Devenish & Devenish
[2021] FedCFamC1F 166
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(Division 1)
Devenish & Devenish [2021] FedCFamC1F 166
File number(s): MLC 6530 of 2020 Judgment of: WILLIAMS J Date of judgment: 28 October 2021 Catchwords: FAMILY LAW – PROPERTY – Competing applications for property settlement where the parties cohabited for approximately six years – The asset pool was agreed between the parties and the issues in dispute were the assessment of the contributions of each of the parties and future needs – Where the husband brought all of the significant assets into the marriage, except the wife’s modest superannuation entitlements – Both parties made significant non-financial contributions to renovations of the family home – Where husband made additional financial contributions to the renovations by liquidating assets held at the commencement of the relationship – Husband made superior financial contributions to the household during the relationship – Consideration of future needs where the wife had not been in employment for a considerable number of years and has many and varied health issues – Where the husband also has health issues – Consideration of the myriad of contributions of each of the parties and future needs – Held the wife’s contributions assessed at 9 per cent of the asset pool and her future needs at 10 per cent and orders made accordingly Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 74, 75, 79, 117
Cases cited: Aldrin & Celona [2021] FedCFamC1A 16
Bushby & Bushby [1987] FamCA 63
Chancellor & McCoy [2016] FamCAFC 256
Dickons & Dickons [2012] FamCAFC 154
GBT & BJT [2005] FamCA 683
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
In the Marriage of Hickey [2003] FamCA 395
In the Marriage of I & I (No 2) (1995) 22 Fam LR 557
Jabour & Jabour [2019] FamCAFC 78
Kennon & Kennon [1997] FamCA 27
Lane & Wharton [2010] FamCA 18
Norbis & Norbis (1986) 161 CLR 513
P &P [2002] FamCA 1006
Stanford & Stanford [2012] HCA 52
W & W (Unreported, Full Court of the Family Court of Australia, 28 January 1997)
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance Number of paragraphs: 135 Date of hearing: 26 August 2021, 21 & 23 September 2021 Place: Melbourne Counsel for the Applicant: Mr Goussis Solicitor for the Applicant: Prapas & Co Counsel for the Respondent: Mr Marchetti Solicitor for the Respondent: McCluskys Lawyers ORDERS
MLC 6530 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DEVENISH
Applicant
AND: MS DEVENISH
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
28 OCTOBER 2021
THE COURT ORDERS THAT:
1.The husband pay to the wife the sum of $410,804.00, payable to McCluskys Lawyers for and on behalf of the wife, as follows:
(a)not later than 14 days from the making of these Orders, the husband pay the sum of $50,000 ("the first payment"); and
(b)not later than 120 days from the making of these Orders, the husband pay the sum of $360,804 ("the final payment").
2.Pending the final payment or settlement of the sale of the former matrimonial home:
(a)the wife have sole use and occupation of the former family matrimonial situate and known B Street, Suburb C, in the State of Victoria, (“the former matrimonial home”) and during such period of occupation the husband shall be responsible and pay, or caused to be paid, all rates and insurance instalments as and when they are due and payable;
(b)the husband continue to pay, or cause to be paid, by way of spousal maintenance, pursuant to s 74(1) of the Family Law Act, the weekly sum of $400 ("the spousal maintenance payment"), payable in advance on a fortnightly basis into an account nominated by the wife; and
(c)in the event the husband fails or refuses to make any of the spousal maintenance payment and/or fails or refuses to make the whole of the first payment, then such outstanding sum payable by the husband shall be added to the final payment due by the husband to the wife.
3.Upon and contemporaneously with the husband making the final payment, including (if necessary) any payment pursuant to Order 2(c) above, the wife shall vacate the former family home that the husband shall thereafter retain to the exclusion of the wife.
4.In the event the husband does not make the whole of the first payment; the final payment, and discharges his obligation pursuant to Order 2(c) by the date, then the former matrimonial home be forthwith sold out of court ("the sale").
5.There be liberty to apply with respect to the terms and conditions (including the mode) of the sale.
6.The proceeds of the sale of the former matrimonial home be applied as follows:
(a)to pay the costs, commissions, and expenses of the sale;
(b)so much of the first payment; the second payment, and/or any unpaid liability pursuant to Order 4(c) as may then be outstanding together with interest at the rate specified by the applicable rules of court from the date, until payment in full;
(c)the balance to the husband.
7.Contemporaneously with the final payment, the wife deliver to the husband’s solicitor a Withdrawal of Caveat, in respect of Caveat No. …, registered on the title to the former matrimonial home.
8.In relation to the husband’s superannuation interest in the Super Fund 1 (member Number …96) (“the Fund”):
(a)there be an allocation for the purposes of section 90XT(4) of the Family Law Act 1975 (Cth) of the base amount of $31,458 to the wife from the husband’s interest in the Fund;
(b)pursuant to section 90XT(1)(a) of the Family Law Act 1975 (Cth) whenever a splittable payment becomes payable in respect of the interest in the fund held by the husband the wife shall be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount of $31,458 pursuant to paragraph 8(a) of these Orders and there shall be a corresponding reduction in the entitlement of the husband would have had in the Fund but for this order;
(c)paragraph 8(a) of these Orders shall take effect from the operative time being the fourth business day after the date on which a sealed copy of this order is served on the trustee of the fund.
9.The Trustees of the Fund, in accordance with the obligations set out under the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 and the Superannuation Industry (Supervision) Act and Regulations 1994 shall do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of and make payment to the wife in accordance with this order.
10.Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders;
(b)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(c)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
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 the pseudonym Devenish & Devenish is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Williams J
INTRODUCTION
This is an application for property adjustment pursuant to s 79 of the Family Law Act1975 (Cth) (“the Act”) as the parties are unable to agree about the division of their property.
The applicant husband is aged 63 years and is a tradesperson .The respondent wife is aged 54 and has been unemployed for a while, although she has various employment qualifications and experience.
There are no children of the relationship.
Issues in dispute
The following issues were in dispute in the proceedings:
(a)the extent of each party’s contribution to the asset pool during the relationship;
(b)the s 75(2) factors in relation to both parties.
Synopsis
In relation to property, I have determined that the non-superannuation and superannuation assets of the parties be divided 19 per cent in favour of the wife and 81 per cent in favour of the husband.
The reasons for my determination follow.
Background
The parties first met in 2006 at their local dog park. Subsequent to their first meeting in 2006 the wife lived in Country D from 2006–2008 and again from 2010 until 2011. After her return to Australia she was diagnosed with hepatitis C and undertook chemotherapy which resulted in the wife suffering sarcoidosis in her lungs, asthma and rheumatoid pain.
In February 2013, the parties reconnected and developed a relationship. They commenced cohabitation on 1 October 2013, when the wife moved into a property owned by the husband, B Street, Suburb C (“the Suburb C property”). They married in 2015 and separated in August 2019, following an incident of family violence. The husband was removed from the home by the police and the wife has remained living in the Suburb C property. They divorced in August 2021.
During cohabitation, the parties undertook both interior and exterior renovations of the property, including kitchen and bathroom renovations.
Between January 2016 and April 2016, the wife attended a psychologist, Dr E, pursuant to a mental health plan, to address stress management, anxiety and depression.
The wife has a number of other medical conditions, which are referred to in greater detail in these reasons in my discussion of future needs.
On 3 September 2019, the wife obtained a final intervention order against the husband for a period of 12 months, which was made by consent and without admission.
On 23 June 2020, the husband initiated family law proceedings and on 12 October 2020 an interim order was made for the husband to pay spousal maintenance to the wife of $400 per week and to pay a partial property settlement of $20,000.
On 6 November 2020, the parties attended a mediation with a Senior Registrar, however the matter did not resolve.
On 26 August 2021, the final hearing was scheduled to commence. It was unable to proceed because there was no retrospective valuation of the Suburb C property and there were outstanding disclosure issues pertaining to the husband’s withdrawal of some of his superannuation entitlements.
The trial was relisted for 21 September 2021 and was concluded in two days.
Preliminary matters
The matter was heard electronically during the COVID-19 Pandemic, with the consent of both parties.
During an interim hearing before Senior Judicial Registrar Hoult on 6 November 2020, procedural orders for an electronic trial were made and undertakings sought and accepted from Counsel as to the practicalities and logistics of the witnesses giving evidence and being cross-examined.
I am confidently satisfied that the matter was appropriate for an electronic trial and that justice and equity, and procedural fairness were afforded to all parties. I wish to compliment both Counsel for the manner and spirit of cooperation in which the trial was conducted.
THE PROPOSALS OF THE PARTIES
The husband's proposal
The orders which the husband sought from the court are set out in the Case Outline dated 18 August 2021.
They are in summary as follows:
(a)a cash payment to the wife equivalent to 10 per cent of the non-superannuation asset pool;
(b)the wife retain her superannuation entitlements of $114,303 and by way of a superannuation split a further 10 per cent of the value of the husband’s superannuation including an add back of the sums withdrawn by him;
(c)each party otherwise retain their respective assets and liabilities.
The husband relied upon the following documents:
(a)Further Amended Initiating Application filed 24 June 2021;
(b)Affidavits of the husband filed 24 June 2021, 30 June 2021 and 13 September 2021;
(c)Financial Statement of the husband filed 13 September 2021;
(d)Affidavit of Dr F (orthopaedic surgeon) filed 24 June 2021;
(e)Outline of Case.
The wife’s proposal
The orders which the wife sought from the court are set out in the Case Information and Outline document dated 23 August 2021.
They are in summary as follows:
(a)a cash payment to her equivalent to 40 per cent of the non-superannuation asset pool;
(b)a division of the combined superannuation entitlements, including an add back of the sums withdrawn by the husband, so that the wife receives 45 per cent and the husband receives 55 per cent;
(c)each party otherwise retain their respective assets and liabilities.
The wife relied upon the following documents:
(a)Amended Response filed 17 June 2021;
(b)Affidavits of the wife filed 17 June 2021 and 15 September 2021;
(c)Financial Statement of wife filed 15 September 2021;
(d)Affidavit of Dr E (psychologist) filed 17 June 2021;
(e)Affidavit of Dr G (Report on Wife’s Health) filed 17 June 2021;
(f)Outline of Case.
EVIDENCE
The standard of proof in this case is the balance of probabilities (s 140 Evidence Act 1995 (Cth)).
Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.
The husband and wife relied upon their respective affidavits. The affidavits recounted the history of the parties’ relationship in regard to the property dispute. I have examined that evidence and do not propose to repeat it in these reasons. It is not necessary for a trial Judge to refer to every piece of evidence or argument presented during a trial.
In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
Credibility of witnesses
Both the husband and the wife were cross examined by Counsel for the other party.
Both impressed me as responsive and credible witnesses. Both made appropriate concessions and were relatively direct with their answers. I accept both as witnesses of truth.
In this dispute there was very little factual disagreement and it is not a matter where the outcome depends on the veracity of the evidence of one witness, as opposed to the other.
Neither party sought to cross-examine the other party’s expert witnesses, relevant to their health, and I therefore accept the evidence of the various expert witnesses as unchallenged.
Relevant Legislation
Property proceedings between parties to the marriage are governed by the provisions of s 79 of the Act.
Section 79(1) of the Act provides that the court may make such orders as it considers appropriate altering the interests of the parties in the property.
Section 79(2) provides as follows:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
If the Court is satisfied that it is just and equitable to make an order altering the interests of the parties in property, s 79(4) of the Act sets out the matters which the court must take into account when considering what order (if any) should be made.
That section provides as follows:
Section 79(4): In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)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; and
(b)the contribution (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; and
(c)the contribution made by a party to the marriage 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; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Prior to the decision of the High Court in Stanford & Stanford [2012] HCA 52 the preferred approach to determine property matters was set out by the Full Court in the matter of In the Marriage of Hickey [2003] FamCA 395 (“Hickey”).
The approach, as set out in Hickey may be summarised as follows. Firstly, the court should make findings as to the identity and value of the property pool. Secondly, the court should determine the contributions of the parties both direct and indirect, including financial and non-financial contributions and then determine the contribution based entitlements of each of the parties; as a percentage of the value of the property of the parties. Thirdly, the court should determine whether any further adjustment should be made to the contribution based entitlements of the parties, after giving consideration to the relevant matters referred to in s 75(2) of the Act. Fourthly, the court should consider the effect of those findings and decide what order for division of property is just and equitable.
In Stanford, the High Court noted that s 79(1) enables the court to make such orders as it considers appropriate. However, prior to making any orders for the adjustment of parties’ interests in property, the court must determine whether it is just and equitable to make any property orders, or to alter the parties’ interests in property.
At Paragraph [36] of Stanford, the High Court said:
The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.
In Bevan & Bevan [2013] FamCAFC 116 (“Bevan”), the Full Court considered which matters might be taken into account in determining whether it is just and equitable to alter existing property interests.
At paragraphs [84] and [85], Bryant CJ and Thackray J said:
84.Just as the expression "just and equitable" does not admit of exhaustive definition, it is not possible to catalogue the "range of potentially competing considerations" that may be taken into account in determining whether it is just and equitable to make an order altering property interests. However, in our view, it would be a fundamental misunderstanding to read Stanford as suggesting that the matters referred to in s 79 (4) should be ignored in coming to that decision. Indeed, such a reading would ignore the plain words of s 79(4) which make clear that in considering "what order (if any) to make, the court must take into account the matters referred to in that subsection.
85.This requirement to consider the s79(4) matters, in determining whether it is just and equitable to make any order provides fertile ground for potential conflation of the two different issues, which the High Court has warned against. However, this potential will not be realised in many cases because of what the plurality said at [42] about the "just and equitable" requirement being "readily satisfied". But there will be a range of cases, of which arguably the present is a good example, we determining whether it is just and equitable to make any order altering property interests will not be so clear cut and will therefore require not only separate but very careful deliberation.
In Bevan, Finn J stated at paragraph [169]:
Findings of fact concerning of the parties financial history (i.e. the contributions) and their present circumstances and future prospects made in the context of s 79(4) will also assist, but such findings cannot (according to Stanford) be conclusive in determining whether or not it is just and equitable to make an order altering any particular property interest.
The Full Court in Chancellor & McCoy [2016] FamCAFC 256 said at paragraph [42]:
In adopting the approach she did, her Honour proceeded in accordance with what the Full Court said in both Bevan and Chapman, namely that it is open to a trial judge to take into account the matters stated in s 79(4) (or s 90SM) of the Family Law Act 1975 (Cth) ("the Act") when determining whether it is "just and equitable" to adjust existing property interests. However, consistent with Stanford, her Honour also recognised that it was not open to her to decide that issue merely by reference to those matters.
The High Court stated in Stanford at [37]:
First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property… The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order."
At paragraph [40] of Stanford, the High Court stressed that the question of whether it is just and equitable to make property settlement orders should not be answered by starting with an assumption:
…that one or other party has the right to have the property of the parties divided between them or has the right to an interest in a marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised "in accordance with legal principles, including the principles which the Act itself lays down". To conclude that making an order is "just and equitable" only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
The High Court further stated at [42] that in most cases:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. 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 property by the husband and wife. No less importantly, the express and 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. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
In summary, in the majority of matters the decision as to whether or not it is just and equitable for the Court to make property orders is resolved by the breakdown of the marital relationship and the mutual applications of the parties to the court for orders altering their respective property interests.
Is it just and equitable to alter the parties' property interests?
In this matter the parties have separated and both parties have made applications to the Court seeking orders altering their respective property interests.
The parties are no longer living in a marital relationship, and as stated at paragraph [42] of Stanford, there will not "thereafter be the common use of property by the husband and the wife".
I am satisfied that it is just and equitable to alter the parties' property interests.
Having satisfied myself that it is just and equitable to make an order altering the interests of the parties in the property, the approach and considerations I must make are as follows:
(a)identify the parties asses and attribute value to the assets comprising the property pool;
(b)identify and give weight to the various contributions of each of the parties as set out in s 79(4)(a)–(c) and make an assessment as to the entitlements of the parties based on their respective contribution;
(c)identify the relevant considerations as set out in s 79(4)(d)–(g), including the matters set out in s 75(2) so far as they are relevant, and then decide whether any further adjustment is appropriate;
(d)consider whether the proposed orders are equitable.
The parties' existing interests in property
Most helpfully, prior to the conclusion of the trial, counsel for the parties agreed upon a joint statement of assets and liabilities. They also reached agreement about the add back of funds withdrawn from the husband’s superannuation.
The agreed balance sheet is as follows:
Table of Assets and Liabilities Description Value Husband B Street, Suburb C $2,000,000 Motor Vehicle 1 $3,000 CBA Pensioner Security (opened post separation) $70,829 H Bank Account $1,150 J Financial Services $5,600 K Company Shares $5,464 P Investment Fund $29,726 R Company Fund Minimal L Company Fund Account $12,918 Power tools $3,000 Tax refund $15,000 Wife Motor Vehicle 2 $3,000 Partial property settlement $20,000 Credit Card liability - ($4,054) Personal loans owed - ($2,900) Total $2,162,126
Table of Superannuation Name of Fund Interest Value Super Fund 1 Husband $5,058 Super Fund 1 Husband $534,412 Add back (legal fees paid) drawn from super Husband $113,393 Super Fund 2 Wife $114,303 Superannuation Total $767,166 Non-superannuation Assets Total $2,162,126 Assets Total $2,929,292
I will now address the contributions of the parties.
Section 79(4)(a)(b) and (c) financial contributions and non-financial contributions
Assets at the commencement of the relationship
There was agreement about the assets of each of the parties at the commencement of the relationship.
The husband’s assets were as follows:
B Street, Suburb C $925,000 Motor Vehicle 1 $14,000 H Bank Savings $15,374 J Financial Services Shares $4,000 1705 M Company shares $10,775 3728 K Company Shares $16,440 Q Investment Fund $52,995 P Investment Fund $23,660 Super Fund 3 $45,155 R Company Fund $6,188 L Company Account $NK Power tools $3,000 Furniture and household items $10,000 Total $1,126,587 Superannuation Entitlements SUPER FUND 1 $261,577 Total assets $1,388,164
The wife’s assets were as follows:
Motor vehicle $3,000 Super Fund 2 superannuation $43,300 Total Assets $46,300 Contribution during and post the relationship
I will address the respective evidence of the parties pertaining to contributions during and post the relationship, noting that neither party substantially disputed the factual assertions of the other.
It was agreed that during the relationship the husband worked as a carpenter and was the primary income earner. His income for the various years of the relationship was as follows:
Financial Year Ending Income 30 June 2014 $80,849 30 June 2015 $94,966 30 June 2016 $78,113 30 June 2017 $34,869 30 June 2018 $126,692 30 June 2019 $59,148 30 June 2020 $98,000 30 June 2021 $198,000
The wife had various employment during the relationship, although not continual. The wife’s income during the relationship was as follows:
Financial Year Ending Income 30 June 2014 $45,000 30 June 2015 $37,000 30 June 2016 $21,000 30 June 2017 nil 30 June 2018 $7,705 30 June 2019 $7,705
In terms of financial contributions during the relationship, I accept that the husband contributed his earnings for the benefit of the household and that some of his income was also salary sacrificed into his superannuation and applied towards the costs of the renovations. The above tables show that there was a substantial disparity in income earned by both parties during the relationship.
The wife agreed that the husband provided her with the use of a direct debit card, from which she paid the majority of the household expenses, although her evidence was that they lived a relatively frugal lifestyle and she was effectively required to obtain his approval prior to expenditure. The husband’s evidence was that he paid for household bills, grocery expenses, medical bills, utilities and outgoings referable to the property, private medical insurance and for the wife’s cosmetics and clothing. That evidence was not seriously challenged other than the wife’s perception was that the husband was frugal and not overly generous, and that she met personal expenditure from her own resources. The wife agreed that the husband did not take money from her bank account.
Both parties agreed that the husband paid for the wife’s trip to Country N in 2018 and contributed some funds to enable her to purchase the motor vehicle she still drives.
The husband made substantial financial contributions towards the renovation costs by selling various assets he held at the date of cohabitation. His evidence was that he sold his M Company shares, withdrew his savings from his Super Fund 3 account and his Q Investment Fund account, withdrew most of his long service entitlements and some of his severance pay entitlements which were applied towards various living and other expenses, as well as renovation costs. In his trial affidavit he estimated that the amounts paid for renovations was approximately $100,000 and he refers to a further $50,000 also being applied to the costs of the renovations. I accept that unchallenged evidence.
Both parties agree that significant interior and exterior renovations were carried out to the Suburb C property, although there was some dispute about who insisted on the renovations. I do not consider that a relevant matter, as clearly both parties carried out the renovations over a number of years devoting significant energy, resources and funds to achieve the ultimate result.
According to the wife, and I accept, at the time of cohabitation, the Suburb C property was the home of a bachelor/tradesman, was not clean, had power tools lying on all surfaces, a compressor for a coffee table and old threadbare sheets hanging in the front windows as curtains. Annexure E to her affidavit of 17 June 2021 is a photograph of the kitchen prior to the main renovation of the property which accords with her evidence about the state of the property.
In terms of non-financial contributions to the renovations, the wife’s role in the renovations, which commenced prior to cohabitation, was to redesign and refurbish the property. The wife had interior design and decoration skills as a result of having completed three years of an interior design course at S University and experience with a variety of fabric houses, furniture designers, window finishing manufacturers and upholsterers. The husband utilised his skills as a tradesman and experience in the building trade, to carry out work to the property.
According to the husband, he did much of the manual building work including, repairing and repainting the front picket fence which took approximately 60 hours of work, repainting the concrete driveway, preparing and painting the whole house, making new timber doors and timber windows and other joinery, completing a partially constructed staircase from the ground floor to the mezzanine level including painting it, building a pergola, painting external weatherboards and eaves, including preparatory work, completing demolishing the bathroom framework and carrying out landscape work.
During cross-examination, the wife conceded that the work carried out by the husband was of a superior and high standard.
In her trial affidavit, she deposes to arranging and choosing window furnishings, which were installed in July 2013, and thereafter sourcing drapery and upholstery fabrics which she specified for use in the home, via her trade contacts with suppliers and contractors, often providing trade discounts. The window furnishings, including plantation shutters were supplied over a six year interval. During his cross-examination, the husband agreed that the wife had sourced many materials during the renovations.
The wife had obtained skills to enable her to plan, design and project manage the renovations from both her studies in interior design and her industry experience. Her evidence, which was not challenged was that the parties would each contribute their respective skills to create a comfortable home together, which would be their forever home. She designed and reconfigured the existing bathroom/laundry/backdoor area to include a large family bathroom and an easy access ensuite off the master bedroom. She did all of the design, planning and coordination of the renovation and was involved in every stage of the design renovation and refit, except demolition work, painting and carpentry.
She also refurbished the home by sourcing and in some cases custom designing the fit out including sourcing fabrics and arranging for reupholstering and recovering of existing furniture and a custom lounge suite. She spent many months visiting different wholesale showrooms, gathering fabric swatches and paint colour cards to enable them to agree on a scheme. In all of her choice of design, colours and fabrics, she took into consideration the husband’s preferences in relation to the interior of the home including preparation of colour boards for his approval prior to commencement of works.
She chose and specified fabrics and paint colours for the master bedroom, ensuite bathroom, second bedroom, third bedroom/study, lounge room, kitchen as well as designing French doors onto the deck, front doors and an attic window upstairs. She also arranged for measure and quote for security doors and front doors including matching trims.
The wife replaced the bed and bedside tables in the master bedroom including a new padded bed head which she designed and had custom made. In May 2015, she sourced a wardrobe at IKEA and later in 2015 at a trade fair she sourced bedside tables which she later ordered from a furniture wholesaler. She updated the hall entrance by retaining the existing wallpaper border and selecting paint colours and frosted glass pendants, as well as engaging tradesmen to sand the floors in the entrance hall and installing a carpet runner she also arranged for carpet for the three downstairs bedrooms.
As the kitchen was small, antiquated and not functioning, she coordinated a mini fixup in November 2013 prior to undertaking a substantial renovation in 2015 and 2016. The wife researched and sourced the kitchen appliances prior to engaging a business to do a complete remodelling and extension of the kitchen and European laundry. The remodelling required plans which the wife drafted, which were refined in consultation with the contractors, including specification of bench tops, finishes, colours, splash backs and drawers.
The wife also reconfigured the kitchen and laundry areas to enable a large family bathroom to be included. This involved the wife selecting and sourcing tiles for the bathrooms, kitchen and laundry areas, and working out calculations of quantities of tiles and grout colours. She also researched bathroom fixtures and fittings from many different wholesalers and showrooms and designed custom made vanities and bench tops.
The wife’s design skills extended to the outdoor area where she was involved in sourcing materials for the pergola, decking, and roofing and arranged for automated external blinds. She also researched and ordered plants for the garden and arranged for the installation of raised garden beds.
In his affidavit in reply to the wife’s trial affidavit, the husband, as expected, sought to minimise the wife’s design and contribution to the renovation works, although during cross-examination, he was much more inclined to give her credit for her input and involvement. I accept the evidence of the wife that she was responsible for the design, coordination and effective project management of the renovations, to the extent claimed by her. Her evidence in this regard was detailed and precise, including naming specific suppliers and contractors.
I also accept the husband’s evidence of the work carried out by him and the payment by him of the renovation costs, as he was not challenged significantly in this regard.
There did not seem to be any significant dispute that the extensive renovations to the property had increased the value of the property, however there was no expert evidence in this regard adduced by either party.
The husband's evidence about his home maker contributions is that he and the wife almost equally shared the house work, whilst he was responsible for maintaining the garden and carrying out the landscaping. He also deposed to making breakfast on Sundays and bringing his lunch from home, whereas the wife cooked most evening meals, with him setting the table and clearing up after dinner. He also deposes to mopping floorboards, bathroom floor tiles, vacuuming and doing laundry. He considered that the wife did the grocery shopping and that he did not know what housework she did whilst he was at work, however the house was always clean and immaculate.
The wife's evidence about her non-financial and parent and homemaker contributions is that she did the majority of the house work, shopping and meal preparation. The husband’s contribution to housework duties was when she was physically unable to do so and that both parties undertook landscaping and enjoyed gardening together. She maintained a clean, tidy and beautifully presented home, which the applicant agreed with during cross-examination.
I prefer the evidence of the wife to that of the husband in terms of the contributions as a homemaker and consider it unlikely that the husband would have been substantially involved in a homemaker capacity, except for periods when the wife was incapacitated. The photographs of the kitchen annexed to the wife’s affidavit, at Annexure E, are compelling in terms of the state of the property prior to cohabitation and without the wife’s domestic input.
In terms of post separation contributions, whilst the wife has remained living in the Suburb C property, the husband has paid home insurance of $1,955 per year, council rates of $1,500 per year and water rates of $840 per year. Between separation and 11 October 2020 the husband paid the wife by agreement between the parties, $250 spousal maintenance for each week he worked. On 12 October 2020 orders were made that the husband pay the wife $400 per week spousal maintenance, which he has done. The wife has had the benefit of living in the property and has presumably paid all other utility and outgoings referable to her occupation and has attended to upkeep of the property.
The wife’s affidavits included allegations that she had been subjected to family violence including financial abuse. Her counsel confirmed that she did not seek to run a “Kennon” argument and seek a further adjustment in her favour resulting from those allegations.
Section 79(4)(d),(e),(f) and (g) and the section 75(2) factors
Section 79(4)(d): the effect of any proposed order upon the earning capacity of either party to the marriage.
The orders which I propose to make will not have any effect on the earning capacity of either party.
Section 79(4)(e): the matters referred to in section 75(2) so far as they are relevant
The husband is aged 63 and his health is, as would be expected from many years of physical labour, compromised to some extent. Until the end of August 2021, he was employed in the construction industry.
The husband relied upon the affidavit of Dr F, orthopaedic surgeon, as to the health challenges he faces. Dr F concluded that the husband’s work expectancy is somewhere between two and four further years. Dr F was not required for cross-examination and his evidence is unchallenged in that regard.
There was no explanation by the husband as to whether or not his employment prospects had been affected by Covid-19, and whether or not he anticipated being able to obtain some form of employment in the near future. Counsel for the wife submitted that the court should be persuaded that the husband intended to resume employment as soon as practicable, because of the recent pattern in his withdrawals from his superannuation entitlements. In the two previous years the husband had withdrawn approximately $95,000 from his superannuation entitlements, which had been used substantially to pay his legal funds in this proceeding. As of August 2021, the husband had converted his superannuation entitlements to enable him to withdraw a monthly amount of $885, which would not be sufficient to enable him to support himself. The court should draw the inference that because of the change in withdrawal of the husband’s superannuation benefits, the husband was more likely than not to return to employment as soon as it was available to him.
It was also submitted by counsel for the wife that the income earned by the husband in the financial year ended 30 June 2021, namely $198,000, when he worked significant over time, would give the court comfort that he has an income earning capacity substantially higher than that of the wife. It was also submitted that his income during that particular financial year was equivalent to 8.3 per cent of the asset pool and that that factor should influence the court in making a substantial adjustment in favour of the wife for future needs factors.
Counsel for the husband submitted that the income earned by the husband in the 2021 financial year was significantly more than any income he had earned between 2014 and 2021 and that his last year’s income was not indicative of his future prospects of income. His average taxable income during the relationship was $79,000.
I accept that it is the husband’s intention to work for some time in the future, the length of time to be determined by his capacity to fulfil physical work in the future. I also accept that he may not necessarily earn an income equivalent to that earned in the financial year 2021 and that he may encounter some short term difficulty in obtaining employment. He did not adduce evidence of any recent attempts he had made to secure employment. Even if I accept that he would be capable of earning the average income which he did during the relationship, namely $79,000 per annum, the husband is placed substantially better than the wife, to support himself in the future. I also accept that the husband is hard working and resourceful, as demonstrated by his work history during the relationship and that he will not be tardy in searching for employment. His employment prospects are undoubtedly far superior to those of the wife. I also accept that it would be extremely unlikely that the husband had recently arranged his superannuation affairs in the manner in which he did, if he did not intend to resume employment.
The wife is aged 54 and also has compromised health. The wife relied on the affidavits of her psychologist Dr E and her medical practitioner Dr G as to her health constraints. Neither expert was required for cross-examination and their evidence is unchallenged in that regard.
The wife was cross-examined about her employment history prior to and during the relationship. She gave an eloquent account of the impact of her health problems on her capacity to carry out various jobs, including previous employment which required her to lift heavy items. I accept that evidence and that the wife has been and probably will be constrained in the future from engaging in any sort of employment which would require physical exertion.
The wife was also cross-examined as to why she could not retain a job given that she was more qualified at the conclusion of the relationship than at the commencement. Again, I accept her evidence in this regard that she had a background in hospitality and hospitality training prior to undertaking a course in interior design at S University and thereafter a diploma to qualify her in office administration. Her evidence was that she had completed three years of the interior design course, however she was unable to cope with the aspects of the course with which required dexterity with computer-driven design programs and she did not complete the course for that reason. She also gave evidence about her lack of success in applying for an administrative job and that she was a loss to understand why it was that she had been unable to secure any employment in the last couple of years. In the context of the economic devastation of the Covid-19 pandemic, it would not require an enormous stretch of the imagination to understand why the wife, who has not been in the workforce for many years would have significant difficulty in obtaining a job in hospitality, even if she were so inclined, or obtaining a job in administration, without any experience in that field. Unfortunately for the wife, her future employment prospects remain somewhat bleak. She will also not have the benefit of significant capital assets in the future, as the husband will.
At the conclusion of these proceedings the husband will inevitably be in a far superior financial position to the wife both in terms of capital, his employment prospects and his superannuation entitlements. The wife has lived in the former family home since separation and has not had to pay rent to secure a roof over her head. That situation will differ at the conclusion of these proceedings and she will be required to move out of the Suburb C property and obtain independent accommodation while supporting herself from her resources. She may be eligible for some form of Centrelink assistance, but the nature and extent of that assistance is unknown.
She will be in a far inferior financial position to the husband, to enable her to provide for her future financial needs.
Section 79(4)(f) and (g)
There are no matters relevant to these sections.
Section 75(2)(o): any fact or circumstance which in the opinion of the Court, the justice of the case requires to be taken into account
There are no such additional factors which require consideration.
Discussion and Conclusion as to contributions and future needs
Counsel for the husband submitted that he wife’s contributions should be assessed at 5 per cent and that a further 5 per cent of the non-superannuation asset pool should be adjusted in favour of the wife to address her future needs. He also submitted that the wife should be entitled to retain her existing superannuation and receive a superannuation split of an amount equivalent to 10 per cent of the husband’s superannuation entitlements. That proposal would result in the wife receiving non-superannuation assets of $216,212 and superannuation of $179,589 calculated by retention of wife’s superannuation of $114,303 plus 10 per cent of husband’s entitlement of $652,863. The proposal equates to a 10 per cent adjustment to the wife of the non-superannuation pool and 23 per cent of the combined superannuation pool of $767,166. The proposed adjustment is a division of the combined pools as to 13.5 per cent in favour of the wife and 86.5 per cent in favour of the husband. The proposed overall amount the wife should receive is $395,801.
The submissions were on the basis of the overwhelming financial contribution of the husband to the capital assets of the marriage, his financial contributions to the costs of the renovations to the property, including capital sums raise from the disposition of assets held by the husband at the commencement of the relationship, to fund in part the renovations to the property. It was also submitted that the husband’s income during the relationship had been significantly in excess of the wife’s income, and that his income had been utilised for the benefit of both parties, by payment of living expenses, outgoings and insurances for the property as well as partially funding renovation costs.
He relied on various authorities including Bushby & Bushby [1987] FamCA 63 (“Bushby”), which was decided prior to Dickons & Dickons [2012] FamCAFC 154 and Jabour & Jabour [2019] FamCAFC 78 (“Jabour & Jabour”). The factual matrix can also be distinguished from this dispute, as the wife in Busby was employed and had secure accommodation.
Counsel for the husband referred the court to Lane & Wharton [2010] FamCA 18 (“Lane & Wharton”), a decision of Watts J, where the parties were married for 5 years. In that case, both parties had assets at the commencement of the relationship, albeit in significantly different amounts. During the relationship, the parties bought and sold various properties, with both making a financial contribution to some of the assets acquired, unlike in this matter, where the principal asset, the family home, was brought into the relationship by the husband, and continued to be owned by him at the conclusion of the relationship, although having undergone significant improvement due to the joint efforts of the parties and the further financial contributions of the husband.
Watts J at [150]–[157] analysed themes from comparable cases, including Bushby, Kennon & Kennon [1997] FamCA 27 (“Kennon”), W & W (Unreported, Full Court of the Family Court of Australia, 28 January 1997), P &P [2002] FamCA 1006 and GBT & BJT [2005] FamCA 683 (“GBT & BJT”). All of the cases analysed by Watts J were relatively short relationships and some included significant disparity of both assets and future earning capacity. In Lane & Wharton, His Honour ultimately concluded that the contributions should be assessed as 80 per cent in favour of the wife and 20 per cent in favour of the husband, with a further adjustment in favour of the husband of 2.5 per cent for the factors set out in s 79(4)(d)–(g). In that case the husband had made financial contributions to the acquisition of some assets, unlike this case.
At [161] of Lane & Wharton, Watts J referred to the statements of the Full Court in GBT & BJT at paragraph [64]:
“We are inclined to the view that, in addressing the weight to be given to the disparity in the parties’ incomes and earning capacities, his Honour may well have given insufficient weight to the shortness of the marriage (relevant under section 75(2)(k)) and to the minimal nature of the wife’s contributions, particularly having regard to the fact that such contributions as she did make were mainly in the homemaker sphere, the husband paid for the provision of a great deal of domestic assistance, and there were no children of the parties (relevant under section 75(2)(j)).”
In GBT & BJT, the parties had a relationship for six and a half years with a $3 million asset pool and an age differential of approximately 18 years. At first instance the wife received 12.5 per cent for contributions and a further 5 per cent for future needs, a total of 17.5 per cent. However, the Full Court found that was manifestly excessive and re-exercised its discretion, giving 7.5 per cent for contributions and a further 2.5 per cent for future needs factors, a total of 10 per cent. The wife in that case had a demonstrated income earning capacity, although not to the same extent as the husband who was an accountant. During the relationship they also had considerable domestic assistance, and the wife had not made contributions akin to those in this case.
At [162], Watts J referred to the Full Court in Kennon when dealing with 75(2) factors in that case said:
“On the one side, there are circumstances that this was a relatively short marriage, with no children, and the wife is able to continue employment of the type which she had previous to cohabitation....On the other hand, there are huge differences between the parties’ incomes, assets, future income-earning capacities and superannuation benefits. His Honour pointed out on a number of occasions that these differences existed at the time the parties commenced to live together and that if their paths had not crossed and if they had not lived together for five years it is likely that the difference would have remained the same. However, we are not persuaded that that is the beginning and end of the issues. Whilst we acknowledge that Section 79 is not a source of social engineering or as a means of evening up of the financial positions of the parties to the marriage, (see, for example Clauson & Clauson (1995) FLC 92-545; Waters and Jurek (1995) FLC 92-635 and Lyon and Bradshaw (Full Court 16 May 1997, not yet reported)), nevertheless the fact is that these parties were married for a not insignificant period, each made contributions which we have discussed and their obligations to each other do not cease on separation. Their marriage carried with it advantages and obligations and, so far as the settlement of their property on separation or divorce is concerned, those obligations are to be determined in accordance with the detailed provisions of s.79.”
In Kennon, the parties were married for two and a half years of a seven year relationship and there was an 18 year age differential between the parties. The asset pool was $8.7 million. The Full Court re-exercised its discretion and gave the wife $400,000 contributions and a further $300,000 for future needs which represented a division of 4.6 per cent of contributions and 3.4 per cent for future needs. The asset pool in that case is nearly 3 times the asset pool in this case.
Counsel for the wife submitted that the wife should receive an adjustment of between 27.5 per cent and 30 per cent of the non-superannuation pool for contributions and a further 10 per cent for future needs factors. He submitted that the parties combined superannuation should be adjusted so that the wife receives 45 per cent of the superannuation and the husband receives 55 per cent. He relied upon authorities, including Jabour & Jabour, to urge the court to adopt a holistic assessment of the party’s respective contributions.
That proposal would result in the wife receiving non-superannuation assets of between $594,585 and $648,637 and superannuation of $345,224, being the wife’s retention of her own entitlements of $114,303 plus a split of $230,921 from the husband’s entitlements. The proposed adjustment is a division of the combined pools as to 32 to 34 per cent in favour of the wife and 66 to 68 per cent in favour of the husband.
Counsel for the wife submitted that I should find that the joint efforts and contributions of the parties during the relationship should be assessed as equal and the adjustment in the wife’s favour submitted by him was appropriate having regard to the fact that the wife’s significant non-financial contributions were made to enhance the value of the most valuable asset, the family home. He urged the court to have regard to the increase in value of that asset, from $925,000 at the commencement of cohabitation to $2 million, as at the date of trial. There was no submission about the increase in value of the property, which would have occurred, even if the renovations had not been carried out, by virtue of an increase in the market value of real estate during the period between cohabitation and the date of trial. There were also no submissions, and indeed it would almost be impossible to do so, to apportion the respective non-financial contributions of each party to the renovations, and the consequential increase in value of the Suburb C property.
The Full Court in Aldrin & Celona [2021] FedCFamC1A 16 (“Aldrin & Celona”) recently addressed the manner in which contributions, for the purposes of the Act should be assessed, at [12]:
In this vein, and having regard to many of the challenges advanced in this appeal, it should be reiterated that the identification and assessment of the parties’ respective contributions for the purposes of the Act is to be approached holistically (see Dickons v Dickons (2012) 50 Fam LR 244 at [21], [24] and [26]; Pearce & Pearce [2016] FamCAFC 14 at [101]; Jabour v Jabour (2019) 59 Fam LR 475 at [64]; Horrigan &Horrigan [2020] FamCAFC 25 at [35] and the cases there cited). Mathematical precision is not required and has long been eschewed (see Norbis v Norbis (1986) 161 CLR 513 at 522–523).
In Aldrin & Celona, the Full Court did not find fault in the adjustment by the trial judge of the parties assets, except to the extent that the value of an asset of the husband as at the date of commencement of cohabitation was not taken into account when assessing the respective initial contributions of the parties. In that case the parties’ relationship was for less than four years with a seven year age discrepancy. Unlike this case, both parties had made initial financial contributions, with the wife’s equating to around 25 per cent of the asset pool at commencement. The trail judge assessed the entitlement of the parties as to 30 per cent to the wife and 70 per cent to the husband, which included an assessment of 5 per cent for future needs.
In this matter, it is clear that the husband made an overwhelming financial contribution at the commencement of the relationship in terms of the assets he held at that date, and that his income earned during the relationship was also a significant financial contribution, as opposed to the financial contribution made by the wife. He also applied a significant portion of his capital assets during the relationship towards renovation costs and other living and ancillary expenses, including contribution towards a car for the wife and her holiday to Country N. I accept that each party also made contributions within their respective skills of a nonfinancial nature, with the husband carrying out renovations to the property and the wife contributing by reason of her design, project management skills and contacts. I also accept that the wife made a greater contribution as a homemaker than the husband during the six years of cohabitation.
The submissions of the wife’s counsel, as to the appropriate assessment of the wife’s contributions towards both the non-superannuation and superannuation pools, are significantly outside the range of possible outcomes and are not in accordance with the authorities. Whilst I accept that the wife’s contributions to design and project management of the renovations carries weight, in this case the husband has also made significant non-financial contributions to the renovations to the property. Those respective non-financial contributions to the renovations should be regarded as effectively equal. However, the husband’s financial contributions, namely his ownership of an unencumbered property at the commencement of the cohabitation, his lump sum cash contributions towards the renovations, by liquidating pre-existing assets and the contributions of his superior income, must also be accorded very significant weight. I am also cognisant of the respective financial and non-financial contributions of the parties, other than their respective contributions to the renovations.
Having regard to my findings as to contribution and weighing up and assessing the myriad of contributions of the parties, both financial and non-financial, direct and indirect, at the commencement of the relationship, during the relationship and post separation, and their contributions as homemaker, I assess those contributions as 9 per cent to the wife and 91 per cent to the husband.
In terms of future needs, I have addressed the relevant considerations earlier in these reasons and conclude that there should be a further adjustment in favour of the wife of 10 per cent. I am satisfied that an overall division of property as to 19 per cent to the wife and 81 per cent to the husband will result in a just and equitable division of property between the parties.
Adjustment of Interests
Both counsel in their final submissions emphasised the manner in which the superannuation and non-superannuation pools should be considered. There were no submissions about whether I should adopt a two pool approach (Norbis & Norbis (1986) 161 CLR 513) or a global assessment, but each proceeded to make respective submissions on that basis. I intend to apply my determination of the appropriate adjustment for both superannuation and non-superannuation pools as there were no persuasive submissions why the two pools should be treated in a different manner.
On the asset pool as determined by me a division of assets will result in the wife receiving $556,565, which will be a cash payment of $410,804 together with superannuation entitlements of $145,761. She will also retain her motor vehicle, personal possessions and the part property payment. The husband will retain non-superannuation assets of $1,751,322 and superannuation entitlements of $621,405, which includes the notional amount of $113,393, which the husband withdrew from his superannuation funds and applied towards his legal fees.
I will also make orders providing for the wife to retain her superannuation and a superannuation split from the husband’s larger Super Fund 1 fund in the sum of $31,458. I note that procedural fairness has been provided to the trustee of the fund, who requested amendments to the orders as proposed by the parties. I will make orders in accordance with the requested amendments.
Counsel for the wife submitted that the wife should receive a payment in two tranches, to enable her to re-house herself prior to receiving a payment of capital. There were no submissions to the contrary from counsel for the husband and I will therefore adopt that approach.
The minutes of orders proposed by the wife in her Case Outline document include an order that pending the final payment to the wife, the husband should continue to pay the wife the sum of $400 per week spousal maintenance, in accordance with the orders I intend to make. Neither party made submissions about whether the periodic spousal maintenance order should continue pending final payment. Having regard to the husband superior financial position, I consider it appropriate that the spousal maintenance payment be discharged upon payment of the final payment to the wife, and I accordingly intend to make an order as sought by the wife for spousal maintenance payments to continue until that time.
The remaining matter to be decided is whether or not the husband should pay the costs when the matter was listed for trial on 26 August 2021. On that day the matter was unable to proceed for two reasons:
(a)there was no retrospective valuation of the Suburb C property as at the date of commencement of cohabitation;
(b)according to the wife, the husband had failed to properly disclose various withdrawals from his superannuation entitlements.
The wife seeks an order that the husband should pay her costs thrown away on that day because the husband had failed to properly disclose the withdrawals of monies from his superannuation fund and the manner in which he had funded his legal costs in the preceding.
The husband opposes any order for costs and submits that the usual rule that each party should be responsible for their own costs should apply. He submits that neither party sought a retrospective valuation of the Suburb C property and that the husband should not be blamed or penalised for the failure of both parties to do so. It was also submitted that the husband had provided evidence that his superannuation had decreased and that should have been apparent to the wife that there had been withdrawals from his accountants.
Furthermore the matter was not reached until the afternoon of the hearing and therefore the hearing time available to the parties would not have been significant and that the parties were engaged in negotiations throughout the morning.
Section 117(1) of the Act, states, subject to the provisions of s 117(2), that the general rule in proceedings in this court is that each party to proceedings, shall each bear his or her own costs.
Section 117(2) of the Act provides that if the court considers there are circumstances which would warrant an order for costs, the court may make such order as it considers just.
Section 117(2A) of the Act provides, that in considering what order (if any) should be made for the payment of costs, the court shall have regard to the financial circumstances of each of the parties, whether any party is legally aided, the conduct of the parties to the proceedings, whether the proceedings were necessitated by the failure of a party to comply with previous orders of the court, whether any party has been wholly unsuccessful in the proceedings, whether either party has made an offer in writing to resolve the proceedings and any other matters the court considers relevant.
In the Marriage of I & I (No 2) (1995) 22 Fam LR 557, the Full Court said that the relevant matters in s 117(2A) must be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs.
Taking into consideration the factors referred to in s 117(2A) of the Act, to the extent applicable in this case, I am not persuaded that there are overall circumstances which justify the making of an order for costs for the costs of 26 August 2021. I do not propose to make any order for costs.
I certify that the preceding one hundred and thirty-five (135) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 28 October 2021
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