Daleel & Daleel
[2023] FedCFamC2F 293
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Daleel & Daleel [2023] FedCFamC2F 293
File number(s): PAC 3063 of 2021 Judgment of: JUDGE MYERS Date of judgment: 17 March 2023 Catchwords: FAMILY LAW – property proceedings. Legislation: Child Support (Assessment) Act 1989
Family Law Act 1975 (Cth), Part VIIIAB, ss 4B, 75(2), 79
Cases cited: Kennon and Kennon [1997] FamCA 27
Kessey v Kessey (1994) FLC (92-495)
Stanford v Stanford [2012] HCA 52
Division: Division 2 Family Law Number of paragraphs: 63 Date of hearing: 6-7 September 2022 Counsel for the Applicant: Mr Friedlander Solicitor for the Applicant: Christina Lam & Associates Counsel for the Respondent: Mr Liederman Solicitor for the Respondent: Ark Law Lawyers ORDERS
PAC 3063 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DALEEL
Applicant
AND: MR DALEEL
Respondent
order made by:
JUDGE MYERS
DATE OF ORDER:
17 MARCH 2023
THE COURT ORDERS THAT:
1.That within 28 days of the date of these Orders, each party shall do all such things and execute all documents necessary to list the property situated at and known as B Street, Suburb C (DP…) (“the property”) for sale by public auction on the first Saturday four (4) weeks after the property is for listed for sale.
2.For the purposes of implementing the sale of the property in accordance with Order 1 above the parties shall:
(a)Instruct such Real Estate Agent as agreed between the parties and where the parties are unable to agree on the agent, then the Wife shall nominate three (3) real estate agents and the Husband shall thereafter select one of those agents (“the Agent”);
(b)Instruct such solicitor or conveyancer as nominated by the Husband (“the Conveyancer”);
(c)Sign all documents requested by the Agent in relation to listing the property for sale by public auction in accordance with these Orders, except a contract or agreement for sale which has not been authorised by the other party;
(d)Not confer on any other Agent, without the consent of the other party, any right to any sole or exclusive agency in respect of the property or to any commission;
(e)Agree upon a reserve price for the auction and failing agreement the reserve price shall be $830,000;
(f)Cooperate in every way with the Agent in relation to the marketing of the property including making the keys readily available, allowing inspection of the property at all times reasonably requested by the Agent and ensuring the property is clean, neat and in good condition at the time of inspection by any prospective buyer.
3.Where the property fails to sell at the first auction contemplated in these Orders then the said property shall be publicly auctioned every fourth Saturday following the preceding auction until such time as the property is sold and the reserve price for each subsequent auction shall be two (2) percent less than the reserve price for the preceding auction.
4.The parties shall both be entitled to register as bidders with the real estate agent conducting the auction and thereafter bid at the auction.
5.Where one of the parties is the successful bidder at the auction, that party has liberty to restore the matter before the Court for the purposes of seeking ancillary orders that would allow the transfer of one party’s interest in the property to the other without being liable for the payment of stamp duty on the transfer.
6.That upon completion of the sale of the property, the parties shall do all acts and things and sign all necessary documents to direct the proceeds of the sale in the following manner and priority:
(a)In payment of the agent’s commission, marketing and advertising costs, auctioneer’s fees and any other expense properly incurred in respect of the sale of the property;
(b)In payment of any council and water rates and maintenance levies outstanding in respect of the Property;
(c)In payment of the legal costs and disbursements of the sale to the Conveyancer;
(d)Pay the amount of $3000 to the Child Support Agency in respect of the liability owed to the Wife by the Husband;
(e)In payment of the balance then remaining as to 40% to the Wife and 60% to the Husband;
(f)From the Wife’s share at order 6(e) above pay to the Husband the sum of $178.80 (being the amount necessary to see the Husband receive a 60% adjustment noting the value of the property held by the parties in their individual names).
7.That except as specifically provided for in these Orders to the contrary, the Wife is declared the sole legal owner of, and the Husband has no interest in:
(a)The Wife’s superannuation;
(b)The Wife’s bank accounts;
(c)The personal belongings, furniture, furnishings and effects in the Wife’s possession;
(d)Any other property or financial resource in the Wife’s possession or control.
8.That except as specifically provided for in these Orders to the contrary, the Husband is declared the sole legal owner of, and the Wife has no interest in:
(a)The Husband’s superannuation;
(b)The Husband’s bank accounts;
(c)The Husband’s motor vehicle;
(d)The personal belongings, furniture, furnishings and effects in the Husband’s possession; and
(e)Any other property or financial resource in the Husband’s possession or control.
9.That both the Wife and the Husband hereby release the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.
10.That in the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders, then pursuant to Section 106A Family Law Act that the Registrar of the Federal Circuit and Family Court of Australia, Parramatta Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument or Real Property transfer in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.
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 Daleel & Daleel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MYERS J:
This is a final property decision in the matter of Daleel & Daleel.
These proceedings were originally commenced by Ms Daleel, (Wife) against Mr Daleel (Husband) as parenting and property proceedings.
The parenting aspect of the proceedings was concluded with the entry of consent orders on 7 September 2022 which in summary provided (in regard to the three children under the age 18 years):
(1)That X (born in 2009, currently 13 years of age, hereafter “X”), live with the Wife and spend time with the Husband in accordance with her wishes.
(2)That Y (born in 2011, currently 11 years of age, hereafter “Y”) and Z (born in 2010, currently 12 years of age, hereafter “Z”)) live with the Husband and spend time with the Wife:
(a)Six (6) nights a fortnight commencing on Friday after school,
(b)Special days including dates during Eid and Mother’s day.
In addition, two of the parties’ children, Mr D (born in 2002, currently 19 years of age, hereafter “Mr D”) and E (born in 2001, currently 21 years of age, hereafter “E”) live with the Husband.
It is also understood that another of the parties’ children, Ms F (born in 1999, currently 23 years of age, hereafter “Ms F”) lives with the Wife.
The Wife sought the following property orders at that are contained within her amended Application for Final Orders filed 29 July 2022:
(1)That within 56 days of the date of these orders each party shall do all such things and execute all documents necessary to transfer the property situated at and known as B Street, Suburb C (DP…) ("the property") to the sole name of the Respondent at the cost of the Respondent; and
(2)Simultaneously with the transfer pursuant to order 1 above, the Respondent shall pay all monies necessary to discharge and remove all mortgages, charges, encumbrances and all other liabilities, whether in law or equity for which the Applicant bears any actual or contingent liability at the date of these orders.
(3)Simultaneously with the transfer pursuant to order 1 and performance of the obligations set out in orders 19 and 20 (Wife’s orders as numbered in her Amended Application), the Respondent shall pay to the Applicant the sum of $480,000 (Four hundred and eighty thousand) as she directs.
(4)Pending settlement of the transfer and refinance pursuant to Order 1 above the Respondent shall be solely responsible for payment of the mortgage repayments, water and electricity usage, house and contents insurance, water and council rates and other expenses relating to the property and shall indemnify the Applicant with respect to any payments made or owing.
(5)That in the event the Respondent is unable to comply with Order 1, the Applicant and Respondent shall do all things and acts and sign all documents necessary to cause the property to be sold by private treaty at the best possible price and at the earliest possible date.
(6)For the purposes of implementing the sale of the property in accordance with Order 5 above the parties shall:
(a)Instruct such Real Estate Agent as nominated by the Respondent (“the agent”);
(b)Instruct such solicitor or conveyancer as nominated by the Respondent (“the conveyancer”);
(c)List the property for sale by private treaty at such price as nominated by the Respondent, in consultation with the Agent, and sell the property at such price as nominated by the Respondent, in consultation with the Agent;
(d)Sign all documents requested by the Agent in relation to listing the property for sale in accordance with these Orders, except a contract or agreement for sale which has not been authorised by the other party;
(e)Not confer on any other Agent, without the consent of the other party, any right to any sole or exclusive agency in respect of the property or to any commission;
(f)Cooperate in every way with the Agent in relation to the marketing of the property including making the keys readily available, allowing inspection of the property at all times reasonably requested by the Agent and ensuring the property is clean, neat and in good condition at the time of inspection by any prospective buyer.
(7)That upon completion of the sale of the property, the parties shall do all acts and things and sign all necessary documents to direct the proceeds of the sale in the following manner and priority:
(a)In payment of the agent's commission, marketing and advertising costs, auctioneer's fees and any other expense properly incurred in respect of the sale of the property;
(b)In payment of any council and water rates and maintenance levies outstanding in respect of the Property;
(c)In payment of the legal costs and disbursements of the sale;
(d)In payment in the amount of $480,000 to the Applicant:
(e)In payment of the balance then remaining to the Respondent.
(8)That except as specifically provided for in these Orders to the contrary, the Applicant is declared the sole legal owner of, and the Respondent has no interest in:
(a)The Applicant's superannuation;
(b)The Applicant's bank accounts;
(c)The personal belongings, furniture, furnishings and effects m the Applicant's possession; and
(d)Any other property or financial resource in the Applicant's possession.
(9)That except as specifically provided for in these Orders to the contrary, declared the sole legal owner of, and the Applicant has no interest in:
(a)The Applicant's superannuation;
(b)The Applicant's bank accounts;
(c)The personal belongings, furniture, furnishings and effects m the Applicant's possession; and
(d)Any other property or financial resource in the Applicant's possession.
(10)The Wife also sought orders that provided that the parties release one another from any claims or demands and that the Court make an order pursuant to s.106A of the Family Law Act.
The Husband sought the following property orders as contained within his Amended Response filed on 29 July 2022 that provides:
(1)That an order by way of alteration of property interests pursuant to s.79 be made in the following terms in order to address the consequences of the breakdown of the marital relationship and the injustice that would occur given the circumstances of the relationship if legal and equitable title were not altered.
(2)That as between the husband and wife and subject to the below orders, the husband and wife shall each respectively retain all interest in and entitlement to:
(a)Life insurance policies and superannuation funds standing in his/her name respectively;
(b)Shares in a public or private companies;
(c)Entitlements under a trust;
(d)Vehicles registered in the name of the respective party at the time of the making of these orders.
(3)That each party is to retain personal liabilities, including mortgages, personal loans, car loans, personal debts, tax debts and any other liability in the sole name of the respective party at the time of the making of these orders.
(4)That within 56 days of the date of these orders each party shall do all such things and execute all documents necessary to transfer the property situated at and known as B Street, Suburb C (DP…) (“the property”) to the sole name of the Respondent, the cost of which is to be shared equally between the Applicant and Respondent.
(5)Simultaneously with the transfer pursuant to order 4, the Respondent shall pay to the Applicant the sum equal to 20% of the value of the property (the court accepts that the monetary figure contained in the Husband’s Amended Response was not sough or indeed correct as the former matrimonial home was valued pursuant to orders made at the conclusion of the hearing and the sum that was said to represent 20% is calculated on a value that is different to that when the Husband’s response was filed. The court has therefore omitted the monetary figure where it would be unfair to the Husband and Wife to do so), Pursuant to Part VIII of the Family Law Act 1975.
(6)That any and all declarations necessary pursuant to Part VIII of the Family Law Act 1975 be made to give effect to orders 4 and 5.
(7)That each party is to pay their respective costs of and incidental to these proceedings.
(8)That if either party refuses or neglects to sign, within 7 days of a written notice to do so, any documents necessary to effect the terms of these orders, the Registrar or Deputy Registrar of the Federal Circuit and Family Court of Australia at Parramatta is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act 1975 to execute such documents on behalf of such party.
(9)That the Court make any other orders it deem fit.
Background:
The Husband was born in 1967 and the Wife was born in 1970.
In about 1997 the Wife and Husband met and were married in Country G.
In 1988 the parties’ eldest child Ms H was born.
The Husband correctly gave evidence (noting the documents forming exhibit “E”) that in about 1999 the Parties purchase the property at J Street, Suburb K for $73,000.00. It is the Husband’s evidence that the funds for the purchase of the J Street, Suburb K property were given to the Husband by his father as an early inheritance. The Wife essentially failed to accept the Husband’s evidence on this point.
The Wife was asked a series of questions about the initial purchase of the house in J Street, Suburb K and the source of the fund to purchase J Street, Suburb K and then the former matrimonial home being B Street, Suburb C upon the sale of J Street, Suburb K. That cross examination can be found at pages 34 and 35 of the transcript dated 7 September 2022 that provides:
Mr Liederman: You’ve said the $180,000 that came for the [B Street, Suburb C] house - - -?
Wife: ---Yes.
Mr Liederman: - - - was from the sale of the previous house, which I am correct is the [J Street, Suburb K] house?
Wife: ---Yes.
Mr Liederman: Yes?
Wife: ---Yes.
Mr Liederman: And you’ve said previously in cross-examination, mere minutes ago, that that was the father’s father’s house and that that was by form of an inheritance?
Wife: ---The house in [Suburb L] belonged to his father. His father sold that house for 140. He gave [Mr M] 80 – I don’t exact – the exact amount I don’t remember. He gave the brother 70, and we took 70 or 80 – 60 or 80. I’m not sure exactly.
Mr Liederman: And when did this happen?
Wife: ---That was in – when we bought the [J Street, Suburb K] house.
Mr Liederman: Which was when?
Wife: ---We bought it in – let me have a think. 2001, 2003 – I lived with my in-laws for three years and then we moved to [J Street, Suburb K] house. So that was about 2003. We paid maybe 70,000, 65,000, if I remember right.
The Court accepts that the purchase of J Street, Suburb K was funded from monies the Husband’s father advanced him as an early inheritance. In other words the monies were given to the husband by his father as a gift.
In 1999 Ms F was born. In 2001 E was born.
In 2002 Mr D was born.
The Court accepts (noting the documents forming exhibit “E”) that in 2008 the property at J Street, Suburb K, was sold for $172,000 and that in 2009 the property at B Street, Suburb C was purchased for $250,000, with a Mortgage of $85,000 to Company N.
In 2009 X was born.
In 2011 Y was born.
In 2012 Z was born.
The parties agree that the mortgage was paid off B Street, Suburb C by about 2012 from monies earned from the Husband’s employment.
The Husband alleges the Parties separated on 17 July 2019 at about which time the Wife took out the Country G equivalent of an AVO against the Husband.
It appears agreed that in November 2019 the Wife and Husband permanently separated with the Wife then returning to Australia with the children.
In 2020 the Husband returned to Australia.
The Husband gave evidence that in 2020 the Wife Islamically married a man called Mr O. On 11 May 2020 all children from the relationship other than Ms F move in with the Husband.
On 8 June 2020 the Husband took X and the other children to see the Wife at which time X remained living with the Wife.
Sometime prior to September 2022 the Wife and Mr O Islamically divorce.
On the topic of the parties’ earnings and their earning capacity the Wife indicated in cross examination that she earned on average about $600 per week being money earned from Employer P and monies she received as an educator. While the Husband suggested that he was diagnosed with a bulged disc four years ago had not worked in the last four years as a tradesman he had worked as a transport worker. The Husband went on to give evidence that he would be able to go back to work as a transport worker in the future and that he was not working at the time of the hearing as his father has passed away, was caring for his mother and had applied for a carer’s pension.
The Husband was asked in cross examination how long he thought it would be before he will be in a position to resume work. The Husband suggested “two months” and that when he returned to work he would do some type of transport job.
There was no suggestion in the proceedings that the Wife wanted to keep the former matrimonial home or indeed had the financial capacity to do so. The Husband sought in his final orders that he retain the former matrimonial home and pay the Wife out.
In cross examination it was suggested to the Husband and he agreed that he did not have any borrowing capacity.
Mr Liederman: [Mr Daleel], at the very commencement, you were asked about – of the cross-examination, you were asked about your current borrowing capacity and you made reference to your sons. Can you tell me – can you tell the court what you were going to say about your sons?—
Husband: -Well, I did inquire about this to the bank about my borrowing capacity.
Mr Liederman: Yes? ---
Husband: And they said I was a liability, but my sons could borrow the money.
The Court finds that the neither the Husband or the Wife have the financial capacity to purchase the former matrimonial home at B Street, Suburb C noting the agreed value of $830,000 where the parties agreed to that value based on the contents of the Husband’s valuation dated 21 November 2022 (that forms exhibit “F” in the proceedings) in respect of the former matrimonial home at B Street, Suburb C.
Where the Husband had given evidence that perhaps his sons “could borrow the money” the Court finds that it is just and equitable to at least give the Husband the opportunity to try and retain the former matrimonial home but not to the detriment of the Wife waiting around for some indeterminate length of time to receive her adjustment of the property of the parties. As a means of balancing the parties competing interests the Court will afford both parties the opportunity to register as bidders and bid for the purchase of the Former matrimonial home at a public auction of the said home.
There are financial benefits in one of the parties in proceedings before this Court retaining an item of real property and receiving the transfer of the other parties share. That benefit includes receiving a transfer that is not liable for stamp duty. In order to preserve that benefit the Court will allow either party, should they be a successful bidder, to relist the proceedings seeking ancillary orders, if necessary, that would alleviate the liability for the payment of stamp duty on the transfer of one party’s interest in the former matrimonial home to the other.
The Court finds the assets and liabilities of the parties as follows:
Description
Ownership
Applicant’s Value
Respondent’s Value
ASSETS
1
B Street, Suburb C
Joint
$830,000
$830,000
2
Bank Account
Husband
$2221
$2221
3
Motor Vehicle 1
Husband
$8000
$8000
4
Household Contents
Husband
$3000
$3000
5
Bank Account
Wife
$3000
$3000
6
Motor Vehicle 2
Wife
$7500
$7500
Assets Subtotal
$853,721
$853,721
LIABILITIES
7
Child Support Debt
Husband
N/A
$3000
Liabilities Subtotal
$0
$3000
SUPERANNUATION
Name of Fund
Type of Interest
Member
Applicant’s Value
Respondent’s Value
8
Accumulation
Husband
$2082
$2082
9
Accumulation
Wife
N/A
N/A
Superannuation subtotal
$2082
$2082
TOTAL (assets – liabilities)
$853,721
$850,721
TOTAL (assets – liabilities + superannuation)
$855,803
$852,803
FINANCIAL RESOURCES
Description
Ownership
Applicant’s Value
Respondent’s Value
10
N/A
N/A
11
N/A
N/A
Financial resources subtotal
$0
$0
TOTAL (assets – liabilities +superannuation + financial resources + other)
$855,803
$852,803
The Court accepts that the Husband owes the wife some $3000 in child support. The Court proposes to deal with the issue of unpaid child support by way of making an adjustment in the form of a payment to the Child Support Agency from the sale proceeds of the former matrimonial home to deal with the liability rather than make it an issue in the proceeding and call into question why neither party sought that the liability in the name of the Husband then correspond as an asset in the name of the Wife.
In Stanford v Stanford [2012] HCA 52, the High Court observed that in most cases a just and equitable requirement is readily satisfied by observing that, as the result of choices made by one or both of the parties, the Husband and Wife are no longer living in a marital relationship and it will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of the property by the Husband and Wife. No less importantly, the express or implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship.
The Court, firstly, finds that it is just and equitable to make an adjustment of property as between the Wife and Husband, noting the Husband resides in the former matrimonial home and the Wife has effectively been denied the common use of that property upon the severance of the mutuality of the parties’ marital relationship.
The Court considers the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them.
Other than the gift made to the Husband by his father (that occurred shortly after commencement) the parties had no assets of any significance at the commencement of their relationship.
In the matter Kessey v Kessey (1994) FLC (92-495) the Full Court found that contributions by a parent of a party to a marriage to the property of the marriage will be taken to be a contribution made by or on behalf of the party who was the child of the parent unless there is evidence which establishes that it was not the intention of the parent to benefit only his or her child. There was no suggestion in this case that there was any intention the gift was to benefit both parties and the Court accepts that the monies advanced by the Husband’s father should be treated as a contribution of the Husband. The monies gifted by the Husband’s father allowed the parties to purchase the property at J Street, Suburb K, for $73,000 in about 1999. That property grew in value and, as set out above, in 2008 the property at J Street, Suburb K, was sold for $172,000, and that in 2009 the property at B Street, Suburb C was purchased for $250,000, with a Mortgage of $85,000 to Company N.
The Court notes the unilateral decision by the Husband to withdraw some $16,000 from joint savings in May 2019 for his own personal use. The Court also notes that the Husband has been residing in the B Street, Suburb C property mortgage free and the Wife living in other accommodation including renting since separation.
The contribution by the Husband in the form of the gift from his father was significant in terms of value at the time. That initial contribution must be viewed in the context of what is described in the submissions made by Counsel the Wife as the myriad of other contributions. It is however not extinguished by the passage of time. It is agreed that the Husband worked and the Wife did not where she looked after the parties’ 7 children. The Husband through his earning paid out the mortgage secured over B Street, Suburb C. The Husband made direct financial contributions working to financially provide for the family and were significant where this was a long marriage of over 22 years with seven children. The Husband had the responsibility of providing financially for the parties’ family of 9 people.
These are not proceedings where the Court gives weight to contributions (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them.
The Court gives weight to the contribution made by the Wife to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent. This is significant where the Wife was the home maker and parent to a family of 9.
At paragraph 11 of the Wife’s written submissions it is put that “the Wife’s contributions were made more difficult due to domestic violence”. This submission goes to the Wife’s argument that finds foundation in the Full Court decisions in Kennon and Kennon [1997] FamCA 27 (10 June 1997) where violence was considered as being relevant to proceedings under Section 79 that provides:
The actions in question are variously referred to in discussions as 'conduct', 'misconduct', or 'fault'. Those terms seem to be used interchangeably. As a matter of convenience, we will use the term 'conduct'. …
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s 79. We prefer this approach to the concept of 'negative contributions' which is sometimes referred to in this discussion.
The Wife gave significant evidence within her affidavit at paragraphs 22 – 42 as to the Husband perpetrating significant family violence upon her during the relationship. Those allegations are denied by the Husband. It difficult for the Court to make finding that the Husband engaged in a course of conduct towards the Wife that falls within the definition of family violence found at section 4B of the Family Law Act where the allegations put the Wife’s word against that of the Husband’s. Putting that issue aside the Kennon argument by the Wife cannot be advanced where at no point in her evidence (found at paragraph’s 95-130 of the Wife’s affidavit in relation to the property proceedings) does the Wife directly or even indirectly suggest that the Husband’s conduct had a discernible impact (or any impact) on the Wife and or that the Wife’s contributions to the relationship in terms of her ability to work making direct financial contributions or contributions as a homemaker and parent were made significantly more arduous as a result of the husband’s conduct. Accordingly the Wife’s Kennon argument fails.
The Court considers it just an equitable that there be an adjustment between the parties based on contributions of 10% in the Husband’s favour.
The Court notes the effect of the proposed orders of the parties and finds that there will be no real effect upon the earning capacity of either party to the marriage as a result of those proposed orders.
The Court considers those matters referred to in subsection 75(2) so far as they are relevant.
The Husband is 55 and the wife is 53 years old. The Wife is in good health. The Husband has given evidence in cross examination that he has a bulged disc in his spine.
The Wife was employed at the time of the hearing earning an extremely modest income. The Husband, who was unemployed at the time of the hearing, was in the process of arranging to obtain a carer’s pension to look after his mother and indicated he would return to work in a transport job within months. It was the view of the Court both parties would continue to earn a modest income and that each of the parties had the physical and mental capacity for appropriate gainful employment. Neither party had any financial resources available to them outside of the pool of assets the Court has found available for division.
Each party has the care or control of a child of the marriage who has not attained the age of 18 years. The Court is aware of the parties’ commitments of each of the parties that are necessary to enable the party to support themselves, a child or another person that the party has a duty to maintain; and the responsibilities of either party to support any other person where:
·X (born in 2009, currently 13 years of age), lives with the Wife and spend time with the Husband in accordance with her wishes.
·Y (born in 2011, currently 11 years of age) and Z (born in 2010, currently 12 years of age) live with the Husband and spend time with the Wife.
·Mr D (born in 2002, currently 19 years of age) and E (born in 2001, currently 21 years of age “E”) live with the Husband.
·Ms F (born in 1999, currently 23 years of age) lives with the Wife.
The Court understands that the Husband may be eligible to receive a pension, allowance or benefit in the form of a carer’s pension from Centrelink.
When the property is divided between the parties they will not have a lot but that property they each receive will afford them each a standard of living that in all the circumstances is reasonable.
No argument was advanced by either party that the duration of the marriage has affected either party’s earning capacity.
There is no suggestion in the proceedings that the orders sought be either party will affect one of the party’s wish to continue that party's role as a parent.
The evidence around whether either party was or had cohabited with another person, and if so the financial circumstances relating to the cohabitation, is significantly lacking and the Court gives this matter no weight.
Neither party is bankrupt.
The Husband owes arrears of child support under the Child Support (Assessment) Act 1989 to the Wife. There is no financial agreement that is binding on the parties to the marriage and no Part VIIIAB financial agreement that is binding on a party to the marriage.
The Court notes above the orders made with respect to the arrangements for the children of the parties under the age of 18 years to live with and spend time with the parties.
When considering the matters set out at section 75(2) of the Family Law Act the Court finds that it is just and equitable to make no adjustment as between the parties. The Court thus finds that when considering contributions and matters at 75(2) of the Act there should be a division of property between the parties of 40% to the Wife and 60% to the Husband based on contributions.
The Court steps back and considers whether there should be any further adjustment between the parties to ensure that the Court makes orders that are just and equitable. As set out above the Court will make orders that allows either party to register as bidders on the sale of the former matrimonial home and then bid. The Court will also allow one of the parties leave to seek ancillary orders should they be the successful bidder so as to ensure they obtain the benefit of receiving the other party’s interest in the former matrimonial home without liability for stamp duty. The Court notes that in the adjustment of property between the parties the Husband will receive $2082 as part of his share of assets whereas the Wife will receive only cash (unless she retains the former matrimonial home which is unlikely). The superannuation entitlements are so small in the scheme of the distribution the Husband will not be disadvantaged to any meaningful extend where he cannot readily access his superannuation as cash. The Court otherwise finds that it is not necessary to make any further adjustment as between the Wife and the Husband. Having considered the above the Court finds that it just and equitable to make orders for an adjustment of property between the Wife and the Husband with the Wife receiving 40% and the Husband 60%.
For the reasons set out above the Court make the following Orders:
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Myers. Associate:
Dated: 17 March 2023
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