)(a) of the Family Law Act 1975 (Cth) (‘the Act’):-
(a)whenever the trustee makes a splittable payment from the interest held by the husband in Super Fund 1 member number … (‘the superannuation interest’) the trustee shall pay to the wife an amount which is calculated using the base amount of $44,000; and
(b)that there be a corresponding reduction in the entitlement that the husband would have had in the Super Fund 1 but for these orders.
Order 21 herein has effect from the operative time and the operative time for the purposes of these orders is four business days after the date of service of these sealed final orders on the trustee.
The trustee and the parties in accordance with the obligations set out in the Act; the Family Law (Superannuation) Regulations 2001 (Cth) (‘the Family Law Superannuation Regulations’); the Superannuation Industry (Supervision) Act1993 (Cth); and the Superannuation Industry (Supervision)Regulations 1994 (Cth) (‘the Superannuation Industry Regulations’) shall do all such acts and things and sign all such documents as may be necessary to calculate the wife’s entitlement created by order 21 and make the payment in accordance with these orders.
The trustee and the parties shall do all such acts and things and sign all such documents as may be necessary, including but not limited to, exercising the request pursuant to reg 7A.06(2) of the Superannuation Industry Regulations for the rollover or transfer of the transferable benefits out of the husband’s interest in the superannuation fund to the superannuation fund member number 38146646 or such other superannuation fund or member account as may be nominated by the wife in accordance with reg 7A.12 of the Superannuation Industry Regulations.
Until the happening of any of:-
(a)the establishment of a separate account in the name of the wife in Super Fund 1; or
(b)the transfer or ‘rolling over’ into another superannuation fund or superannuation account of the payment split created by order 21 herein; or
(c)the wife satisfies the condition of release and is paid the payment of the split which was created by order 21 herein; or
(d)the husband executing a waiver of rights within the meaning of s 90XZA of the Act in relation to the payment split created by order 21 herein;
the husband be and is hereby restrained by himself, his servants or agents from executing a death benefit nomination in favour of any person or doing any other act or thing that would render any part of his interest in the superannuation fund ‘a non-splittable payment’ within the meaning of reg 12 of the Family Law Superannuation Regulations.
A copy of these orders be served forthwith upon the trustee.
There be liberty to apply to each party and the trustee in relation to the implementation of the orders affecting the superannuation interest.
Pursuant to s 106A of the Act:-
(a)a Registrar of the Court be appointed to execute all documents in the name of the party in default and do all acts and things necessary to give validity and operation to these orders;
(b)the defaulting party is ordered to pay all reasonable costs incurred by the other party for the purposes of enforcing this order; and
(c)for the purposes of this order, an affidavit setting out the defaulting party’s failure to comply with the orders shall be sufficient evidence of default.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:-
(a)each party be solely entitled to the exclusion of the other to all superannuation, work related entitlements and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders and the husband is to retain in his sole possession and ownership all his motor vehicles and his motor vehicle parts;
(b)insurance policies remain the sole property of the owner named thereon;
(c)any joint tenancy is hereby severed; and
(d)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.
These orders shall be binding upon the heirs, executors and assigns of the parties.
Otherwise, all extant applications be dismissed and the matter removed from the active list of cases.
Notation
A.Pursuant to s 81 of the Act these orders shall as far as practicable finally determine the financial relationships between the parties and avoid further proceedings between them.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Christou & Christou has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
CORRIGENDUM
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 2706 of 2018
| Mr Christou |
Applicant
And
| Ms Christou |
Respondent
CORAM: Hartnett J
DATE OF ORDERS: 14 August 2020
WHERE MADE: Melbourne
CORRIGENDUM 24 August 2020
The Reasons for Judgment delivered on 14 August 2020 are amended by the deletion of the words ‘to six’ and ‘to seven’ in paragraph two and the insertion of the words ‘(save there will be a sixth night in the event of a non-school attendance day)’ and ‘(save there will be a seventh night in the event of a non-school attendance day)’ as attached.
I certify that the preceding one (1) paragraph is a true copy of the Corrigendum of the Reasons for Judgment of the Honourable Justice Hartnett herein.
Associate:
Date: 24 August 2020
FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 2706 of 2018
| Mr Christou |
Applicant
And
| Ms Christou |
Respondent
REASONS FOR JUDGMENT
Preliminary
This proceeding concerned competing applications by the parties for both final parenting and property orders. The parenting orders sought by each of the parties were with respect to their children X born in 2010 and Y born in 2013 (‘the children’).[1] X is now aged nine years and Y is now aged seven years. In respect of the parenting orders application, the Court made orders appointing an Independent Children’s Lawyer on 3 July 2018. [2]
[1] Further Amended Initiating Application filed by the Applicant husband on 21 May 2020, page 11.
[2] Order made by Senior Registrar Fitzgibbon on 3 July 2018, orders 10-12.
The final hearing commenced on 22 June 2020. On 23 June 2020, the Court made final parenting orders by consent of the parties. Those orders provide for the parties to have equal shared parental responsibility of the children; for the children to live with the Respondent wife (‘the wife’) and spend time with the Applicant husband (‘the husband’) during school terms for five nights each fortnight (save there will be a sixth night in the event of a non-school attendance day),[3] and then after a period of three years, six nights each fortnight (save there will be a seventh night in the event of a non-school attendance day),[4] and during the school holidays for one half of such holidays, together with other special occasion times.
[3] Final (parenting) order made by Justice Hartnett on 23 June 2020, ‘Exhibit A’, order (3)(a) by consent and order (3)(c) by consent.
[4] Ibid.
The competing property applications of the parties remained for judicial determination, and these reasons for judgment go to that part of each of the applications remaining before the Court. Essentially, the husband sought that there be a division of the legal and equitable interests of the parties in their asset pool as agreed by them in an apportionment of 52.5 percent to the wife and 47.5 percent to the husband. The wife sought there be a division of the legal and equitable interests of the parties in an apportionment of 65 percent to the wife and 35 percent to the husband. Otherwise each of the parties sought there be an equalisation of their superannuation entitlement interests.
The husband was born in 1975.[5] He is now aged 44 years. He works as a project manager at D Company and has been so employed for approximately 20 years.[6] He is in good health.[7]
[5] Outline of case document filed by the husband on 18 June 2020, page 2.
[6] Affidavit affirmed by Mr Christou on 21 May 2020, paragraph 3.
[7] Ibid paragraph 4.
The wife was born in 1975.[8] She is now aged 44 years. She works on a casual basis, being two days each week during school hours,[9] as an administrative support officer at N Pty Ltd. She has been so employed for approximately two years and six months.[10] She is in good health.[11]
[8] Outline of case document filed by the husband on 18 June 2020, page 2.
[9] Affidavit sworn by Ms Christou on 11 June 2020, paragraph 71.
[10] Financial Statement sworn by Ms Christou on 11 June 2020, page 2.
[11] Affidavit sworn by Ms Christou on 11 June 2020, paragraph 31.
The parties commenced their cohabitation upon their marriage on … 1999.[12] They separated on a final basis on 14 December 2017, when the husband was required to depart the former matrimonial home as a result of an intervention order obtained by the wife.[13] The husband thereafter consented to the making of a final intervention order which has since expired.[14] The parties’ period of cohabitation was thus approximately 18 years and three months.
[12] Outline of case document filed by the Applicant husband on 18 June 2020, page 2.
[13] Ibid page 3.
[14] Affidavit affirmed by Mr Christou on 21 May 2020, paragraph 39.
Material Relied upon
The husband relied upon the following material:-
a)a Further Amended Initiating Application filed on 21 May 2020;
b)a Financial Statement affirmed on 21 May 2020;
c)affidavits affirmed on 21 May 2020 and 18 June 2020;
d)annexures sent to the Court on 24 June 2020 which related to the affidavit affirmed on 21 May 2020;
e)an outline of case document filed on 18 June 2020; and
f)a court book sent to the Court on 19 June 2020.
The wife relied upon the following material:-
a)a Further Amended Response filed on 11 June 2020;
b)an Updated Financial Statement sworn on 11 June 2020;
c)an affidavit sworn on 11 June 2020;
d)annexures sent to the Court on 11 June 2020 which related to the affidavit sworn on 11 June 2020; and
e)an outline of case document filed on 16 June 2020.
In addition, the parties jointly relied on the following documents:-
a)an agreed balance sheet as to all property of the parties or either of them excluding chattels; and
b)a list of chattels of the parties or either of them, referred to during the cross-examination of the wife.
Further, the parties jointly submitted a minute of proposed property orders to the Court on 30 June 2020. That minute omitted the quantification in money or percentage terms of a division of the asset pool as between the parties. Relevantly, the proposed orders provided that the husband retain the wife’s Motor Vehicle 13 registration … and the entirety of the funds remaining from the sale of the Suburb H property being $8,975 which are currently held in the trust account of the husband’s solicitors.[15] These items of property appear in the table of assets and liabilities hereafter as, respectively, owned by the wife and by the parties jointly.
[15] Financial Statement affirmed by Mr Christou on 21 May 2020, page 10; Updated Financial Statement sworn by Ms Christou on 11 June 2020, page 10; Affidavit sworn by Ms Christou on 11 June 2020, paragraph 73(c).
Asset pool at trial
The assets and liabilities of the parties at trial were as follows:-[16]
[16] Agreed balance sheet sent by both parties jointly to the Court on 23 June 2020.
REAL ESTATE
Property
Ownership
Value
B Street Suburb C in the State of Victoria (‘the Suburb C property’) Joint $1,220,000 One fifth share (as described in paragraph 12 of these reasons) in E Street Suburb F in the State of Victoria (‘the E Street property’) Wife $188,000[17] SUB TOTAL
$1,408,000
NON-REAL ESTATE
Property
Ownership
Value ($)
Funds remaining in the trust account of SPL Lawyers (‘the husband’s solicitors’) from the sale of G Street Suburb H in the State of Victoria (‘the Suburb H property’) Joint E$8,975[18] Motor Vehicle 1 unregistered Husband E$40,000[19] Motor Vehicle 2 registration no. … Husband E$2,500[20] Motor Vehicle 3 unregistered Husband E$20,000[21] Motor Vehicle 4 unregistered Husband E$25,000[22] Motor Vehicle 5 unregistered Husband E$27,000[23] Motor Vehicle 6 unregistered
Husband E$27,000[24] Motor Vehicle 7 unregistered Husband E$40,000[25] Motor Vehicle 8 unregistered Husband E$20,000[26] Motor Vehicle 9 registration unknown Husband E$18,000[27] Motor Vehicle 10 unregistered Husband E$15,000[28] Motor Vehicle 11 unregistered Husband E$12,000[29] Motor Vehicle 13 registration … Wife $8,500 Motor Vehicle 12 registration … Wife $5,000[30] Old and new motor vehicle parts from the business P Company Husband $100,000 Equity in shares held with D Company[31] Husband value of shares $3,200
less loan ($1,320)
$1,880[32]Funds retained by the husband pursuant to sale of shares on 1 October 2018 and 31 October 2018 Husband $1,700 De-listed shares from the companies no longer trading, being J Company, K Company and L Company Husband Nil or Nominal Value[33] Term Deposit Wife $34,694 SUB TOTAL
E$407,249
[17] Updated Financial Statement sworn by Ms Christou on 11 June 2020, page 6.
[18] Financial Statement affirmed by Mr Christou on 21 May 2020, page 10; Updated Financial Statement sworn by Ms Christou on 11 June 2020, page 10; Affidavit sworn by Ms Christou on 11 June 2020, paragraph 73(c).
[19] Financial Statement affirmed by Mr Christou on 21 May 2020, page 14.
[20] Ibid.
[21] Ibid page 15.
[22] Ibid page 14.
[23] Ibid.
[24] Ibid.
[25] Ibid.
[26] Ibid.
[27] Ibid page 15.
[28] Ibid.
[29] Ibid.
[30] Updated Financial Statement sworn by Ms Christou on 11 June 2020, page 7.
[31] Affidavit affirmed by Mr Christou on 21 May 2020, paragraph 215 and Annexure ‘A-24’.
[32] Affidavit sworn by Ms Christou on 11 June 2020, paragraph 73(o).
[33] Affidavit affirmed by Mr Christou on 21 May 2020, paragraph 212 and Annexure ‘A-23’.
FUNDS DISPERSED POST-SEPARATION TO BE INCLUDED IN THE ASSET POOL AVAILABLE FOR DIVISION BETWEEN THE PARTIES
Property
Ownership
Value
Legal fees paid from shares registered in the husband’s name[34] Husband $49,510 Part property payment from the agreement for the sale of shares registered in the husband’s name in October 2018 Husband $10,000 Part property payment from the sale of shares registered in the husband’s name pursuant to the Court orders made by consent on 1 February 2019[35] Husband $30,282 Legal fees paid[36] Wife $36,287 Part property payment from the agreement for the sale of shares registered in the husband’s name in October 2018 Wife $10,000 Part property payment from the sale of shares registered in the husband’s name pursuant to the Court orders made by consent on 1 February 2019[37] Wife $30,282 SUB TOTAL
$166,361
[34] Ibid paragraph 187.
[35] Ibid paragraph 212(c).
[36] Agreed balance sheet sent by the parties jointly to the Court on 23 June 2020.
[37] Affidavit affirmed by Mr Christou on 21 May 2020, paragraph 212(b).
LIABILITIES[38]
Property
Ownership
Value
Capital Gains Tax (‘CGT’) in relation to the sale of G Street, Suburb H in the State of Victoria (‘the Suburb H property’) and the sale of the share portfolio Husband ($26,055) Capital Gains Tax (‘CGT’) in relation to the sale of G Street, Suburb H in the State of Victoria (‘the Suburb H property’) and the sale of the share portfolio Wife ($25,912) Centrelink debt attributable to the business P Company Wife ($4,000)[39] SUB TOTAL
($55,967)
TOTAL NET ASSETS:
E$1,925,643
[38] Ibid paragraph 216.
[39] Agreed balance sheet sent by both parties jointly to the Court on 23 June 2020.
SUPERANNUATION
Property
Ownership
Value
Interest in Super Fund 1 Husband $183,867[40] Interest in Super Fund 1 Wife $38,832[41] Interest in Super Fund 2 Wife $28,210[42] Interest in Super Fund 3 Wife $29,718[43] SUB TOTAL
$280,627
TOTAL SUPERANNUATION:
$280,627
[40] Financial Statement affirmed by Mr Christou on 21 May 2020, page 8.
[41] Updated Financial Statement sworn by Ms Christou on 11 June 2020, page 8.
[42] Ibid.
[43] Ibid.
Note: The parties agree that the shareholding comprising the de-listed shares shall be divided in the same percentage adjustment as that determined by the Court for the division of the asset pool.
Contributions at commencement of cohabitation
In 1998 and prior to the relationship of the parties, the wife’s parents, Mr Q and Ms Q (‘the wife’s parents’) gifted to her what was to become a one fifth share in the real property situate at and known as E Street Suburb F in the State of Victoria (‘the E Street property’). The registration of that transfer of title did not occur until August 2003.[44] In 1998, the wife’s two sisters, Ms S (née …) and Ms T, were also gifted a one fifth share in the E Street property.[45] This was formalised by way of a contract of sale dated 1 August 1998.[46] The current legal ownership of the E Street property is best described as:-
… the Certificate of Title dated 29 October 2018 which shows [the wife’s parents] to be the Joint Proprietors as to 2 of a total of 5 equal undivided shares, Ms S to be the Sole Proprietor as to 1 of a total of 5 equal undivided shares, Ms Christou to be the Sole Proprietor as to 1 of a total of 5 equal undivided shares and Ms T to be the Sole Proprietor as to 1 of a total of 5 equal undivided shares as Tenants in Common.[47]
The value of the wife’s ownership of a one fifth share of the E Street property in August 2003 was $26,000.[48] That value is now $188,000. None of the increase in value of this asset is attributable to any direct and/or indirect contributions of the parties. The rental receipts paid for all maintenance tasks and outgoings, and there were monies left over after the payment of these expenses. At trial, the monies in the bank account of the wife and her two sisters were allocated as to one third to the wife in the sum of $34,694.[49] That sum was then available for division between the parties.
[44] Affidavit affirmed by Mr Christou on 21 May 2020, page 8.
[45] Affidavit sworn by Ms Christou on 11 June 2020, paragraph 64.
[46] Ibid.
[47] Affidavit of expert witness affirmed by Mr AA on 2 June 2020, Appendix “TG-3” page 5.
[48] Affidavit sworn by Ms Christou on 11 June 2020, paragraph 64.
[49] Ibid paragraph 94(c).
Prior to their marriage and in June 1999, the parties purchased the property situate at and known as U Street, Suburb F in the State of Victoria (‘the U Street property’) for approximately $196,000. [50] Settlement of the purchase took place days prior to the parties’ wedding.[51] The wife had, prior to the purchase, approximately $40,000 in savings.[52] She contributed the entirety of these funds towards the purchase in addition to a sum of $7,500 which her parents contributed towards the purchase. Thus the wife’s direct financial contribution towards the purchase of the U Street property was $47,500.[53] The husband had, prior to the purchase, approximately $38,000 in savings, $35,000 of which had been gifted to him by his parents.[54] He applied, as a direct financial contribution, the sum of $38,000 towards the purchase of the U Street property.
[50] Ibid paragraph 61.
[51] Ibid.
[52] Affidavit affirmed by Mr Christou on 21 May 2020, paragraph 175.
[53] Affidavit sworn by Ms Christou on 11 June 2020, paragraph 62.
[54] Affidavit affirmed by Mr Christou on 21 May 2020, paragraph 174.
The husband had additionally at the commencement of the parties’ cohabitation, two motor vehicles which he claimed had values of $20,000 and $5,000. [55] No valuation evidence as to these motor vehicles was before the Court.
[55] Ibid.
At the commencement of cohabitation, the wife was working full-time at V Company as a business clerk.[56] She left V Company in 2000 and immediately began working full-time for D Company in the business centre, where she remained until 2003.[57]
[56] Affidavit sworn by Ms Christou on 11 June 2020, paragraph 66.
[57] Affidavit sworn by Ms Christou on 11 June 2020, paragraph 66.
At commencement of cohabitation, and indeed throughout the parties’ relationship, the husband has been employed with D Company.[58]
[58] Ibid paragraph 266.
Contributions during cohabitation
In November 2002, the parties purchased an investment property situate at and known as G Street, Suburb H in the State of Victoria (‘the Suburb H property’) for the sum of $160,100.[59] The purchase of the Suburb H property was financed using the U Street property as security, the total amount borrowed being $168,000 to cover the stamp duty costs.[60]
[59] Affidavit affirmed by Mr Christou on 21 May 2020, paragraph 177.
[60] Ibid.
In 2003, the wife was made redundant by her employer, D Company, and received a redundancy payment of $28,000.[61] She and the husband used these funds for the parties’ joint benefit.[62] Upon leaving D Company, the wife continued to work full-time for small businesses.[63] In 2005, she commenced working for W Company, which was later sold to Z Company. The wife continued to work for Z Company until about September 2010 when she took maternity leave until August 2011.[64] She returned to Z Company in August 2011 working full-time as an account manager. Whilst employed as a senior finance manager for Z Company, the wife had a taxable income of $94,643.[65]
[61] Affidavit sworn by Ms Christou on 11 June 2020, paragraph 66.
[62] Ibid.
[63] Ibid paragraph 67.
[64] Ibid paragraph 68.
[65] Affidavit affirmed by Mr Christou on 21 May 2020, paragraph 227.
Throughout the relationship of the parties, the husband worked at D Company in his present capacity. At the time of the wife’s position being made redundant at Z Company (as referred to in paragraph 23 hereafter), the husband was in receipt of income of approximately $70,000 gross per annum. Additionally in some years he received, by way of a bonus, a small D Company shareholding.
The husband began trading shares in or around 2004.[66] Such share trading was moderately successful with any profits taken being applied by the husband for the benefit of the family.
[66] Ibid paragraph 180.
In 2004, the parties sold the U Street property for $341,600.[67] In October 2004, following the sale of the U Street property, the parties purchased the property situate at and known as B Street, Suburb C in the State of Victoria (‘the Suburb C property’) for $478,000.[68]
[67] Ibid paragraph 179.
[68] Ibid; Outline of case document filed by the Applicant husband on 18 June 2020, page 2.
In 2009, the husband and his father assisted a builder in constructing a two-storey garage at the rear of the Suburb C property, fitting the building out so as to make the upstairs area a separate living room for the parties and/or their children. It became instead a storage area for the husband’s spare car parts and for other items belonging to the parties. The wife now wishes to use that upstairs area for the children’s enjoyment, mainly the watching of movies and in order to facilitate that to retain some of the chattels which were sought by the husband in the proceeding. The Court indicated those chattels should be retained by the wife and the parties now consent to an order to that effect.
The wife underwent a caesarean section for the birth of each of the children.[69] At those times, being in 2010 and 2013, the husband took three months’ leave from work to help care for each of the children, as the wife was physically restricted due to the caesarean.[70] In August 2011, and in between the births of X and Y, the wife returned to work full-time. X was cared for variously by the husband; the maternal grandparents; and those in the child care centre which he attended for a time.[71] From April 2012 X ceased attending day care and spent those two days each week with the husband’s sister, for which she was paid.[72] The wife was made redundant by her employer, Z Company, in December 2012 receiving a further redundancy payment together with a lump sum leave payment totalling approximately $80,000 which she applied to the expenses of the family.[73] She thereafter assumed the primary caregiver role for X, and then both children, following the birth of Y.[74]
[69] Affidavit affirmed by Mr Christou on 21 May 2020, paragraph 16.
[70] Ibid.
[71] Ibid paragraph 8.
[72] Ibid paragraph 9.
[73] Affidavit sworn by Ms Christou on 11 June 2020, paragraph 69.
[74] Affidavit affirmed by Mr Christou on 21 May 2020, paragraph 10.
The wife remained the primary carer of the children and was largely responsible for the performance of home duties tasks in the household. The husband assisted in the care of the children and in the carrying out of various household tasks when his full-time employment allowed albeit that during those times when he was absent from his employment, he was also engaged in his share trading activities and in his business of buying and selling motor vehicles, which included the selling of parts.
In 2003, the wife commenced receiving rental income from her interest in the E Street property. That rental income was placed in an ANZ Term Deposit account in the name of the wife and her two sisters. Such monies remained in that account to accumulate from time to time, and to then be withdrawn by the wife’s parents, to use such funds and in such manner as the wife’s parents determined. That expenditure was entirely applied to the needs of the wife’s parents. The E Street property was unencumbered and thus the rental receipts were subject to taxation payments in the hands of the wife in the period between 2003 and 2012 whereupon the wife ceased to be engaged in employment outside the home until 2017. Additional taxation payments were required to be made by the wife as a result of her receipt of the rental income. Those taxation monies due were paid from the husband’s income during the course of the marriage. The sums were not a significant amount but were nevertheless monies applied for the benefit of the wife’s parents in those years. There remained the sum of $34,694 at trial in the ANZ Term Deposit account. By agreement between the parties, this sum was included in the asset pool for division between them.
In or around 2014, the parties started the business P Company which the husband operated.[75] The wife was registered as the sole owner and assisted in the operation of the business.[76] The business made a modest income and as it was income received in the wife’s name it subsequently impacted the Centrelink receipts of the wife (which the wife received for the family’s benefit) such that those receipts were recalculated and monies remain owing by the wife to Centrelink as detailed in paragraph 36 hereafter.
[75] Affidavit affirmed by Mr Christou on 21 May 2020, paragraph 183.
[76] Ibid paragraph 220.
From September 2017 until December 2017, the wife resumed employment on a part-time basis, working one day each week in a café.[77] Additionally, in November 2017, she commenced casual work as an administrative support officer with her current employer.[78] Presently, she works two days each week in this role.[79] Her hours are those of the children’s school hours such that she is always available to care for the children.[80]
[77] Affidavit sworn by Ms Christou on 11 June 2020, paragraph 70.
[78] Ibid paragraph 71.
[79] Ibid.
[80] Ibid.
Post-separation
Shortly prior to separation and on 12 December 2017, the wife had withdrawn the sum of $65,000 from the parties’ Commonwealth Bank of Australia home loan account being available funds in the redraw facility.[81] The wife deposited these funds into her ANZ Access Advantage account. On 8 February 2018, she then transferred the sum of $50,000 into a Commonwealth Bank of Australia Everyday Offset account in her name to ensure that the home loan was being offset with those monies.[82] That sum of $50,000 was applied to the parties’ mortgage. The sum of $15,000 remained in the wife’s ANZ bank account and was applied by her to the living expenses of she and the children in the period following separation when she was not in receipt of any child support sum from the husband nor, initially, any contribution from the husband in respect of the repayment of the parties’ mortgages and other associated costs for the parties’ properties.[83]
[81] Ibid paragraph 81 and Annexure ‘AC9’, page 96; Affidavit affirmed by Mr Christou on 21 May 2020, paragraph 184 and Annexure ‘A-19’.
[82] Affidavit sworn by Ms Christou on 11 June 2020, Annexure ‘R9’, page 93.
[83] Ibid Annexure ‘R9’, pages 99 to 149.
Since separation in December 2017, the wife has continued in occupation of the Suburb C property, being the former matrimonial home, together with the children. She has received regular payments of child support from the husband, save for some eight months following separation when the husband was ill as a consequence of the separation. The regular payments were in the amount of $234 each week until 1 September 2020,[84] and were a sum arrived at by virtue of a departure order being made on the application of the wife before Her Honour Justice Bennett,[85] and thereafter in the sum of $141 per week. Additionally, the husband agreed on 1 February 2019 to interim orders to sell both the Suburb H property and all shares in his name, and apply the sale proceeds to, amongst other things, reducing the mortgage over the Suburb C property.[86] On 22 February 2019, and following the sale of the share portfolio pursuant to the orders, $60,565.25 was applied to the mortgage over the Suburb C property.[87] On 4 October 2019, and following the sale of the Suburb H property pursuant to the orders, $235,817.20 was applied to the mortgage over the Suburb C property.[88] Additionally, the husband made contributions to the repayment of the parties’ mortgages in a sum of $11,500 as asserted by him over an approximately two year period.[89] The husband then applied to the Child Support Agency to have the mortgage repayments made by him credited to his child support liability as a non-agency payment.[90] The wife objected to that application and the Child Support Agency made no alteration to the child support assessed amount on the basis of the husband’s application. The husband then appealed the Child Support Agency’s decision to the Administrative Appeals Tribunal. He was unsuccessful in that application.
[84] Affidavit affirmed by Mr Christou on 21 May 2020, paragraph 171.
[85] Order made by Justice Bennett on 1 March 2019, order 1.
[86] Ibid order 7 by consent, order 9 by consent and order 10 by consent.
[87] Affidavit affirmed by Mr Christou on 21 May 2020, paragraph 56(b); Affidavit affirmed by Mr Christou on 21 May 2020, paragraph 212.
[88] Affidavit affirmed by Mr Christou on 21 May 2020, paragraph 56(b); Affidavit affirmed by Mr Christou on 21 May 2020, paragraph 186.
[89] Outline of case document filed by the husband on 18 June 2020, page 3.
[90] Affidavit affirmed by Mr Christou on 21 May 2020, paragraph 163.
Obviously, the wife struggled in the first eight months following separation in her support of the children and has struggled since the child support payments have reduced as described in the preceding paragraph. The husband’s evidence as to this matter is that he is unable to afford more, and that when he purchases another home in which to reside, his finances will be even further restricted. He is very clear that if he determines he cannot afford to pay anything more than the child support assessed amount, then he will not do so, regardless of the children’s circumstances. Further, on the evidence, it is clear that he will act if he considers it necessary, to reduce any assessment made against him as he has done in the past.
The wife’s average weekly income until September 2020 is $1,121 weekly, which comprises of a payment under the JobKeeper Payment Scheme from the Australian Taxation Office (‘the JobKeeper payment’) of $750; a payment from Centrelink under the Family Tax Part A & Part B, Single Parent Pension and Carer’s Allowance scheme (‘the Centrelink payment’) of $230; and child support from the husband of $141.[91] The wife does not actually receive the $12 per week income from ANZ Term Deposit held jointly with her sisters, as outlined in her Financial Statement, because it is re-invested, and applied, from time to time, for the benefit of her parents.[92]
[91] Updated Financial Statement sworn by Ms Christou on 11 June 2020, page 3.
[92] Ibid page 10.
Following the cessation of the JobKeeper payment to the wife her average weekly income will reduce to $253 per week.[93] Additionally, the Centrelink payment she receives will increase by $212 to a total of $442 per week.[94] She will continue to receive $141 in child support from the husband.[95] This totals an average weekly income of $836. Income as derived from her own efforts following the cessation of the JobKeeper payment is in the sum of approximately $13,156 gross per annum.
[93] Ibid.
[94] Ibid.
[95] Ibid page 3.
The husband continues to be in receipt of income of approximately $1,928 gross each week ($100,256 per annum) together with superannuation benefits paid by his employer of $4,680 per annum.[96] He pays a rental sum for his own accommodation of $250 each week.[97] The husband has re-partnered but does not reside with his new partner.
[96] Financial Statement affirmed by Mr Christou on 21 May 2020, page 3.
[97] Ibid page 4.
The parties have had various interim hearings and orders made in the proceeding which have had the effect of reducing the asset pool available for division between them by the payment out of jointly incurred expenses and otherwise, those orders have enabled the quantification of the asset pool during the course of the trial as agreed between the parties. Pursuant to the taxation returns for each of the parties for the financial year ending 30 June 2019, the husband had a Capital Gains Tax (‘CGT’) liability of $26,055 and the wife recorded a CGT liability of $25,912.[98] The CGT attributed to the parties relates to the sale of the Suburb H property and the sale of the share portfolio.[99] Those liabilities appear in the net asset pool of the parties.
[98] Affidavit affirmed by Mr Christou on 21 May 2020, paragraph 216.
[99] Ibid.
The wife asserted, and the husband denied, that at separation the wife provided the husband with 14 boxes of chattels and personal possessions. The husband was permitted to return to the Suburb C property on only one occasion after separation and that was in the presence of police officers. He maintains he collected only four boxes of items which he placed in the wife’s Motor Vehicle 13. The Motor Vehicle 13 was in the husband’s possession at the time and continues to be so. The parties agree that this vehicle will be transferred to the husband’s registered ownership and consent to an order to that effect. The husband’s evidence is that he:-
… collected four boxes and placed them in [the Motor Vehicle 13] in the presence of police. The boxes contained some jewellery, clothes and shoes. There remain significant items of mine and also heirlooms from my family in [the Suburb C property].[100]
[100] Affidavit affirmed by Mr Christou on 18 June 2020, paragraph 80.
As at 11 June 2020, the wife’s total Centrelink debt equalled $11,396.[101] This total sum comprises of:-
a)the sum of $3,845.88 which was first due on 17 January 2018, owing due to a family income reassessment confirming overpayment of the Family Tax Benefit to her for the financial year ending 30 June 2017;[102]
a)the sum of $6,760.37 which was first due on 1 October 2019, owing due to a family income reassessment confirming overpayment of the Family Tax Benefit to her for the financial year ending 30 June 2018;[103] and
b)an increase of $1,062.43 to the sum owing in the previous sub-paragraph (resulting in a total of $7,822.80) which the wife says in her affidavit evidence was a result of the husband “… not supplying [her] with financial information regarding the business P Company to enable [her] to complete [her] tax return for year ending 30 June 2018.”[104]
This debt has been agreed by the parties to be included in the asset pool in the sum of $4,000. The remaining $7,396 will be borne by the wife. This is a debt the Court takes into account in that it was a debt which accrued as a result of the parties’ establishment of the P Company business which was a joint endeavour.
[101] Affidavit sworn by Ms Christou on 11 June 2020, paragraph 162(c).
[102] Ibid and Exhibit ‘R-23’, page 219.
[103] Ibid page 220.
[104] Affidavit sworn by Ms Christou on 11 June 2020, paragraph 162(c).
Matters as to s 75(2) of the Act
The Court is required to take into account “the matters referred to in subsection 75(2) [of the Act] so far as they are relevant” pursuant to s 79(4)(e) of the Family Law Act 1975 (Cth) (‘the Act’).
The husband submitted the following facts are relevant for the purposes of s 75(2) of the Act:-[105]
a)the parties are in good health;
b)the husband works full-time for D Company earning approximately $100,000 per year;
c)the husband continues to pay child support;
d)the wife is the primary carer of the children; and
e)the wife is employed as an administrative support officer.
[105] Outline of case document filed by the Applicant husband on 18 June 2020, page 12 and page 13.
The husband submitted that the wife has the capacity to work and has previously held roles as a Senior Finance Manager and Finance Executive. Prior to the birth of Y, the wife was earning a taxable income of $94,643 as at the year ending 30 June 2013 whilst employed as a Senior Finance Manager for Z Company and also was a Finance Executive. The husband argued that the wife should have returned to the workforce some two and a half years ago when Y commenced school in 2018. Not only did he assert that she should return to the workforce but that he considered she should have done so in a full-time capacity. He claimed that she had a clear earning capacity which she was not exercising. The wife met that argument with the obvious answer which was that, as a result of being the primary carer of the children and in order to attend to the day to day needs of the children, including the particular needs of X (who requires additional assistance for his anxiety and homework)[106] she has been unable to resume working in a full-time capacity. Furthermore, she is unable to resume the type of work she performed prior to the birth of her children. She described that workload as including after hours and weekend work and being of a type which was not compatible with her responsibility of caring for the children.
[106] Outline of case document filed by the Respondent wife on 16 June 2020, page 9.
It is clear the wife has sought out employment and has managed, to this point in time, to obtain the two days each week that she is currently employed. She will continue to seek out employment which allows her to care for the children both before and after school hours and during the children’s school holidays when they are not with the husband. Her income capacity is clearly not that which it was some seven and a half years ago. She has been out of the workforce for an extended period (as a full-time employee). Her earning capacity is not that of the husband but indeed considerably reduced. Likewise, so is her present income and likely income into the future.
The chattels of the parties
Some time was spent during the cross-examination of the wife at trial as to chattels sought to be provided to the husband which the husband claimed remained in the former matrimonial home. The Court indicated, as that process was undertaken, which of the parties should retain various items currently in the former matrimonial home. Following the trial, the parties forwarded a consent order to the Court in accordance with the earlier indications of the Court, the parties accepting that some of the chattels cannot presently be located and/or no longer exist.
The wife gave very clear evidence under cross-examination in respect of some items of jewellery belonging to the husband. The Court found her a credible witness in this regard. The Court accepts her evidence as to the husband’s engagement ring and wedding band. The wife’s evidence was that those items of jewellery were not in the former matrimonial home and that she had searched the home for them and had not been able to find them. Her evidence was further that the husband had worn the rings on perhaps only one occasion and she had therefore not sighted the rings for a very long period. The husband’s TAG watch was given to him by the wife, on the wife’s evidence, it being in one of the 14 boxes available for his collection immediately after separation and being in the same box as the husband’s coin collection. The police assisted the husband in transporting the said boxes from inside the home to the vehicle the husband was driving, that vehicle being the Motor Vehicle 13 registered in the wife’s name which had remained in his possession. The wife has not seen the watch in the approximately two and a half year period that has since passed. The husband’s gold chain and cross, the wife indicated, she would have to look for, and that she did not know it was missing. If the wife locates these items of jewellery the wife will make them available to the husband.
The Court will make an order as to the husband’s jewellery to provide that if the wife locates same that she will, within 14 days thereafter, provide to the husband such jewellery as she has then located.
Conclusion
Section 79(2) of the Act provides as follows:-
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Each of the parties seeks that the Court alter their existing legal and equitable interests and each submit to the Court that it would be just and equitable to make orders as sought by them.
The Court is satisfied that in all the circumstances of this case it is just and equitable to make orders altering the legal and equitable interests of the parties in property held by them and/or either of them. During the course of the trial the parties managed to reach agreement also on offering the wife the first opportunity to buy out the husband’s interest in the Suburb C property. If the wife is unable to raise sufficient funds to pay out the husband’s interest then the husband at his election can seek to purchase the interest of the wife. This ultimately was a matter not in dispute between the parties.
The Court determines that the net asset pool of the parties excluding superannuation entitlements (which the parties have agreed should be apportioned approximately equally between them), should be divided 60 percent in favour of the wife and 40 percent in favour of the husband. The wife’s contribution at the commencement of cohabitation, although many years ago and existing with the myriad of contributions made by each of the parties thereafter, remains of some significance in the asset pool this day. The Court determines that a three percent adjustment should be made in respect of that contribution in the wife’s favour.
When looking to matters as set out in s 75(2) of the Act, the Court determines there should be a further adjustment in the wife’s favour of seven percent. That seven percent occurs as result of the wife’s lesser income and earning capacity together with her ongoing primary care of the children and need to provide financial support for them additional to that provided by the husband. Thus the total adjustment in the wife’s favour is ten percent.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hartnett delivered on 14 August 2020.
Associate:
Date: 14 August 2020
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Consent
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Costs
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Remedies
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Statutory Construction
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Jurisdiction
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