Cuoco and Cuoco
[2017] FamCA 403
•9 June 2017
FAMILY COURT OF AUSTRALIA
| CUOCO & CUOCO | [2017] FamCA 403 |
| FAMILY LAW – PROPERTY SETTLEMENT – Where the initial contributions favour the husband in the ratio of 95/5 per cent – Where the wife’s parents assisted in the care of the children and made significant contributions to the renovation work undertaken on a property owned by the parties – Where both parties work to capacity – Where it was conceded the wife and wife’s parents had made sufficient contributions by separation to change the assessment to a 60/40 per cent split favouring the husband – Where post separation the wife and maternal grandparents care for the children – Where the wife works at a level which significantly reduces the child support payable – Where both parties contribute to mortgage repayment – Concluded an adjustment to a ratio of 52.5/47.5 per cent favouring the husband – Where the wife is released by the maternal grandmother’s assistance to earn at the level she does – Where it cannot be assumed the wife can maintain the level of income without the maternal grandmother’s help, nor can it be assumed the maternal grandmother will be available to help until the children reach majority – Concluded there should be a 12.5 per cent adjustment in favour of the wife – Ordered the division of property be 60/40 in favour of the wife |
| Family Law Act 1975 (Cth), ss 75, 79 |
| Bevan & Bevan [2013] FamCAFC 116 Stanford & Stanford (2012) 247 CLR 108 |
| APPLICANT: | Mr Cuoco |
| RESPONDENT: | Ms Cuoco |
| FILE NUMBER: | SYC | 3518 | of | 2012 |
| DATE DELIVERED: | 9 June 2017 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 6 & 7 March 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schonell |
| SOLICITOR FOR THE APPLICANT: | The Norton Law Group |
| COUNSEL FOR THE RESPONDENT: | Ms Steggall |
| SOLICITOR FOR THE RESPONDENT: | Fabiani Solicitors |
Orders
Within 60 days of the date of orders the Respondent wife shall pay to the Applicant husband the sum of $240,396.
Simultaneously with the wife’s compliance with Order 1:
(a)The husband shall do all acts and sign all documents, deeds and instruments submitted by the wife to transfer to the wife all his right, title and interest in the property known as E Street, Suburb D NSW and contained in Certificate of Title Folio Identifier … (“the Suburb D property”).
(b)The husband shall do all acts and sign all documents, deeds and instruments and shall pay out and discharge the AMP loan accounts numbered …55, …31, …53, …57 and …02 (“the AMP mortgages”) secured by the Suburb D property and F Street, Suburb C, contained in Certificate of Title Folio Identifier … (“the Suburb C property”).
Simultaneously with the husband’s compliance with Order (2)(b), the husband shall be declared the sole legal and equitable owner of:
(a) The Suburb C property;
(b)The 10 shares held in G Pty Ltd ACN …;
(c) Any vehicle registered or unregistered in which he has an interest; and
(d) The Company L shares in the husband’s sole name;
And he shall indemnify and keep indemnified the wife against all expenses arising from or in connection with the above howsoever and whenever arising.
As between the parties, the husband shall be liable for the payment of:
(a) The amount due by the husband to his parents; and
(b)The strata levies and special levies payable in connection with the Suburb C property;
And the husband shall indemnify and keep indemnified the wife in relation to these liabilities.
As between the parties, the wife shall be liable for the payment of the amount due by the wife to her mother and the wife shall indemnify and keep indemnified the husband in relation to this liability.
As between the parties, and subject to these orders the husband and wife shall each respectively retain all interest in and entitlement to:
(a) All personal property now in his/her respective possession or control;
(b)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively; and
(c)All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.
Each party shall do all things necessary including providing all consents and signing documents to give effect to these orders in the time periods prescribed in these orders.
In the event a party refuses or neglects to execute any deed or instrument necessary to give effect to all or any of the orders made herein (“the defaulting party”):
(a)The Registrar of the Court be appointed pursuant to s 106A of the Family Law Act 1975 to execute the deed or instrument in the name of the defaulting party and to do all other acts and things necessary to give validity and operation to the deed or instrument; and
(b)The defaulting party shall be liable for and shall indemnify the other party in respect of any costs or expenses incurred as a result of the defaulting party’s refusing or neglecting to execute any deed or instrument necessary to give effect to all or any of the orders made herein.
If the wife fails to comply with Order 1, then within 90 days from the date of these orders, the husband and the wife shall do all acts and things necessary including signing any necessary documents so as to cause the Suburb D property to be sold and for the purpose of effecting that sale, the parties shall:
(a)Appoint a firm of solicitors to prepare the Contract for Sale of Land in respect of the Suburb D property or failing agreement a solicitor shall be appointed to act for the husband and the wife in the conveyance of the Suburb D property by the President of the Law Society of New South Wales for the time being or his nominee at the request of either party;
(b)List the Suburb D property for public auction with a licensed real estate agent and auctioneer to be agreed upon between the wife and the husband or failing agreement with a licensed real estate agent and auctioneer to be appointed by the President of the Real Estate Institute of New South Wales for the time being or his nominee at the request of either party at a reserve price of $1,075,000.00;
(c)Co-operate in every way with the agent/auctioneer in relation to the auction of the Suburb D property including:
(i)Making a copy of all keys to the Suburb D property available to the agent/auctioneer;
(ii)Allowing inspection of the Suburb D property at all reasonable times;
(iii)Doing or saying nothing to hinder or prevent a sale of the Suburb D property being effected; and
(iv)Ensuring that the Suburb D property including the grounds and gardens are watered and lawns mowed and the whole property is in a neat, clean, well maintained, and tidy condition at the time of inspection by the agent and prospective purchasers.
(d)The auction sale of the Suburb D property shall take place within 14 weeks of the date of these orders;
(e)Attend at the auction sale and, in the event that the reserve price is not reached, negotiate with the highest bidder or any other interested person to effect a sale of the Suburb D property at a price agreed between the parties, or failing agreement, accept the recommendation of the agent/auctioneer as to the acceptance of a price less than the reserve price provided that such recommended price is not more than 3 per cent below the reserve price;
(f)If the Suburb D property is not sold by auction on the first occasion that it is offered for sale by auction, then it shall be offered for sale by auction again every 6 weeks thereafter upon the same terms and conditions as stated above in this order until it shall be sold; and
(g)Do all acts and things necessary to procure that upon completion of the sale of the Suburb D property, the proceeds of sale be paid and disbursed in the following manner and priority:
(i)Firstly, in payment of the agent’s commission and the costs of the sale including advertising expenses and legal costs and expenses;
(ii)Secondly, in payment of council rates and charges and water rates and charges;
(iii)Thirdly, in payment of the sum of $240,396 to the husband together with interest calculated pursuant to the provisions of the Family Law Rules 2004 which interest is to be calculated from the date being 35 days after the date of these orders until the date of payment to the husband;
(iv)Fourthly, in payment of the balance of the proceeds of sale to the wife.
If the husband fails to comply with Order (2)(b), then within 90 days from the date of these orders, the husband and the wife shall do all acts and things necessary including signing any necessary documents so as to cause the Suburb C property to be sold and for the purpose of effecting that sale, the parties shall:
(a)Appoint a firm of solicitors to prepare the Contract for Sale of Land in respect of the Suburb C property or failing agreement a solicitor shall be appointed to act for the husband in the conveyance of the Suburb C property by the President of the Law Society of New South Wales for the time being or his nominee at the request of either party;
(b)List the Suburb C property for public auction with a licensed real estate agent and auctioneer to be agreed upon between the wife and the husband or failing agreement with a licensed real estate agent and auctioneer to be appointed by the President of the Real Estate Institute of New South Wales for the time being or his nominee at the request of either party at a reserve price of $1,250,000.00;
(c)Co-operate in every way with the agent/auctioneer in relation to the auction of Suburb C property including:
(i)Making a copy of all keys to the Suburb C property available to the agent/auctioneer;
(ii)Allowing inspection of the Suburb C property at all reasonable times;
(iii)Doing or saying nothing to hinder or prevent a sale of the Suburb C property being effected; and
(iv)Ensuring that the Suburb C property is in a neat, clean, well maintained, and tidy condition at the time of inspection by the agent and prospective purchasers.
(d)The auction sale of the Suburb C property shall take place within 14 weeks of the date of these orders;
(e)The parties shall attend at the auction sale and, in the event that the reserve price is not reached, negotiate with the highest bidder or any other interested person to effect a sale of the Suburb C property at a price agreed between the parties or, failing agreement, accept the recommendation of the agent/auctioneer as to the acceptance of a price less than the reserve price provided that such recommended price is not more than 3 per cent below the reserve price;
(f)If the Suburb C property is not sold by auction on the first occasion that it is offered for sale by auction, then it shall be offered for sale by auction again every 6 weeks thereafter upon the same terms and conditions as stated above in this order until it shall be sold;
(g)Do all act and things necessary to procure that upon completion of the sale of the Suburb C property, the proceeds of sale be paid and disbursed in the following manner and priority:
(i)Firstly, in payment of the agent’s commission and the costs of the sale including advertising expenses and legal costs and expenses;
(ii)Secondly, in payment of monies to pay out and discharge the AMP mortgages;
(iii)Council rates and charges, water rates and charges and any strata levies including special levies; and
(iv)The balance of the proceeds of sale shall be paid to the husband.
(h)If on completion of the sale of the Suburb C property there are insufficient funds to discharge the AMP mortgages and the other expenses listed in this order, the husband shall be liable to pay and immediately pay any shortfall.
Pending completion of the sale of the Suburb C property, the husband shall:
(a)Keep the Suburb C property in good order and repair;
(b)Be responsible for payment of all statutory council and water rates and charges, AMP mortgage loan repayments, other utilities, insurances, outgoings and expenses in relation to the Suburb C property (“the outgoings”) and shall make all such payments as and when they fall due;
(c)Indemnify and shall keep indemnified the wife in respect of the outgoings in relation to the Suburb C property; and
(d)Neither party shall further encumber the Suburb C property without both parties’ prior written consent.
Pending completion of the sale of the Suburb D property, the wife shall:
(a)Keep the Suburb D property in good order and repair;
(b)Be responsible for payment of all statutory council and water rates and charges, utilities and insurances in relation to the Suburb D property (“the outgoings”) and shall make all such payments as and when they fall due;
(c)Indemnify and shall keep indemnified the husband in respect of the outgoings in relation to the Suburb D property; and
(d)Neither party shall further encumber the Suburb D property without both parties’ prior written consent.
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 Cuoco & Cuoco 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).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: SYC3518/2012
| Mr Cuoco |
Applicant
And
| Ms Cuoco |
Respondent
REASONS FOR JUDGMENT
Introduction
These are competing applications for adjustment of interests in matrimonial property arising from the breakdown of the parties’ marriage five years ago.
The Applicant is the husband, aged 45. He is in full time employment. He presently lives in an apartment (“the Suburb C property”), registered in his sole name in Suburb C, an eastern suburb of Sydney.
The Respondent is the wife, aged 35. She is presently employed but her position is temporary, finishing on 2 July 2017.[1]
[1] Affidavit of the wife filed 17/02/2017, Annexure HC10
There are two children of the marriage, now aged 10 and nine years respectively.
The wife lives in a property, jointly owned by the parties (“the owned E St property”), in Suburb D, a western suburb of Sydney.
The children live with their mother, and also with their maternal grandmother for several days per week. They spend time with their father in accordance with parenting orders made by consent.
The parties met in 2002 and married in a religious ceremony in 2004. That marriage was registered in mid-2005.
On 27 March 2012 the parties separated.
On 13 June 2012 the parties went through a religious divorce. There has been no application for a civil divorce. Accordingly, the parties are still legally married.
On 27 June 2012 the parties entered into final property orders by consent.
Two years later on 6 August 2014 those final orders were set aside on the application of the husband. The matters which gave rise to the setting aside of the consent orders have played a role in the current dispute and, at least in part, explained why a relatively straight forward piece of litigation was unable to be resolved.
On 25 August 2014 the husband filed an Initiating Application which commenced these proceedings, concluding with the hearing on 6 and 7 March 2017 which has given rise to these orders.
Chronology of Relevant Events
Parties live together in Suburb C property - late 2004
After their marriage in 2004, the parties began living together in the Suburb C property, which had been purchased by the husband, together with his former partner, almost three years previously.
There was a mortgage secured on the property which had been reduced by the husband to approximately $235,000 by the time of cohabitation.
Parties move to live with wife’s parents - mid 2006
After about 18 months the wife was due to give birth to the parties’ first child and at that point they moved out of the Suburb C property to live with the wife’s parents in Suburb D.
In 2006 the parties’ first child H was born.
The wife took 12 months maternity leave and used that time to study. She obtained further qualifications. She returned to work but soon after took a second period of 12 months of maternity leave in anticipation of the birth of the second child in 2007.
In July 2008 the wife again returned to work.
The parties probably remained living with the wife’s parents until December 2009 or January 2010; a total period of about three and a half years. Various periods of time had been asserted by the husband and by the wife’s mother but the husband conceded three and a half years during cross-examination.
I am confirmed in my view that the parties lived with the maternal grandparents for three and a half years by the evidence of the maternal grandmother that she had assisted with the care of the children from the time of their birth and to date, other than the 12 months that the family lived in the Suburb C property.
During the three and a half year period, renovation works were undertaken on the Suburb C property. The husband, the wife’s father and the wife’s brother carried out that work.
Parties return to Suburb C property – early 2010
Thereafter the parties and children moved into the renovated Suburb C property and lived there for about a year.
Parties move to rented property in Suburb D near wife’s parents - early 2011
In February 2011, after 12 months of living in the Suburb C property, the parties and the two children moved to a property at E Street in Suburb D (“the rented E Street property”) not far from the wife’s parents. They did so because they were able to obtain a higher level of rental for the Suburb C property than they were obliged to pay for the rented E Street property.
It was the wife who negotiated rent and commission at a level which meant a $400 difference between rent received from the Suburb C property and rent paid out for the rented E Street property.[2] The arrangement became that rent received from the Suburb C property was directed to rent payable on the rented E Street property.
[2] Affidavit of the wife filed 17/02/2017, pars 52 & 53
Parties buy property in Suburb D - late 2011
In about October 2011 the parties jointly agreed to bid at auction on the adjacent property at E Street, Suburb D (“the owned E Street property”) which appeared to be suitable, on the wife’s evidence, for development into a partial commercial premises; a business plan which the parties were contemplating to enable the wife to spend more time with their children. The wife had undertaken a TAFE course towards this plan.
In November 2011 the parties purchased the owned E Street property for $662,000. The purchase price, all associated purchase costs and additional funds of about $340,000 were borrowed. The husband asserts the funds were raised for general renovations of the property; the wife asserts for conversion into a commercial premises. In any event, the funds were not expended but sat in an offset account.
To that date the parties had maintained separate bank accounts but with the borrowing of the funds for the owned E Street property they opened joint loan accounts and the joint offset account with AMP Bank.
Work was undertaken by both parties and the wife’s brother, to bring the owned E Street property to a sufficient standard for it to be leased.
The owned E Street property is renovated and leased - early 2012
In February 2012 the owned E Street property was leased for a period of 12 months. The lease was a private one, the rent collected directly by the husband at $550 per week.
The parties separate
The month following these arrangements having been put in place, the parties separated. The husband moved out of the rented E Street property on 27 March 2012. The wife and children remained living in that property until September 2012.
The husband lived with his parents post-separation.
Final property orders by consent (the “2012 property orders”)
On 27 June 2012 the final property orders were made by consent in this Court.
Two days later on 29 June 2012 the husband sent a “Tenant Vacating Notice” to the managing agent of the rented E Street property. He also sent a notice requesting that rent which had been paid by the parties in advance, be refunded to him alone as the tenant of those premises.
I accept that the wife, even if she had been aware of the husband’s intention, did not consent to that notice being sent. She was living in the property with the children.
The husband also gave the tenant of the owned E Street property a “Notice to Vacate” the property. There was no prior consultation with the wife. She was relying on the rental income from the owned E Street property to pay the rent on the rented E Street property in which she was living.
By way of reaction the wife began withdrawing funds from the parties’ offset account in which there was about $330,000. The bulk of the funds were transferred within a few days into other accounts over which the wife had control.
A negotiated outcome in the Local Court
On 18 July 2012 the parties attended Court on assault charges. The Apprehended Violence Order (“AVO”) which had been put in place at the time of separation and also assault charges against the husband were dismissed.
The wife had sent a text message to the husband offering to withdraw her evidence in respect of the assault charges if the husband consented to and signed the property orders, which indeed he had done.
A fresh application by the husband
On 27 July 2012, nine days after the proceedings in the Local Court had been dismissed, the husband filed in this Court, an Application in a Case seeking to have the 2012 property orders set aside.
Wife and children move into owned E Street property
In September 2012 the wife and children moved out of the rented E Street property and into the owned E Street property.
Final parenting orders by consent (“the 2012 parenting orders”)
On 9 October 2012 orders were made by consent on a final basis about the parenting arrangements for the children.
On 5 November 2012 the wife filed a Response to the Application of the husband to set aside the 2012 property orders. She sought an order for dismissal.
This Application and Response was brought to conclusion two years later when the 2012 property orders were set aside by the Court.
On 14 January 2013 the wife returned the bulk of funds which she had withdrawn soon after separation, back into the loan account. She changed the authority to the bank to “both to sign”.
Husband acts to renovate Suburb C property
On 12 June 2013 the husband lodged a Development Application for improvements and renovations to the Suburb C property.
On 22 April 2014 the Development Application was approved.
2012 property orders vacated in 2014
On 6 August 2014 orders were made granting the application of the husband for the June 2012 property orders to be set aside.
On 25 August 2014 these proceedings were commenced by a fresh Application by the husband.
Husband returns to live in Suburb C property
In 2015 the husband moved out of his parents’ home and back into the Suburb C property.
In September 2015 the wife was terminated from her employment. She made an application for unfair dismissal and negotiated some partial financial compensation.
In November 2016 the wife commenced in her present employment on a part-time contract, for eight months.
The maternal grandmother has provided care for the children since that time at a level where the children have effectively been living with her, sleeping at her house to enable the wife to work the hours she does.
The Evidence
The documents relied on in respect of the application were as follows:
The husband [Applicant]
(a)Initiating Application filed 25/08/2014 modified by Minute of Order in Case Outline;[3]
[3] Exhibit 1
(b)Financial Statement of the husband filed 15/02/2017;
(c)Affidavits of the husband filed 15/02/2017;
(d)Affidavit of Mr I Cuoco filed 15/02/2017;
The wife [Respondent]
(e)Response filed 30/09/2014 modified by Minute of Order in Case Outline;[4]
(f)Financial Statement of the wife filed 17/02/2017;
(g)Affidavits of the wife filed 20/02/2017;
(h)Affidavit of Ms J filed 17/02/2017;
(i)Affidavit of Mr J filed 17/02/2017;
Balance Sheets
(j)Joint Balance Sheet dated 7 March 2017.[5]
[4] Exhibit 2
[5] Exhibit 18
Approach to alteration of interests in property
In considering applications for alteration of property interests and transfer of property the Court must:
(i)Identify the existing legal and equitable interests of the parties in property;[6]
(ii)Consider whether it would be just and equitable in the particular circumstances to make an alteration;
(iii)
If an alteration should be made, to consider the matters contained in
ss 79(4) and 75(2) of the Act in coming to an adjustment; and
(iv)Analyse and consider whether the adjustment under consideration would be just and equitable.
[6] Stanford & Stanford (2012) 247 CLR 108; Bevan & Bevan [2013] FamCAFC 116
Issues arising
The parties each acknowledge that it is just and equitable for there to be an adjustment of interests in property, especially as one of the two main assets is in the sole name of the husband and the other in the joint names of the parties. Both wish to be fully financially independent of each other.[7]
[7]Stanford & Stanford (2012) 247 CLR 108
Accordingly the issues for determination are as follows:
1.Contributions pursuant to s 79(4) and adjustment s 75(2)
The nature and extent of the contributions of each of the parties during the course of their seven year marriage and during the almost five years post-separation; and
The extent of adjustment in favour of the wife pursuant to s 75(2) of the Family Law Act 1975. The parties agree there should be such an adjustment but disagree as to the extent of that adjustment.
2.Family Violence
The wife asserts that she was the victim of family violence throughout the marriage. The husband denies that he was the perpetrator of domestic violence during the relationship.
On behalf of the wife the argument is advanced that the violence she allegedly experienced during the marriage has adversely affected her ability to make contributions to the children.
The assets and liabilities of the parties
The parties’ assets are set out in the joint balance sheet:[8]
[8] Exhibit 18
O’ship
Description
Wife’s value
Husband’s value
ASSETS
1 H F Street, Suburb C $ 1,250, 000 $ 1,250,000 2 J E Street, Suburb D $ 1,075,000 $ 1,075,000 3 H Funds held in K Bank $ 700 $ 700 4 H 10 Shares in G Pty Limited (10/520) $ 12,500 $ 12,500 5 H Company L Shares
@ $3.73 per share.$ 1,955 $ 1,955 6 H Furnishings and contents of husband’s Unit $ 2,000 $ 2,000 7 W Furnishings and contents in former matrimonial home in wife’s possession $ 2,500 $ 2,500 8 W Funds held in NAB accounts
…35 $180.00
…25 $ 0.00
…55 $ 0.50
…26 $ 0.20$ 181 $ 181 9 W Funds in K Bank $ 10 $ 10 Total
$ 2, 344,846
$ 2,344,846
ADDBACKS 10 W Legal fees paid $ 300 $ 11 H Legal fees paid $ Unknown $ Total
$ 300
$ 0
LIABILITES 12 J Mortgage $ 1,012,430 $ 1,012,430 13 H Loan to Mr I Cuoco $ Nil $ 20,000 14 H Outstanding strata levies – Suburb C Unit $ 87,000 $ 87,000 15 W Loan to Ms J $ 33,250 $ Nil Total $ 1,132,680 $ 1,119,430 SUPERANNUATION 16 H Company L Superannuation Fund Accumulation $ 209,381 $ 209,381 17 W First Choice Employer Super Fund Accumulation $ 104,236 $ 104,236 18 W C-BUS Accumulation $ 772 $ 772 19 H Australian Eligible Rollover Fund Accumulation $ 10,700 $ 10,700 Total $ 325,089 $ 325,089 FINANCIAL RESOURCES 20 H 148 days of Long service leave - net $ 24,178 $ 21 H 380.347 hours accrued annual leave- net $ 8,900 $ Total $ 33,078 $ 0 Notes
In relation to any disputed items and all disputed values for items a party should state, using the item number as a heading:
1. Why an item should not be on the balance sheet.
2.Whether expert evidence is required to resolve a dispute as to value and what steps have been taken to agree upon and appoint a single expert.
3.Whether documents in the possession of the other party need to be provided before the value of an item can be agreed.
4. Any other comment a party wishes to make in relation to the disputed item.
Item No WIFE’S NOTES 20
(LSL) Husband’s basic hourly rate is $28.4884 gross. Approximate gross pay for 148 days (29 weeks 3 days) for a 35 hour week = $29,514.16 without holiday loading and net $24,178.16 rounded to $24,178.00. No account is given by the husband of the husband’s accrued 148 days of long service leave
21
(AL) Husband’s basic hourly rate is $28.4884 gross. Approximate gross pay for 380.347 hours (10 weeks 30.347 hours) for a 35 hour week = $10,835.54 without holiday loading and net $8,880.10 rounded to $8,880.00. No account is given by the husband of the husband’s accrued 380.347 hours annual leave
Analysis of Balance Sheet
Items 10 and 11 are removed. No values were ascribed or properly ascribed.
Items 13 and 15 are removed. There was no agreement about the loans. They will be taken into account as discretionary matters between each party and their respective families.
Items 20 and 21 are removed. The value of long service leave and accrued leave will be taken into account under s 75 of the Act.
Accordingly, the net asset pool is $1,570,505.
Contributions
INITIAL
When the parties began living together in November 2004 their assets and liabilities were as follows:
Husband
Assets
Value
1
Suburb C Property
$ 465,000
Less outstanding mortgage
$ 235,000
Net equity
$ 230,000
2
Car
$ 7,500
3
Cash payment for an insurance claim in respect of a German car
$ 37,000
4
Savings
$ 14,600
5
Superannuation interests
$ 38,000
Net total
$ 327,100
Wife
Motor vehicle, recently purchased not long before cohabitation began
$ 16,000
Savings
$ 1,000
Superannuation
$ 5,000
Less
Outstanding credit card debt
$ 1,000
Net total
$ 21,000
On behalf of the wife it was raised that the cash payout from the sale of the German motor vehicle should not be included as an interest of the husband’s. His evidence was that the monies were applied to the reduction of the mortgage. There was no evidence of lump sum reduction but nevertheless, there is no evidence to suggest that the money was applied other than to household expenses and I have included the payment in the assessment of initial contributions.
On a percentage basis it makes very little difference. In approximate terms the assets brought to the relationship favour the husband in the order of a ratio of 95/5 per cent.
The parties agree that the initial contributions are almost all those of the husband. Further, the Suburb C property provided a home for the parties for the first 18 months of their married life.
During the course of the marriage
Between November 2004 and March 2012 the parties concede that each worked and made a financial contribution through paid employment; the husband full time and also during the period when the parties lived with the wife’s parents, working overtime and extra shifts.
The wife was in paid employment other than the two periods of a year when she was on maternity leave.
The parties also concede that they were both involved in the care of the children and further, that the wife and her parents, particularly the maternal grandmother, provided the majority of care for the children.
Just a few months before the separation of the parties there was a borrowing of approximately $1.1 million to buy and improve a family home, the owned E Street property. This debt was secured both on the Suburb C property and on the owned E Street property. The financing discharged the mortgage previously held by the husband alone and created joint debt.
I accept the submission of counsel for the wife that there was a greater contribution by the wife during this period despite the fact that both parties, in my view, were working to capacity, both in their role as income earners and as parents.
For three and a half years both parties were released to work at the level they did by the provision of a home by the maternal grandparents which was rent free. This indirect financial contribution on behalf of the wife is a matter of significance.
During this time household tasks were undertaken to a great extent by the maternal grandmother. There was always availability of the maternal grandparents to provide care overnight for the children, meals and other aspects of domestic family life. This was also a substantial contribution to the welfare of the family made on behalf of the wife
There was also a contribution by the wife’s family to the renovation work undertaken on the Suburb C property which was left unleased to facilitate that work.
After the parties spent a year living in the Suburb C property the property was leased and the husband collected that rent. His taxable income was reduced by his claim for interest on the whole of the loan. His income was negatively geared in respect of the Suburb C property.
It was conceded on behalf of the husband that by the end of the marriage there had been sufficiently significant contributions by and on behalf of the wife to change the assessment of contributions to 60/40 favouring the husband. It was an appropriate concession to make.
Post-separation contributions
Post-separation the children have lived with their mother, and to a great extent, with their maternal grandparents.
The 2012 parenting orders provide for the children to spend time with the father from after school Tuesday to after dinner on Wednesday each week and Saturday afternoons for a period of six hours. There is no block holiday time, rather there is special occasion time and three overnight occasions during each school holiday period.
The majority of time is spent pursuant to the orders is with the mother or as she directs. In the five years since separation the wife, with the substantial assistance of her parents, has provided that care.
She has also worked at a level which means that the child support payable by the husband has been assessed at $115 per week. It is a matter of some significance. Both parties have contributed to the mortgage; the husband at a somewhat higher level, although there was a concession that payments had been made out of a joint account.
The husband has since 2015 lived in the Suburb C property which was until that move tenanted. The wife has lived in the owned E Street property with the children.
I consider that the contributions at the end of the five years since separation should reflect the greater contribution made by the wife by an adjustment to a ratio of 52.5/47.5 favouring the husband.
Relevant Factors Under S 75(2)
The parties are aged 45 and 35 respectively.
There is no evidence to suggest that they are other than in good health.
The husband has been employed by his current employer since the mid-1990s. A period of between 20 – 25 years. He has security of employment. He has accrued long service leave and accrued annual leave which provide a backstop for any periods of time which he may need to take off work, with a current value of $33,078.[9]
[9] Exhibit 18, items 20 and 21
I note that the husband did not refer to or disclose those financial resources. I accept the analysis undertaken on behalf of the wife based on payslips produced by the husband.[10]
[10] Exhibit 12
The husband on present indications has the physical and mental capacity to go on in gainful employment, probably in his current occupation.
The husband lives in the Suburb C property and has done so for about eighteen months. However, post-separation he lived with his parents and rented out the Suburb C property. If he chose to live that way again, the husband has the opportunity to again rent out the property. His current income is approximately $69,000 per annum gross. The rental income from the Suburb C property, when he was receiving it, was, in 2014, $2,500 per month net of all expenses and costs[11] which would provide an additional $30,000 of income at least.
[11] Exhibit 13
The wife has a current contract for employment due to finish in July 2017 She has a disclosed salary of $1,600 per week gross, approximately $83,000 per annum. I accept the submission on behalf of the husband that the wife is likely to find further work as she has done in the past. She has been consistently in employment and at times when she was not in paid employment, (maternity leave on two occasions and after a contested termination of employment), she occupied herself by buying and selling goods at a profit and by studying to improve her qualifications. However, she does not have security of employment and she does have the obligation to provide the substantial majority of care of the children.
I reject the submission made on behalf of the husband that there should be no adjustment in favour of the wife because of this assistance by the maternal grandparents. The legal obligation to provide care for children falls on parents, not on grandparents.
It is the evidence of the maternal grandmother that she would go on providing assistance with the children as at current levels for as long as she could, for as long as it was needed. I do not doubt her willingness to do so. Nevertheless, in her affidavit she reflects on the fact that she is diabetic and insulin dependent, that she does volunteer teaching a few times per week, and further, that she is the carer for her husband. She also said, “I also have other grandchildren and I want to be able to spend time with those grandchildren too’.
The wife is released by her mother’s assistance to earn at the level she does as was the case for periods during the marriage. Her income levels affect child support assessments which is reflected in the current payment made by the husband of $115 per week.
The wife has a good earning capacity but I cannot assume that she will be able to maintain her current income level without her mother’s help and I cannot assume that her mother’s help will be available for the next nine years, until both children have turned 18.
There should be an adjustment in favour of the wife in respect of this aspect of disparity in security in employment, income and financial resources. Also, there should be an adjustment in respect of the wife’s obligation, by consent orders, to provide the majority of care for the two children.
I consider there should be an adjustment for future needs of 12.5 per cent in favour of the wife on account of these factors which would change the ratio of adjusted contributions to 60/40 in favour of the wife.
Family Violence
Another factor raised by the wife is the impact of family violence alleged by her. The wife sets out in considerable detail in her affidavit[12] incidents arising in the marriage which she asserts constitute domestic violence and further, that such incidents adversely affected her ability to make contributions and that her task was made more arduous by reason of family violence.
[12] Affidavit of the wife filed 17/02/2017, pars 124-154
Certainly the marriage ended with an interim Apprehended Domestic Violence Order (“ADVO”) being issued by the police on 27 March 2012. It was the catalyst for the husband to move out of the rented E Street property in which the parties were living with the children.
On that occasion the wife asserts that the husband grabbed her by the arm, pulled her out of her chair, and pulled her into the garage at the front of the house. The husband concedes that he went into the garage with the wife on that occasion but denied that he was restraining her in the garage, rather she was willing to be there with him. The husband concedes that police were called and not by him and not by the wife. I therefore accept the evidence of the wife that she spoke to a neighbour who said, “[Ms Cuoco], are you ok? I heard screaming, shall I call the police?” to which she answered, “yes”.[13]
[13] Affidavit of the wife filed 17/02/2017, par 126
The police attended the home and took statements. The wife asserts that the police took photographs of her injuries. None were produced in these proceedings. The husband denied there were any injuries. The husband was compelled to leave the home as a result of the provisional ADVO.
The wife asserts that the husband was charged with assault. There is no evidence before me about criminal charges however both parties agree that the matter came before the Local Court on 18 June 2012 where whatever charges had been made and the application for a final ADVO were dismissed.
The wife said that she was put under emotional pressure by the husband to allow him to return to the home to live and also not to attend Court. Both parties did attend Suburb M Local Court on 18 June 2012.
The wife said, and was unchallenged on this point, that the hearing in the Local Court commenced and part-way through her cross-examination the proceedings were stopped. The wife asserts that she was misunderstood and that when she was asked about an exchange between the parties she had said “yes” when asked the question if she said “if you accept the offer, the police charges will go away”.[14]
[14] Affidavit of the wife filed 17/02/2017, par 132
The wife gives an explanation that she did not mean by that affirmative answer that if the husband signed the property documents that she would not go ahead with the Local Court matter, rather that she had meant that if the husband signed the property documents that the property matter would be sorted out and would go away.
Clearly the Local Court interpreted events otherwise and the police prosecutor told the magistrate that the police were withdrawing the charge.
There were other incidents identified by the wife as having taken place during the marriage. The wife asserted that the husband at times addressed her as “you f…, on several occasions he had hit me in the back, slapped my face, dragged me through the house whilst pulling my hair, punched me, kicked me out of bed, just to list a few”. These assertions are so general and unspecific as to detail and time that no finding could safely be made about them.
The wife alleges on 7 December 2014, about three weeks after they were married, the husband took the wheel during the course of an argument, and deliberately caused the car to collide with a barrier. When police attended the accident, the wife agreed with what the husband told the police, that is, that the accident had been caused by her losing control of the car. She was given an infringement notice for negligent driving with a $500 penalty.
The wife asserts that the husband thanked her for not telling the police what had happened and paid the penalty. The husband denied that an incident took place in that way. In fact the husband when taken through the incidents denied the great majority of them and so I am left with an allegation and a denial without corroboration in respect of several incidents of alleged aggression and assault. There is no corroborating material other than the wife having attended a psychologist post-separation for counselling for what she described as a violent and abusive relationship.
In respect of an incident in October 2009 the husband agreed that there had been an event. The parties, their children and the paternal uncle and his family were on holidays together. They hired a mini-bus so the two families could travel together. The parties had an argument. The wife said the husband grabbed her hair with both hands, pulling up and down quite strongly, it hurt and she called out “stop it”. She was, she said, upset and in pain.
The husband conceded that there was such an incident that he did touch his wife’s hair but denied pulling it. He asserted that the wife had tried to strike him and he responded in that way and that she shouted because she wanted attention from people in the van.
This evidence is corroborated by the wife’s brother to some extent. He heard the husband say to the wife, after becoming angry, “I will fucking put your head in the water.” The statements made by the paternal uncle suggest that he heard the husband complaining about his lack of interest in the holiday venue and then, in the minibus, that the husband “Grabbed at [Ms Cuoco’s] hair with both hands, pulling up and down quite intensely, [Ms Cuoco] was bouncing off the seat. I remember thinking when I saw this that she was like a ragdoll without any control being thrown around.”
The wife’s brother did not intervene. He had his younger son sitting on his lap. He asserts that his sister was screaming and appeared to be in pain. He directed the husband to let go of the wife’s hair. The incident lasted for about a minute and occurred in the presence of the children of the marriage and the paternal uncle’s children.
The wife’s brother was not challenged on his evidence that on the following day he spoke to the husband and said to him, “No matter what a woman does, you never lay a hand on her even if it means you walk out of the room when you’re angry or just go calm down, just do that but don’t touch women” and that the husband responded, “This was the first and last time I have ever done that.” I accept the wife’s evidence that the husband pulled her hair on that occasion and forcefully.
In respect of an incident in 2006, shortly before the birth of the first child, there was an argument over the husband having agreed to cook dinner and then resiling from it. The parties were by then living with the wife’s parents.
I accept the evidence of the maternal grandmother that she heard the husband say to the mother “F… you [Ms Cuoco]”, that she heard her daughter scream out “Mum come, he’s gonna hit me.” That she walked to and stood outside their bedroom door and saw the husband standing with his back to the wife, she was in the corner of the room, looking scared, cowering into the corner and bent over. The husband left the room.
In considering these matters I note that the wife set out her allegations of abuse and that the husband did not raise anything in response. He was taken to each allegation in cross examination and responded to several matters with a complete denial and as otherwise set out above.
I conclude that on at least two occasions there were incidents which constituted family violence.
The wife has been referred by her GP to a psychologist whom she has continued to consult from time to time.[15]
[15] Affidavit of the wife filed 17/02/2017, par 154 & Annexure HC26
However there is no evidence that suggests that the impact on the wife, adversely affected her contributions. There is nothing to suggest that her relationship with the children, her ability to provide for their care, her ability to attend at work and to otherwise make plans and manage family life in the way that she did changed in a detrimental way.
For that reason, I have considered and taken into account the incidents of family violence as a proposed factor for adjustment under s 75(2) of the Act. Unpleasant, painful and humiliating as they no doubt were for the wife, I have concluded that there is not a proper basis for further adjustment in this regard.
ANALYSIS
The interests in property and liabilities of the parties at the date of hearing are as set out in the Joint Balance Sheet which became Exhibit 18. The net balance of the asset pool is $1,570,505.
The parties agree that the husband should retain the Suburb C property in his sole name and that the wife should become the sole proprietor of the property at E Street, Suburb D. They also agree that the husband should take over the mortgage and refinance the property. The dispute between them is what cash adjustment should be made to reflect their respective proposals.
The adjustment proposed on behalf of the husband is that the wife make a cash payment to the husband of $531,405. This equates to a division of 57.5/42.5 per cent in his favour.
The proposal on behalf of the wife is that she make a payment to the husband of $75,872. This equates to a division of 70.5/29.5 per cent in her favour.
I have concluded that the appropriate ratio reflecting the parties’ contributions adjusted by s 75(2) of the Act is 60/40 division in favour of the wife.
The husband will retain the following assets:
1 F St, Suburb C $ 1,250,000 3 Funds held in K Bank $ 700 4 10 Shares in G Pty Limited (10/520) $ 12,500 5 Company L Shares @ $3.73 per share. $ 1,955 6 Furnishings and contents of husband’s Unit $ 2,000 16 Company L Superannuation Fund $ 209,381 19 Australian Eligible Rollover Fund $ 10,700 Gross Total $ 1,487,236
The husband will pay the following:
14 Strata levies $ 87,000 12 Refinance of the mortgage $ 1,012,430 Net Total $ 387, 806
Plus:
Cash adjustment from the wife $ 240,396 Total net sum retained by husband $ 628,202
The wife will retain:
2 E Street, Suburb D $ 1,075,000 7 Furnishings and contents in former matrimonial home in wife’s possession $ 2,500 8 Funds held in NAB accounts
…35 $180.00
…25 $ 0.00
…55 $ 0.50
…26 $ 0.20$ 181 9 Funds in K Bank $ 10 First Choice Employer Super Fund $ 104,236 C-BUS $ 772 Total $ 1,182,699
Less:
Payment to the husband: $ 240,396 Total $ 942,303
Is The Outcome Just and Equitable?
Each party will retain assets as set out above. The husband will refinance both loans. His indebtedness will be reduced by a cash sum paid by the wife. The wife will no doubt have to borrow, from a bank or family, the funds to pay out the husband’s interest. She will then be able to retain the owned E Street property subject to that debt.
Each party will have legal costs to pay as disclosed in Cost Disclosure letters.[16]
[16] Exhibit 23
The husband owes a debt of $20,000 to his father. The wife owes a debt of $33,000 to her mother. Each family has provided significant support in the past by way of lending money which has been repaid and no doubt arrangements will be made between each of the parties and their families about how and when those debts will be repaid.
In those circumstances I am satisfied that the outcome is a just and equitable one.
Orders are made accordingly.
I certify that the preceding one hundred and thirty seven (137) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 9 June 2017.
Associate:
Date: 7 June
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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Damages
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Injunction
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Remedies
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Res Judicata
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