Chun & Zheng
[2023] FedCFamC2F 377
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chun & Zheng [2023] FedCFamC2F 377
File number: MLC 7378 of 2022 Judgment of: JUDGE BLAKE Date of judgment: 27 March 2023 Catchwords: FAMILY LAW – Undefended hearing – where husband sought adjournment – adjournment refused – leave to proceed undefended granted – adjustment of property interests – significant contribution by wife’s mother – contributions favour the wife – adjustment for future needs. Legislation: Family Law Act 1975 (Cth) ss 75(2), 79, 79(1), 79(2), 79(4).
Federal Circuit and Family Court of Australia (Family Law Rules) 2021 rr 1.33, 1.33(2)(c), 10.25, 10.26(2), 10.26(2)(c), 10.27, 10.27(2).
Cases cited: Bevan & Bevan [2013] FamCAFC 116
Binns & Palister [2021] FedCFamC1F 142
Deng & Galinski [2021] FCCA 843
Dickons & Dickons [2012] FamCAFC 154
Eufrosin & Eufrosin [2014] FamCAFC 191
Kleine & Kleine [2021] FedCFamC1F 51
Lanceley & Lanceley (1994) 18 Fam LR 71
Lovine & Connor [2012] FamCAFC 168
Stanford v Stanford [2012] HCA 52
Zane & Allan [2008] FamCAFC 115
Division: Division 2 Family Law Number of paragraphs: 56 Date of hearing: 27 March 2023 Place: Melbourne Counsel for the Applicant: Mr Arnold Solicitor for the Applicant: Hiways Lawyers Solicitor for the Respondent: In Person Solicitor for the Respondent: None ORDERS
MLC 7378 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CHUN
Applicant
AND: MR ZHENG
Respondent
order made by:
JUDGE BLAKE
DATE OF ORDER:
27 MARCH 2023
THE COURT ORDERS THAT:
1.The Applicant Wife has permission to pursue her application for property orders on an undefended basis as contemplated under rule 1.33 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘Rules’) and permission to seek judgment in default under rules 10.26(2)(c) and 10.27(2) of the Rules.
2.Order 3 of the Orders of 18 August 2022 made in respect of spousal maintenance, be discharged.
The B Street, Suburb C Property
3.Within 7 days from the date of these Orders, the Respondent must do all acts and things necessary to vacate the property situated and known as B Street, Suburb C in the State of Victoria, being the whole of the land described in certificate of title Volume … Folio … (“the B Street, Suburb C Property”).
4.Within 60 days from the date of these Orders, the parties shall do all acts and things and sign all documents necessary to transfer to the Applicant (“the transfer”), at the expenses of the Applicant, the Respondent’s right, title and interest in the B Street, Suburb C Property.
5.That for the purpose of the transfer, both parties shall do all acts and things and sign all documents as may be necessary to discharge the mortgage secured over the B Street, Suburb C Property and in favour of Commonwealth Bank of Australia (Mortgage dealing: …); and the Applicant shall as soon as practicable, refinance the mortgage into her name at her sole expense.
6.Upon completion of the transfer of the B Street, Suburb C Property, the Applicant shall retain the B Street, Suburb C property for her sole use and benefit and to the exclusion of the Respondent. The Applicant shall further indemnify the Respondent and keep him indemnified against all past, present, and future liabilities arising from the B Street, Suburb C Property.
7.Subject to the Respondent’s compliance to Orders 3 to 5, pending the transfer of the B Street, Suburb C property:
(a)The Applicant shall pay all mortgage repayments, apportionable taxes and outgoings in relation to the B Street, Suburb C property including any bills and/or utilities as they fall due; and
(b)The Applicant shall have the sole use and occupancy of the B Street, Suburb C Property.
8.That in the event the Applicant is in default of Order 5 above, the B Street, Suburb C Property shall forthwith be sold (“the Sale”) by way of a 35-day auction, by a selling agent appointed by the Applicant. The reserved price for the sale is to be nominated by the selling agent. Upon completion of sale, the proceeds of sale shall be applied in the priority as follows:
(a)Firstly, to pay all costs, commissions, and expenses in relation to the Sale of the B Street, Suburb C property;
(b)Secondly, to discharge the mortgage secured over the B Street, Suburb C Property in favour of the Commonwealth Bank of Australia (Mortgage dealing: …);
(c)Thirdly, to pay all balance remaining to the Applicant.
Commonwealth Bank Offset Account ending in #...42
9.That, upon receiving a sealed copy of these Orders, the Applicant’s solicitors forthwith be permitted to serve a copy of these Orders upon the Commonwealth Bank of Australia, and paragraph 9 herein shall be deemed as the parties’ irrevocable authority to the Commonwealth Bank of Australia to forthwith, unfreeze the parties’ Joint Commonwealth Bank of Australia Offset Account (BSB: … Account no: …42); and contemporaneously, it is requested that the bank disburse all balance in this account to an account nominated by the Applicant.
10.For the purpose of the preceding paragraph 9, paragraph 10 is deemed as the Respondent’s irrevocable authority to the Applicant to have the exclusive right to forthwith attend any Commonwealth Bank Branch to sign and authorise the transfer of funds held in the Joint Offset account ending #...42, and thereafter, close the Joint Offset Account ending #...42.
Transfer of D Share Portfolio account #...15
11.Within 7 days from the date of these Orders, both parties shall do all acts and things and sign all documents as may be necessary to transfer all the parties’ shares and interest held in their D Share Portfolio account #...15 (“the Sale of D Shares”) to the Respondent.
Commonwealth Bank CDIA account #...43
12.Within 7 days from the date of these Orders, both parties shall do acts and things to sign all documents as may be necessary to close the Commonwealth Bank CDIA Account ending #...43.
Settlement Payment
13.That, within 14 days from the date of these Orders, the Respondent shall pay to the Applicant’s solicitors’ trust account (BSB/ACC: …92), a sum of $39,617. (“the Settlement Payment”).
14.In the event the Respondent is in default of Order 13 property situated and known as E Street, Suburb F in the State of Victoria, (“the E Street, Suburb F Property”) be forthwith placed on the market for sale by way of a 35-day auction, by a selling agent appointed by the Applicant. The reserved price for the sale is to be nominated by the selling agent. Upon completion of sale, the proceeds of sale shall be applied in the priority as follows:
(a)Firstly, to pay all costs, commissions, and expenses in relation to the Sale of the E Street, Suburb F property;
(b)Secondly, to discharge the mortgage secured over the E Street, Suburb F property.
(c)Thirdly, pay the Applicant the Settlement Payment plus penalty interest calculated from the date of the default; and
(d)Fourthly, pay all balance remaining to the Respondent.
Other
15.That save and except as set out in these Orders, as and from the date of these Orders, the Applicant otherwise retains, to the exclusion of the Respondent, all of her right, title and interest in:
(a)Any bank accounts and balances held in her name;
(b)Any shares held in her name;
(c)Her personal effects and chattels in her current possession; and
(d)Her Superannuation entitlement.
16.That save and except as set out in these Orders, as and from the date of these Orders, the Respondent otherwise retain, to the exclusion of the Applicant, all of his right, title and interest in:
(a)The E Street, Suburb F Property;
(b)His Motor Vehicle 1;
(c)His Motor Vehicle 2;
(d)Any bank accounts and balances held in his name;
(e)His Company G Shares Portfolio in his name;
(f)His personal effects and chattels already in his possession; and
(g)His Superannuation entitlement.
17.That save and except as set out in these Orders, as and from the date of these Orders, each party shall be solely responsible for any liability in his/her name and each party shall indemnify the other party and keep the other party indemnified in respect of any liability in his or her respective names arising from or in relation to any and all assets to which they are respectively entitled to pursuant to these Orders.
18.Unless otherwise specified in these Orders and save for the purposes of enforcing monies due under these or any subsequent Orders:
(a)Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in their name or possession as at the date of these Orders;
(b)Insurance policies remained the sole property of the beneficiary named thereon;
(c)Each party be solely liable for an indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(d)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
19.In the event that either party refuses or neglects to execute a deed and/or instrument in compliance with the provisions of these Orders, the Registrar or Deputy Registrar of the Federal Circuit and Family Court of Australia, Dandenong Registry, is hereby appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute all deeds and or instruments in the name of either of the parties and do all acts and things to give validity and operation to the deeds and or instruments.
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 Chun & Zheng has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(delivered ex tempore, revised from transcript)
JUDGE BLAKE
This is an application by the wife for final orders in respect of property matters. She seeks those orders on an undefended basis pursuant to rules 1.33 and rules 10.25 to 10.27 of the Federal Circuit and Family Court of Australia (Family Law Rules) 2021 (‘Rules’).
The wife relies on her Amended Application filed 10 February 2023, her trial affidavit filed 6 March 2023 and her financial statement filed 6 March 2023.
I indicated earlier that I granted the wife leave to proceed on an undefended basis. I indicated at that time that I would give reasons for that. What follows now are firstly, the reasons in relation to the application to proceed undefended and also the refusal of the husband's application for an adjournment, and then what follows are reasons in relation to the substantive orders sought.
THE APPLICATION TO PROCEED ON AN UNDEFENDED BASIS
Principles
The Rules provide mechanisms that allow the Court to determine a case if a party does not comply with the Rules, Family Law Regulations or procedural orders.
Rule 1.33(2)(c) permits the Court to determine the proceeding as if it were undefended if a party does not comply with a procedural order. The term “undefended” is not defined in the Rules but was given definition in the Full Court case of Zane & Allan [2008] FamCAFC 115 at paragraph [8] as follows:.
[8]The expression “undefended” is not defined, or otherwise explained, in the Rules. However the Explanatory Guide to the Rules (which is expressly stated not to be part of the Rules) explains the term “undefended basis” in the following way:
…the court may order that a hearing or trial may proceed, because of the respondent’s failure to comply with a rule or order, as if a response has not been filed. The court may make orders set out in the application on being satisfied by evidence that the orders should be made.
Under the current Rules, applications for default are dealt with under Part 10.6. Rule 10.26(2) of the Rules deals with when a respondent is in default and relevantly provides as follows:.
(2)For the purposes of rule 10.27, a respondent is in default if the respondent fails to:
(a)give an address for service before the time for the respondent to give an address has expired; or
(b)file a response before the time for the respondent to file a response has expired; or
(c)comply with an order of the court in the proceeding; or
(d)file and serve a document required under these Rules; or
(e)produce a document as required by Division 6.2.2; or
(f)do any act required to be done by these Rules; or
(g) defend the proceeding with due diligence; or
(h)prosecute with due diligence any application the respondent has made in the proceeding.
Rule 10.27(2) of the Rules relevantly states that if a respondent is in default, the Court may give judgment against the respondent.
While the Court cannot compel a person to participate in litigation, the Court must afford a party an adequate opportunity to be heard, see the statement of Altobelli J in Kleine & Kleine [2021] FedCFamC1F 51 at paragraph [21].
There is then the question of how the Court is to approach its task in an undefended hearing. The authorities indicate that the manner in which an undefended hearing may be conducted will vary depending on the circumstances of the case, and that the Court has a wide discretion in relation to the involvement of a defaulting party.
In that regard, I refer to paragraph [25] of the decision of Howard J in Binns & Pallister [2021] FedCFamC1F 142 as follows:
[25]…The Court has a discretion as to how to conduct a hearing when a case is undefended. That this is so has been confirmed in earlier cases. I note that in the decision of the Full Court of the Family Court of Australia in Zane & Allan [2008] FamCAFC 115 – the Court did not cavil with the comments of the trial judge (Le Poer Trench J) concerning the “wide discretion to be exercised by the trial judge” in relation to, amongst other things, the involvement of the defaulting party in an undefended hearing. It was noted by Le Poer Trench J and (seemingly supported by the Full Court) that the discretion “must be tempered with regard to procedural fairness, natural justice and the requirement to do justice to all of the parties.”
The party that seeks judgment on an undefended basis under Part 10.6 of the Rules is not entitled by right to the orders that he or she seeks simply because the party fails to prosecute his or her case. In property proceedings, such as this one, the Court must be satisfied that any orders that are made are just and equitable, see: Lanceley & Lanceley (1994) 18 FamLR 71 at page 80.
Consideration
At the outset, it is appropriate to note that the husband, who appeared on his own behalf, opposed the wife’s application to proceed on an undefended basis. He effectively sought an adjournment. He told the Court the following:
(a)that he had emailed my associate documents he wanted to rely on last week. As I understand it, those documents were emailed to my chambers on 23 March 2023;
(b)the documents he emailed on 23 March 2023 included the initial affidavit that he filed in the proceedings;
(c)that he wanted, today, to make sure that these documents and potentially others were filed properly and given to the other side; and
(d)that given this matter had been set down for three days, there was no reason effectively, why the parties could not return tomorrow to run their respective cases.
The husband also told the Court that this was the first time he had been in this position and stated, in effect, that his mental health had not been good. On this latter point, I note he adduced no evidence to indicate his incapacity for mental health reasons or otherwise.
In reply to those submissions of the husband, Mr Arnold, counsel for the wife, said the husband had also sent through various bank statements last week, on 23 March 2023, and that he had not had time to seek instructions or review them.
The starting point to consider in respect of the application from the husband for an adjournment are the orders of Judge Harland of 15 February 2023. Judge Harland set this matter down for a three day final hearing following a Compliance and Readiness Hearing on 15 February 2023. That is some six weeks ago.
The husband was unrepresented at that Compliance and Readiness Hearing. Judge Harland made clear that the husband was to file his material 14 days prior to the final hearing. He has not done so. Judge Harland also made an order that no party could rely on earlier affidavits. Finally, Her Honour made a notation that in the event of non-compliance with the orders, the Court may proceed to determine the matter on an undefended basis.
The husband works as a professional. He is an educated man. He had no difficulty before me engaging with the Court. The orders are clear. The husband might have paid insufficient attention to them, but they are clear and, had he read them, he would have understood them.
The husband asked the Court to give him the day (the first day of the hearing, 27 March 2023) to properly file material to be relied on, and for the case to be conducted tomorrow. That would place the wife, who has complied with the trial directions, at a serious disadvantage. The wife would not have 14 days to consider the husbands material, but only one day or potentially less. It might be said that she has seen this material earlier if, indeed, he does rely only on his earlier filed affidavit, but there is no guarantee that this is the case. The husband attached other material to the email he sent to my chambers. There are also the bank statements that the husband only provided to the other side last week and that should have been provided much earlier. In short, the husband wants me to conduct the trial tomorrow in which the wife has had no proper notice of the case she has to meet. I decline to do this.
I have given consideration to whether the trial could be adjourned to a later date. The next date I have available for a three day trial is February 2024. That is eleven months from now. That is an inordinately long time. I note that if I were to make such an order, the wife would be prejudiced.
The critical issue in this case is the amount of contributions the wife's mother made to the relationship. The amount in total is around $1,600,000 out of an asset pool of approximately $2,500,000. The husband has had the benefit of this given the current financial arrangements that exist, and he would continue to have the benefit of this. To delay the trial for 11 months would therefore seriously prejudice the wife for a considerable period of time, not to mention the additional prejudice she would be subject to by having to bear the costs of today and prepare for trial.
Finally, there is the question of the Court's time and resources to consider. This case has followed the existing and current case management pathway. It has been assessed as ready for trial following a proper Compliance and Readiness Hearing. I have allocated three days to hear it. Because I have done so, another case in this busy Court has not been allocated to me. Judicial resources and Court time would therefore be inefficiently used if I were to grant the adjournment sought by the husband. I note the import of the Overarching Purpose imposed upon this Court by the Act and also Core Principles 2, 3 and 6 of the Central Practice Direction. The Court must take non-compliance seriously, given the impact it has on the inefficient use of Court time and judicial resources. For all of these reasons, I refuse the husband's application for an adjournment.
It is then necessary to consider the application to proceed undefended by the wife. Having reviewed the material before me, including the orders of Judge Harland of 15 February 2023, to which I have referred earlier, I am satisfied the husband has been given an opportunity to participate in these proceedings. The wife initiated the Application in this Court on 6 July 2022. The husband filed his Response on 8 August 2022. There were a number of procedural hearings in the latter half of 2022 in which both parties were represented and which both parties participated in.
On 1 February 2023, the husband's solicitors signed a notice of ceasing to act. On 15 February 2023, the matter came on for Compliance and Readiness Hearing before Judge Harland. As I have noted, orders were made setting the matter down for trial for three days before me.
Among other things, the wife was required to file and serve any amended application, updated trial affidavit and updated financial statement 21 days prior to trial. She complied with all of those orders. I am satisfied, given the evidence in the witness box by her solicitor, that the trial material was served on the husband 21 days prior to the final hearing.
The husband was required to file and serve any amended response, updated trial affidavit and updated financial statement 14 days prior to trial. He has not complied with those orders. I have also noted earlier the terms of order 7 made by Judge Harland and the content of notation B made by Judge Harland.
All of those orders and the notation were made in the presence of the husband. He was expressly on notice of the matters, the subject of the orders and notations, and what would happen if he failed to comply. In my view, there has been non-compliance by the husband with the trial directions made by Judge Harland. The husband was on notice as to what would happen. He has been provided with the wife's material. Moreover, the husband has been given an opportunity to participate in proceedings and has not done so. I am satisfied he is in default within the meanings of Rules 10.26(2)(c) and 10.27 by failing to comply with Court orders. I therefore grant leave to the wife to proceed on an undefended basis in relation to her application for property orders under Rules 1.33 and 10.27.
RELEVANT PRICIPLES
The power of Court to alter the property interests of the parties is contained in section 79 of the Family Law Act 1975 (Cth) (‘Act’). Section 79(1) of the Act empowers the Court to make such orders as it considers appropriate in altering interests of the parties to a marriage. The power of the Court under subsection 79(1) is a power to be exercised having regard to the subsections that follow, in particular, subsection 79(2) and (4) and consequently subsection 75(2) of the Act.
The provisions set out above have been the subject of extensive consideration by both the High Court of Australia and the Full Court. See Stanford v Stanford [2012] HCA 52 at [35]-[40], [42] and Bevan & Bevan [2013] FamCAFC 116 at paragraph [73]-[86], [89]. The Chief Justice recently summarised the applicable principles and approach in Deng & Galinski [2021] FCCA 843 at [34]-[37], and I am required to approach the matter consistent with the principles outlined above.
When it comes to an assessment of contributions and the approach taken, I have had regard to the comments of the Full Court in Dickons & Dickons [2012] FamCAFC 154 at [23]-[24], Eufrosin & Eufrosin [2014] FamCAFC 191 and Lovine & Connor [2012] FamCAFC 168 at [42].
SHOULD AN ORDER BE MADE ALTERING THE PROPERTY INTERESTS OF THE PARTIES?
I am satisfied that in this matter it is just and equitable to embark upon an exercise in determining how the assets of the parties are to be split. The parties separated in February 2022. Separation occurred initially under one roof, however, the wife subsequently moved out of the former matrimonial home on 8 June 2022. There is one child of the relationship, X, who lives with the wife and spends time with the husband. The parties consented, on 18 August 2022, to the receipt by each of them of partial property settlements pending the finalisation of financial matters between them.
It is self-evident the parties are no longer in a relationship and that there will no longer be any common property available for shared use by the parties. I am satisfied that it is just and equitable to make an order for property division pursuant to section 79 of the Act.
THE ASSETS AND LIABILITIES OF THE PARTIES
I note the only evidence I have before me is that of the wife's, set out in her affidavit and also her financial statement. I note that evidence is unchallenged, and I accept it.
At paragraph [19] of the wife’s trial affidavit, the wife sets out the assets and liabilities of the parties in tabular form as follows:
Assets Owner Value 1. B Street, Suburb C ("the
B Street, Suburb C Property")
Joint $1,775,000
(per agreement Between parties on 3/3/2023)
2. Commonwealth Bank Offset Account for B Street, Suburb C Property account #...42 Joint $902,987
As at 01.03.23
3. E Street, Suburb F (“the E Street, Suburb F Property”) Husband $520,000
(per agreement between parties on 3/3/2023)
4. D Share Portfolio account #...15 Joint $34,802
As at 04.03.23
5. Company H Share Portfolio account #...82 Wife $21
As at 04.03.23
6. NAB account:
· #...44
· #...03
· #...91
· #...52
Wife $0
$0.01
$1,104$0
7. Commonwealth Bank account
· #...20
· #...37
· CDIA #...43
Wife USD$4,910
(AUD $7,055)$1,967.66
$0
8. Company H Shares Portfolio Husband E$40,000
As per husband’s financial Statement
9. Bank of Melbourne account #...84 Husband Not Known 10. Bank of Melbourne account #...61 Husband $0
As at 01.10.22
11. Bank of Melbourne Complete Freedom Offset account #...39 Husband $32
As at 06.04.22
12. Bank H Account: -
· #...23
· #...72
Husband $0
$0
13. Bank J account: -
· #...75
· #...64
· #...69
Husband $0
$0$0
14. CBA Netbank Account #...65 Husband $0 15. Westpac Bank account Husband NK 16. Motor Vehicle 1 Husband $36,545
As per Redbook valuation certificate 10.08.22
17. Motor Vehicle 2 Husband E$65,000 18. Add back (Bank of Melbourne Complete Freedom Offset account #...84) Wife $122,000 19. Add back (Bank of Melbourne Complete Freedom Offset account #...84) Husband $122,000 Total Assets $3,628,513 LIABILITIES 20. Mortgage of the B Street, Suburb C Property Commonwealth Bank #...01 Joint $862,708
As at 04.03.2023
21. Mortgage of the E Street, Suburb F Property Bank of Melbourne account #...00 Husband $304,030
As at 16.08.2022Husband’s financial statement
Total Liabilities $1,166,738 Net Assets excluding superannuation $2,461,775 SUPERANNUATION 1. Super Fund 1 Wife $44,399
As at 04.03.2023
2. Super Fund 2 Husband $74,000
As per Husband’s financial statement
Total Superannuation $118,399 Net Assets Including Superannuation $2,580,174 Contributions
Insofar as initial contributions are concerned, the wife entered the relationship with an amount of $41,170 which was a returned deposit from another property purchase that did not proceed.
In contrast and notably, the wife concedes an initial contribution by the husband of around $90,000, comprising a $50,000 deposit he paid for the E Street, Suburb F property, $6,400 in his bank account and a car worth $35,000. Otherwise, the parties had nominal assets. It can be seen that initial contributions therefore favoured the husband.
There are then the contributions during the relationship. The wife says the contributions from her mother, being cash contributions, totalled $1,652,950. That amount, in a total net asset pool of $2,580,174, inclusive of the superannuation. The evidence before the Court, which I accept, is that approximately $911,843 of that amount (a contribution from the wife’s mother) was made in the late stage of the marriage, between 2018 and 2021. About $299,967 was made on 26 August 2016, and approximately $399,970 was made between October 2014 and February 2015. While the wife initially claimed these were loans from her mother, no independent documentary evidence has been adduced to demonstrate that these are loans. The wife, therefore, seeks that the Court treats these amounts as contributions on her behalf.
I note that the wife is a professional. In her affidavit, she has deposed, in detail, to the specifics of when these contributions were made, and the amounts. I accept the wife's evidence as to the total amount of the contributions received by the parties from the wife's mother, and the dates on which they were received. I regard it as appropriate to treat them as contributions of the wife to the parties' relationship. I also give very significant weight to them, given they form such a substantial portion of the asset pool, and given that the bulk of them were made later in the relationship, which was of reasonably short duration.
As to other contributions, the wife says she worked full-time prior to childbirth, and part-time since the birth of the child. She only took maternity leave from 2020 to 2021, and she says she has applied all the income she has earned towards family expenses, or into family bank accounts, including the offset accounts. I accept that evidence.
The wife concedes that the husband earns more than her. The wife’s current gross weekly salary is $1,641, whereas the husband’s gross annual salary as at February 2022, which is the last date there are income details for him, was approximately $98,924. The wife concedes that the husband made contributions financially during the relationship, and that those contributions, of a financial nature, were greater than hers by dint of his greater earning capacity. I accept that evidence.
The husband's greater financial contributions during the relationship (in terms of his income earned) carry weight, though I would observe that this is also not a case where the wife did not work, she did, and she contributed whatever she had.
The wife has been the primary carer of X. The wife was also the primary homemaker responsible for cooking, cleaning, laundry, and shopping. Her evidence is that the husband controlled the finances, paid the bills, did some online grocery shopping and some vacuuming, but otherwise did not assist with domestic chores. I accept all of that evidence.
Mr Arnold, counsel for the wife, submitted that, outside of the approximately $1,600,000 contributed by the wife's mother, the contributions of the parties should be recognised as equal. I accept that to be the case.
This is, therefore, a case that, when all of the contributions are weighed, those contributions very significantly favour the wife. The net asset pool of the parties, inclusive of superannuation, is $2,580,174. The contributions by the wife's mother are $1,652,950. On any view, the amounts contributed by the wife's mother, which I credit to the wife, form a substantial portion of the asset pool. Without those contributions, the asset pool of the parties would be less than $1,000,000. These are significant contributions, not only because of their sum total, but also because of what they have enabled the parties to achieve. There is no doubt that they have gained significant interest savings on mortgage payments off the back of these contributions. Therefore, in the context of a relationship that was not lengthy and in a context where the substantial portion of those contributions were made late in the relationship, I give those contributions, which I regard as contributions of the wife, significant weight. As I say, the contributions significantly favour her. I would weigh those contributions at 75 per cent to the wife, 25 per cent to the husband.
ADJUSTMENTS UNDER SECTION 75(2) OF THE ACT
The wife is a professional, working at the Employer K. The wife is clearly educated and intelligent. Subject to one matter, which I will mention, she has good career prospects. The husband is a professional with Employer L, he also is clearly an educated and intelligent man, and one forms the view, as I have, that he also has good employment prospects.
The one qualification I would place on the wife's ability to increase her income is that she is the primary carer of X. X is very young, the wife has deposed that she works part time, given her care of the child. The wife will, therefore, not be in a position to advance her career, given her childminding responsibilities, for some time. This is not a case where there are teenage children who can, for example, walk themselves home, and look after themselves after school. It is to be expected that the wife will need to play a primary carer role, given the child's age, for some time.
The evidence is that both parties are in good health, though the mother has a medical condition. There is not any evidence, however, that this condition affects her capacity for work, such as to affect her earning capacity in the future. The husband pays child support of $109.97 per week. That amount is not likely to cover anywhere near half the costs of raising X. It is the mother, who I infer from all of the evidence, is likely to bear the additional costs of raising X.
The wife outlined at Part N of her financial statement the list of expenses she has each week. I accept those to be an accurate outline of the expenses she incurs for her child and herself, and I infer that they are likely to continue into the future.
In her written outline, the mother sought an adjustment of plus 10 per cent for future needs. I consider that to be somewhat excessive in all of the circumstances, including where the wife enjoys reasonably good health, apart from her medical condition, is educated, holds a professional job where and the husband is paying child support. A smaller adjustment is, in the circumstances referred to however, warranted. I will adjust the amount so as to add a further five per cent to the 75 per cent weighting I have given to her contributions. Doing so would effect a total property split of 80 per cent to the wife, and 20 per cent to the husband.
Turning briefly to deal with the orders that the wife, through her counsel, submit are necessary to be made to give effect to the 80/20 split of net assets.
The orders sought by the wife operate on the basis that she would retain the B Street, Suburb C property, and the husband would retain the E Street, Suburb F property, with each to take the mortgage associated with their property. The B Street, Suburb C property is clearly the more valuable property. It is the property that has benefitted, perhaps, most significantly from the contributions made by the wife. The wife deposed that she wished to retain that property, because it would provide a home for her and her child. I accept that to be the case. I also note that the husband brought the E Street, Suburb F property into the relationship, it is a property that he chose, and it will provide accommodation for him, should he wish it.
The wife proposes that funds in the Commonwealth Bank offset account, number ending …42, be dispersed to her. This, as I understand the evidence, represents the most significant portion of the wife's contributions to the parties in a bank account. To give effect to the split, the wife also seeks an order that the husband pay to her the amount of $39,617.
Under the orders, the husband would retain the E Street, Suburb F property, the shares that he owns in his Company G account, his motor vehicles, and the addback, noting that the addback of a partial property settlement is also taken into account for the wife. The orders otherwise provide for each party to retain their superannuation, bank accounts in their name, shares, as well as personal possessions.
Insofar as superannuation is concerned, I note that a superannuation split order was not pursued, with the adjustment to achieve an 80/20 split of assets as being done by way of cash adjustment to the wife.
Finally, I note that there was a consent order made for spousal maintenance on 18 August 2022. These orders reflect an adjustment for future needs of the wife, in the context of an application for final division of property. In those circumstances, it is necessary to discharge the order for spousal maintenance.
I have stepped back to consider the effect of these orders on the parties, given the matters I have referred to in these reasons and the evidence before me. I am satisfied these orders represent a just and equitable distribution of the property of the parties.
Mr Arnold provided to the Court, a minute of order sought by the wife in final form. I will make orders in that form, along with the order, which I have already pronounced, but not produced in writing, that the wife be given leave to proceed on an undefended basis. I will also make an order for the discharge of the spousal maintenance order.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 4 April 2023
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