Dieu & Dieu

[2023] FedCFamC2F 547

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Dieu & Dieu [2023] FedCFamC2F 547

File number(s):

PAC 2269 of 2021

Judgment of:

JUDGE MURDOCH

Date of judgment:

17 May 2023

Catchwords:

 FAMILY LAW – PROPERTY SETTLEMENT – Where the parties were married for 18 years – where there are two adult children of the relationship – where the husband became a litigant in person during the trial as leave was granted to his legal representatives arranged through the Commonwealth Family Violence and Cross-Examination of Parties Scheme to withdraw from the proceedings – where the husband amended the relief he sought during final submissions so that both parties now seek to retain the same item of real property - where substantial issue exists as to the nature and composition of the property pool - where there is a remarkable lack of evidence by both parties to ground the findings of fact they seek - where the wife’s Kennon claim is unsubstantiated - where the husband has had the benefit of both items of real property since separation – where the husband has been entirely deficient in his provision of full and frank disclosure -  contributions of the parties assessed as equal – adjustment made to the wife on the basis of the husband’s non-disclosure and financial conduct post-separation.

Legislation:

Family Law Act1975 (Cth) ss 75(2), 79, 79(4)(d)-(g), 102NA, 106A

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 6.02, 6.06

Cases cited:

Bevan & Bevan [2013] FamCAFC 116

Black v Kellner (1992) FLC 92-287

NHC & RCH [2004] FamCA 633

Edgehill & Edgehill [2007] FamCA 1102

Fields & Smith [2015] FamCAFC 57

Gollings & Scott [2007] FamCA 397

Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) [2003] FamCA 395

Horrigan & Horrigan [2020] FamCAFC 25

Kennon v Kennon [1997] FamCA 27

Kowaliw and Kowaliw [1981] FamCA 70

Norbis v Norbis [1986] HCA 17

AJO & GRO [2005] FamCA 195

Stanford & Stanford [2012] HCA 52;

Trevi & Trevi [2018] FamCAFC 173;

Weir v Weir (1993) FLC 92-338.

Division:

Division 2 Family Law

Number of paragraphs:

196

Date of hearing:

20 – 22 March 2023

Place:

Parramatta

Counsel for the Applicant 

Mr Teoh

Solicitor for the Applicant 

Sydney Solicitors

The Respondent: 

Litigant in person

ORDERS

PAC 2269 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS DIEU

Applicant

AND:

MR DIEU

Respondent

order made by:	JUDGE MURDOCH
DATE OF ORDER:	17 May 2023

THE COURT ORDERS THAT:

The B Street, Suburb C Property

1.The husband retain and the wife have no right, entitlement or interest in the property situate at and known as B Street, Suburb C in the State of New South Wales being the whole of the land in Folio Identifier …  (the “B Street, Suburb C Property”).

2.The husband indemnify and keep indemnified the wife in respect of any current of future liabilities in respect of the B Street, Suburb C property.

The D Street, Suburb C Property  

3.Within 28 days from the date of these Orders the husband do all such things as are necessary to:-

(a)pay to the wife the sum of $240,966;

(b)transfer to the wife at his expense all his right, title and interest in the property situate at and known as D Street, Suburb C in the State of New South Wales, being the whole of the land in Folio Identifier … (“the D Street, Suburb C property”);

(c)discharge at his expense the loans to the ANZ Bank secured by way of mortgage against the D Street, Suburb C property being registered mortgage dealing numbers … and … (“the D Street, Suburb C mortgages”);

(d)pay all outstanding fees and disbursements of the husband to F Lawyers Pty Ltd and cause the removal of the caveat on the D Street, Suburb C property, being registered dealing …; and

4.Simultaneously with the husband’s compliance with Order 3 the wife shall:-

(a)sign all documents prepared by the husband at his expense to discharge the D Street, Suburb C mortgages;

(b)do all such things as are necessary to remove the caveat on the B Street, Suburb C property  being registered dealing ….

5.That pending the husband’s compliance with Order 3 above the husband be restrained from causing the monies in the Bank G Account #...88 to fall below a value of $250,000 and doing any act or thing so as to transfer, mortgage, assign or adversely deal with his interest in the B Street, Suburb C property, save and except to comply with these orders.  

The ANZ Account and Monies Held on Trust

6.That simultaneously with the husband’s compliance with Order 3 above the parties shall do all things necessary to apply the funds held on trust on behalf of the parties by Real Estate Agent H (“the monies held on trust”) in the following order and priority :-

(a)To close the parties’ ANZ One Offset Account #...32 including discharging any liability remaining therein;

(b)To pay to the wife 52.5% of the balance remaining of the funds; and

(c)To pay the remainder of the balance of the monies held on trust to the husband.

Residual Property

7.Subject to any other order to the contrary, the husband is to be solely, legally and beneficially entitled to the exclusion of the wife to all other real and personal property of whatsoever nature and kind in his ownership, possession and/or control as at the date of these Orders, including but not limited to money on deposit, shareholdings, insurance policies, motor vehicles and personal effects.

8.Subject to any other order to the contrary, the wife is to be solely, legally and beneficially entitled to the exclusion of the husband to all other real and personal property of whatsoever nature and kind in her ownership, possession and/or control as at the date of these Orders, including but not limited to money on deposit, shareholdings, insurance policies, motor vehicles and personal effects.

Section 106A Order

9.In the event that either party fails or neglects to sign any document pursuant to these Orders, a Registrar of the Federal Circuit and Family Court of Australia (Division 2) is hereby appointed to execute such documents in the name of the party in default so as to give validity and operation to these Orders pursuant to s 106A of the Family Law Act 1975 (Cth) upon being satisfied of such failure or neglect by way of affidavit evidence.

Costs and Finalisation

10.That within 14 days the wife is to file and serve any application for costs by way of a Minute of Order sought together with written submissions of no more than five pages and five annexures.

11.That within 14 days thereafter the husband is to file and serve any response to such application for costs by way of a Minute of Order sought, together with written submissions of more than five pages and five annexures.

12.That within two days thereafter has liberty to file further written submissions in reply of no more than one page. 

13.That unless a party formally objects by way of their Minute of Order, any application for costs will thereafter be determined in Chambers.

14.All extant applications are otherwise dismissed. 

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 Dieu & Dieu has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE MURDOCH

INTRODUCTION

1. These are proceedings for alteration of property interests pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”).

2. The parties commenced living together in 1998 and were married in 1999. They separated on 21 March 2017 and a divorce order was made on 28 April 2020.

3. There are two adult children of the relationship currently 22 and 18 years of age.

4. Substantial issue exists between the parties as to the nature and composition of the property pool.  The wife asserts that an adjustment should be made to any contribution finding in her favour as her contributions were made more onerous as a result of the husband’s perpetration of family violence.

   BACKGROUND

5. In these reasons a statement of fact is a finding of fact, unless it is obvious from the context that I am reciting the position of one of the parties.

6. Both prior to and during the course of the relationship three items of real property were purchased by the parties:-

   ·B Street, Suburb C, (“the B Street, Suburb C property”) registered in the husband’s sole name. This property has been tenanted in the past but is currently uninhabitable.

   ·D Street, Suburb C (“the D Street, Suburb C property’) registered in both parties’ names as tenants in common. The husband resides in this property.

   ·J Street, Suburb C (“the J Street, Suburb C property”). The J Street, Suburb C property has now been sold and the balance of proceeds of sale held in trust on behalf of the parties.

7. The parties commenced a relationship in 1989.

8. The B Street, Suburb C property was purchased in 1997 for $190,000 by the husband in his sole name prior to the parties commencing to live together. The husband applied the sum of $60,000 towards the purchase from his own savings and a loan was secured from Company K in the sum of $130,000 by way of mortgage over the property. The husband applied a further sum of $29,500 to the mortgage in 1997. The property was tenanted with the rental monies being paid either directly to the husband or applied towards the Company K loan.

9. In 1998 the husband commenced living with the wife in her parents’ home.

10. In early 1999 the parties purchased the D Street, Suburb C property as tenants in common for the sum of $250,000. It does not appear to be in dispute that a loan was secured by way of mortgage over the property in the sum of $200,000 from the ANZ bank.

11. The parties married in 1999. They continued to live with the wife’s parents subsequent to their marriage.

12. In 2000 the parties’ eldest child was born.

13. In 2001 the parties commenced living at the B Street, Suburb C property.

14. The parties’ youngest child was born in 2004.  

15. In 2010 the parties purchased the J Street, Suburb C property for $470,000.  Settlement occurred in 2010. At this time the loan secured by way of mortgage over the D Street, Suburb C property was approximately $76,000. The parties redrew some of the loan monies to pay the 10% deposit and the funds required to purchase the property, including the payment of stamp duty. A total loan of $590,000 was then secured by way of mortgage over both the D Street, Suburb C and J Street, Suburb C properties and the loan secured by way of mortgage over the B Street, Suburb C property was discharged at around this time. The parties have never resided in the J Street, Suburb C property and during the course of the relationship applied the rental income towards payment of the mortgage.

16. In mid-2012 the parties moved from the B Street, Suburb C property into the D Street, Suburb C property. The B Street, Suburb C property was thereafter tenanted.

17. On 21 March 2017 the parties separated on a final basis following an incident whereby the husband is alleged to have punched the wife and kicked her on her arm, leg and hip leaving her with bruises. The wife and two children vacated the D Street, Suburb C property on this day and commenced living with the wife’s parents. The wife did not return to live in any of the real properties subsequent to separation.

18. It appears that the husband was unable to live at the D Street, Suburb C property pursuant to a Provisional or Interim Apprehended Domestic Violence Order made restricting his behaviour and the D Street, Suburb C property remained vacant for several months.

19. On 24 July 2017 the Apprehended Domestic Violence Order was varied at the Local Court at Suburb L and the husband thereafter returned to live at the D Street, Suburb C property.

20. On 3 September 2017 a Final Apprehended Domestic Violence order was made protecting the wife and the parties’ eldest child from the husband for a period of one year. The husband was prohibited from approaching or contacting them other than through legal representatives.

21. On 28 September 2017 the husband was convicted of:

    ·two counts of stalk/intimidate intend fear of physical harm;

    ·two counts of common assault; and

    ·one count of assault occasioning bodily harm.

22. The husband entered into a good behaviour bond for a period of 12 months commencing on 28 September 2017 with a condition that he was to complete a mental health treatment plan.  

23. In September 2018 the wife withdrew the sum of $36,000 from the parties’ joint bank account.

24. In September 2018 the husband redrew the sum of $80,000 from the parties’ joint ANZ mortgage account.

25. In May 2020 the husband refinanced the B Street, Suburb C property with the Bank G such that the loan to Bank G secured by way of mortgage over of the property was $450,000. The husband asserts that he rented the property from December 2019 for 20 weeks at $250 per week and from July 2020 until June 2021 for the sum of $150 per week. The husband at no time advised the wife that he had refinanced the property in this manner.

26. The wife commenced these proceedings by way of her Initiating Application filed on 29 April 2021 and the husband’s Response to such application was filed on 4 June 2021.

27. On 8 June 2021 the matter was listed for a first return. Both parties were represented on this occasion and they entered into interim orders by consent broadly that, pending further order:

    ·The husband is entitled to sole occupation of the D Street, Suburb C property and is to be solely responsible for all rates and outgoings for the property.

    ·Within seven days the husband is to provide vacant possession of the B Street, Suburb C property to the wife.  Upon the wife occupying the B Street, Suburb C property she is to be solely responsible for all rates and outgoings (with the exception of land tax) payable for the property.

    ·The husband is to be solely responsible for the mortgage repayments on the B Street, Suburb C property.

    ·The parties are to be jointly responsible for the mortgage and statutory rates payable for the J Street, Suburb C property.  To this end the husband is to apply all rental monies received for the property towards those expenses with such rental income reducing each party’s financial obligations on this property equally.

    ·The parties do all things necessary to sell the J Street, Suburb C property including giving the tenants notice in writing of their intention to sell. Upon such sale the net proceeds to be divided equally between the parties.

    (“The June interim orders”)

28. The J Street, Suburb C property was sold on 18 June 2022 in circumstances where the wife alleges that the bank was threatening to sell the property as the mortgage had not been paid since 2019. The net proceeds of sale of the property (the value of which is in dispute) is currently held in the trust account of the sales agents, Real Estate Agent H.

29. The wife has at all times throughout these proceedings been legally represented. The husband has at various times been a litigant in person. On 27 January 2022 orders were made for the filing of a joint draft balance sheet and that the mandatory provisions of s102NA applied in the matter so as to prohibit cross-examination of either party by the other.

30. On 15 July 2022 the matter was listed for final hearing commencing 15 March 2023 and orders were made for the parties to file and serve a short updating affidavit by no later than 15 September 2022. No later than seven days prior to the trial the parties were to file and serve:-

    ·A Costs Notice;

    ·an Undertaking as to Disclosure;

    ·a Joint Agreed Chronology;

    ·a Joint Agreed Statement of Issues;

    ·a Draft Balance Sheet particularising the main contentions in dispute.

31. The parties were further directed to notify any court expert no later than 14 days prior to the trial that they were required for the purposes of cross examination and in the event no such notice was given any such expert report would be admitted into evidence without cross examination, subject to any objection.

32. The wife filed an Amended Application for Final Orders on 18 March 2022.

33. The husband filed an Amended Response to Final Orders on 24 March 2022.

    CONDUCT OF THE HEARING

34. The husband was represented by counsel on the first day of the final hearing as arranged through the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”). 

35. At the first mention of the matter the court had not received any documents pursuant to the directions of 15 July 2022, nor had a draft joint balance sheet been filed pursuant to the directions of 27 January 2022 and 15 July 2022.  After discussions with the wife and husband as to the relief sought by each of them the court was advised that the wife was no longer pressing for a substantial portion of the relief sought by her in her amended application.  As the majority of the orders sought by the husband in his Amended Response were not capable of being made by this court, a direction was made on the first day of the hearing that the parties were to each file a Short Minute of Order.  Further directions were made for the filing of the joint balance sheet, a costs notice and each party’s most recent superannuation statement.

36. During the first day of the hearing each of the parties identified the material relied upon by them. No objections were taken to the evidence relied upon by each of the parties and counsel for the husband advised that only the wife and adult son were required for the purposes of cross examination. The wife filed a single draft balance sheet, an Outline of Case (Final Hearing) and costs notice throughout the course of the day and evening of 20 March 2023.

37. At the mention of the matter on the second day of the final hearing counsel for the husband made an oral application for himself and his instructing solicitor to withdraw from the matter in circumstances where he submitted that:

    ·A minute of order was prepared on behalf of the husband and was rejected by him.

    ·The husband sought to proceed on the basis of an earlier minute of order contrary to the advice of his solicitor and counsel.

    ·Counsel for the husband and his instructing solicitor had lengthy discussions with the husband in relation to items on the balance sheet and the husband rejected the advice of his instructing solicitor and counsel in this regard.

    ·The husband’s legal advisors were in a position where they were caught between their duty to the court and following the instructions of the husband which, it was submitted, were unreasonable having regard to the nature of the matter.  

38. Leave was granted for the husband’s legal representatives to withdraw from the proceedings and counsel was excused. The husband was afforded the opportunity to obtain some legal advice from a duty solicitor and confirmed he had done so on the matter being re-mentioned. The husband was asked whether he wished to make an application for an adjournment in circumstances where he would not be permitted to cross examine the wife and would have to conduct the hearing on his own behalf. The husband was unwavering and unequivocal in his position, even after a further short adjournment to consider his options that he wished to proceed with the final hearing and so the final hearing proceeded.  

1. The husband advised the court that he relied upon a former joint draft balance sheet and this was tendered and marked as Exhibit H1.

   THE COMPETING PROPOSALS

2. The wife seeks orders on a final basis in accordance with the minute of order tendered during the course of the hearing and marked as Exhibit W20 broadly as follows:-

   ·The husband transfer the D Street, Suburb C property to the wife unencumbered with the husband to meet all costs associated with such transfer. To this end the husband is to pay all monies outstanding on the loan secured by way of mortgage over the D Street, Suburb C property and discharge the mortgage. Upon the husband’s compliance the wife is to provide to the husband an executed discharge of a caveat lodged by her against the property.

   ·That the husband indemnify the wife in respect of any liabilities relating to the B Street, Suburb C property.

   ·That the proceeds of sale of the J Street, Suburb C property be applied:

   6.1 To pay to the Wife the amount of her CAPITAL GAINS TAX Liability (including reimbursing her for any payments she has already made in respect of her CAPITAL GAINS TAX Liability);

   6.2 To pay to the Husband the amount of his CAPITAL GAINS TAX Liability (including reimbursing him for any payments he has already made in respect of her CAPITAL GAINS TAX Liability); and

   6.3 In respect of the balance, to be paid to the Wife.

   ·Each party otherwise retain all property in their power, possession or control.

   ·That an order pursuant to section 106A of the Act be made.

   ·That each of the parties be at liberty to re-list the matter on 7 days written notice to the other in respect of the implementation of these Orders.

   ·That the husband to pay the wife’s costs of the proceedings.

3. No Minute of Order was received at any stage from the husband during the course of the trial amending the relief he sought from the court. Thus the hearing proceeded on the basis that the husband sought the relief as set out in the Response filed by him on 24 March 2022 that:

   2.Husband retain 100% ownership of [B Street, Suburb C] property without any complications. Since wife has not made any contributions, financial or otherwise, either towards its purchase price or mortgage repayments and it remains separate from the relationship.

   3.[D Street, Suburb C] property is to be split 50/50.

   4.Husband or wife buys 50% of [D Street, Suburb C] property at the valuation price.

   5.Simultaneously, within 3 months of the date of these orders and subject to compliance by the wife with order 3 and 4, the husband or wife do all acts and things and sign all documents necessary to discharge the mortgage of the title over the [D Street, Suburb C] property.

   6.In relation to [J Street, Suburb C] Property

   6.1  Within 7 days from the date of these orders, the Sales Agent will do all things to release the surplus funds 50/50 to husband and wife's nominated bank account.

   6.2  Within 7 days from these orders, the Wife is pay Husband $2,172.03 with compound interest to an account nominated by the husband for breaching court order for not making monthly ANZ bank mortgage repayment from 15 of June to 15 of November 2021.

   6.3  Within 14 days from these orders, the Wife is to pay Husband $25,000 to an account nominated by the Husband to managed and resulting the sell of property [J Street, Suburb C] NSW.

   7.Husband and wife is responsible for their legal expenses.

   8.Husband and wife is responsible for their CAPITAL GAINS TAX.

   9.From the date of compliance by the wife with Order 2, the wife indemnify, and keep indemnified, the husband from and against:

   9.1  all liabilities arising out of, or in connection with, the [B Street, Suburb C], [J Street, Suburb C] and [D Street, Suburb C] Properties including, but not limited to, any mortgage repayments, rates, utilities, taxation (including any CAPITAL GAINS TAX) and duties (including stamp duty); and

   9.2  all claims, actions, suits or demands of whatsoever nature arising out of, in connection with, the three Properties, whether past, present or future.

   10.Subject to any other order to the contrary, the Wife be solely, legally and beneficially entitled to the exclusion of the husband, to all other real and personal property of whatsoever nature and kind in her ownership, possession and/or control as at the date of these Orders, including but not limited to, money on deposit, shareholdings, insurance policies, motor vehicles and personal effects.

   11.Subject to any other to the contrary, the Husband be solely, legally and beneficially entitled to the exclusion of the Wife, to all other real and personal property of whatsoever nature and kind in his ownership possession and/or control as at the date of these Orders, including but not limited to, money on deposit, shareholdings, insurance policies, motor vehicles and personal effects.

   12.The husband and the wife will retain what is in their respective superannuation fund.

   13.In relation to spousal maintenance

   13.1  There will be no spousal maintenance whatsoever at the date of these orders.

   13.2  There will no payment to wife relation to property valuation and balance sheet at the date of these orders.

   14.In relation to child support:

   14.1  The Husband pay child support with the current monthly amount of $786.33 until 2022 that is when the child becomes an adult (18 years old).

   14.2  The Wife pay as and when they fall due all costs of school fees for her current school or any other agreed school which the [Ms M] attends from time to time, and other incidental expenses, textbooks, uniforms, technology support materials such as laptop and iPad, extra-curricular and sporting activities.

   15.Husband, Wife, [Ms M] and [Mr N] are all adults. Therefore, should Be responsible for his or her own private health insurance at the date of these orders (Husband, Wife,  [Ms M]and [Mr N] never had health insurance).

   16.Within 7 days from the date of these Orders, the Wife is to return to the Husband diamond wedding ring with matching diamond earrings and gold rings which were given to the Husband by his father.

   17.Within 7 days from the date of these Orders, the Wife is to return to the Husband collectable old coins and Bank notes which were taken from property [D Street, Suburb C].

   18.Each party be at liberty to re-list the matter on 14 days written to the other in respect of the implementation of these Orders.

   19.If either party refuses or neglects to sign or execute and return a document within 21 days of a written request to do so then the Registrar of the Parramatta Registry of the Federal Circuit Court of Australia is hereby appointed under Section 106A of the Act to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a solicitor or self-represented on behalf of the requesting party as to the said neglect or refusal.

   20.The Husband and Wife pay for his and her all legal costs and incidental to these proceedings.

4. Throughout the hearing of evidence the parties agreed that:-

   ·The husband would retain the B Street, Suburb C property.

   ·An order be made pursuant to section 106A of the Act.

   ·Each of the parties be granted liberty to relist the matter on 7 days written notice to the other party in relation to the implementation of orders.

5. At the commencement of final submissions when the court was clarifying with the husband the relief he sought as set out in his Amended Response the court was advised for the first time that the husband now sought orders from the court that, broadly:-

   ·The wife would retain the B Street, Suburb C property.

   ·The wife would transfer the D Street, Suburb C property to the husband.

   ·That the monies in trust from the sale of the J Street, Suburb C property be divided equally but that from the wife’s share she is to pay “her share of council rates, water rates and breach of mortgage repayments.”

   ·The husband no longer pressed for an order that the wife return her wedding rings to him but pressed for orders that the wife return to the husband the two gold rings given to him by his late father and the collectable coins and bank notes.

   ·Each party would otherwise retain what they in their possession.

   ·That if an order is made that the wife retain the D Street, Suburb C property and the husband is to discharge the liability owing to his prior solicitors, the caveat registered against title by the husband’s prior solicitors would be removed by way of an order being made that the husband pay such outstanding costs. If the husband failed to do this then the funds in the Bank G Account would be applied towards such payment.  During the course of final submissions the court was advised that the wife consented to this proposal.

6. The issues to be determined in this matter therefore include:-

   ·The property that each party is to retain in circumstances where, by the conclusion of the trial, both parties sought to retain the D Street, Suburb C property.

   ·The application of the net proceeds of sale of the J Street, Suburb C property.

   ·If the D Street, Suburb C property is to be transferred to the wife whether the husband should be responsible for discharging a loan secured by way of mortgage over the property.

   ·If the D Street, Suburb C property is to be transferred to the wife, the mechanics of ensuring that the caveat registered over that property by the husband’s former solicitors, F Lawyers, is discharged. 

   ·The significant asserted notional “add backs” to the balance sheet by the husband.

   ·The wife’s assertion that an adjustment should be made in her favour to the contribution finding as a result of the husband’s perpetration of family violence.

   THE WITNESSES

7. The parties’ eldest child was cross examined by the husband. His cross examination did not assist the court in any meaningful manner.

8. The husband was defensive, argumentative and evasive in his cross examination.  He had to be directed by the court on no less than five occasions to simply answer the questions asked of him by counsel but he appeared to be unable to comply with this direction. I approach the husband’s evidence with some caution.

   THE STATUTORY REGIME

9. In determining claims for alteration of property interests pursuant to s 79, I am required to:

   (a)make findings as to the identity and value of the property, liabilities, and financial resources of the parties, or either of them, at the time of the hearing and determine the legal and equitable interests of the parties in such property;

   (b)consider, identify and assess the contributions by the parties to the acquisition, conservation and/or improvement of their property, including financial and non-financial contributions and any contributions to the welfare of the family before, during and after the relationship came to an end;

   (c)after consideration of altering the interests in the property pool on the basis of contributions, to consider whether there should be any further adjustment to either of the parties on account of the matters set out in s 79(4)(d)-(g) of the Act, including any relevant considerations pursuant to s 75(2) of the Act; and

   (d)ensure that the orders to be made are just and equitable in all the circumstances.[1]

   [1] Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143; [2003] FamCA 395 at [39].

   DISCLOSURE ISSUES AND CREDIT

10. There is a long line of authorities setting out in clear and unequivocal terms the onus on parties to make a full and frank disclosure of all their financial circumstances: Black v Kellner (1992) FLC 92-287. The duty is absolute and is a continuing onus throughout the litigation process. It has been codified in Chapter 6 of the Federal Circuit and Family Court of Australia Rules (2021) (“the Rules”). It is critical to the jurisdiction and is fundamental to achieving justice and equity as between the parties.

11. I accept the wife’s assertion that the husband has not provided financial disclosure as required by the Rules as set out further later in these reasons. This includes the husband not advising the wife that he was allegedly no longer in paid employment and had received a sum of $13,000 lump sum payment of unpaid leave from his former employer in approximately January 2023 and the provision of documents evidencing his financial circumstances. Further, the husband’s oral evidence in chief was that he simply did not know whether his financial circumstances have significantly changed since the filing of his financial statement. In those circumstances, I find that the guidelines provided to trial judges to not be unduly cautious in making findings of fact in favour of the innocent party as identified by a range of cases considered by the Full Court including Black v Kellner (1992) FLC 92-287 and Weir v Weir (1993) FLC 92-338 ought to be applied as against the husband.

    THE BALANCE SHEET

12. There are significant disputes between the parties as to the constitution of the property pool. The failure by the husband to fulfil his mandatory obligation to provide a continuing full and frank disclosure of his financial circumstances means that there are significant issues with my ability to determine the true value of the parties’ superannuation and non-superannuation property. This failure was not rectified in any manner by the wife undertaking any form of the forensic options available to her including the filing of subpoena to produce documents. There are significant gaps in the evidence of both parties. Neither party availed themselves of the opportunity afforded to them by the court on 15 July 2022 to file a short updating affidavit. The lack of evidence by both parties to ground the findings of fact they seek as particularised later in these reasons further amplifies the difficulty in making the required determinations in this matter.

13. This matter has been on foot since April 2021. Trial Directions were made in the matter on 15 July 2022. The parties have had ample opportunity to ensure the evidence that grounds the relief they each seek is before the court. Having regard to the overarching purpose of the Court to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible pursuant to s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and Rule 1.04 of the Rules 2021 I will simply have to determine the superannuation and non-superannuation property of the parties as best I can in all the circumstances. Each of the parties are bound by the case they ran at trial and the evidence they relied upon to support it, including omissions.

14. On the first day of the final hearing I made a direction for both the parties to provide a joint balance sheet by no later than 9:00am the following day.  No joint balance sheet was provided. Instead, each of the parties tendered an individual balance sheet recording their asserted value and purporting to list the value for each item asserted by the other party.  The other party’s asserted value does not always accord with what is actually asserted by that party in their individual balance sheet.  In those circumstances I can only proceed on the basis that each party’s balance sheet records the assets and values asserted by them only. I will ignore any value that is asserted to be that of the other party.  

15. The amended balance sheet of the wife confirms her submission to the court that she no longer pressed for various items listed to be notionally “added back” to the property pool available for distribution. The husband also appeared to concede during the course of his final submissions that he no longer pressed for certain items to be added back, however in circumstances where the husband was a litigant in person throughout the majority of the hearing it is appropriate that I record and explain my findings with respect to each of the written entries on his draft balance sheet so as to avoid any misunderstanding on my part as to the husband’s position.   

    
    

16. The balance sheet as contended by each of the parties is as follows:-

Ownership		Description	Wife's Value	Husband's Value
ASSETS
H	B Street, Suburb C	$1,475,000	$1,244,010
J	D Street, Suburb C	$1,575,000	$1,472,655
W	Bank O #...25	$5,008	$3,400.00
W	Bank O Account #...83	Closed	$106.00
W	ANZ #...98	$2,316	$106
H	CBA Account #...72	NK	$0.15
H	CBA Account #...32	NK	$517.51
H	ANZ Account #...31	NK	CLOSED
H	ANZ Account #...18	NK	CLOSED
H	Bank P Account #...51	NK	$1,069.37
W	Cash	NIL	NK
H	Bank G Everyday #...88 (Offset account in relation to mortgage taken by Husband over property at B Street, Suburb C)	E$407,822	$36,018.23
H	Bank G Flexible Account #...68	NK	$350,000.00
J	Proceeds of sale held in trust account of Real Estate Agent H for the parties in respect of sale of J Street, Suburb C	$68,742	$71,272.00
H	Motor Vehicle 1	E$2,000	E$500
W	Motor Vehicle 2	E$5,000	E$8,000.00
W	Motor Vehicle 3	NK	E$4,000.00
H	Jewellery	E$1,000	E$30,000.00
W	Jewellery	E$1,000	$30,000
H	Coins and old bank notes collection	NK	E$25,000.00
ADDBACKS
Ownership		Description	Wife's Value	Husband's Value
W	Monies withdrawn from the Joint ANZ One Account in September 2018	$36,800	$36,800
H	Redraw from the Joint ANZ One Mortgagee account in September 2018	$80,000	$80,000
Re: J Street, Suburb C
W	Council Rate from 31 May 2017 to 30 November 2021 $6,170.43	$3,085.22
W	Water rate from 26 April 2017 to 12 January 2022 $3,064.57	$1,532.29
W	Strata Levy from March 2017 to 12 January 2022 $11,886.06	$5,943.03
W	Insurance – 15 September 2017 to 12 January 2022 $2,078.22	$1,039.11
W	Maintenance March – 2017 to December 2021 $10,642.46	$5,321.23
,	W	Mortgage repayment from 14 January 2019 to 15 July 2019 from 15 July 2019 from account ending #...31 $18,270.46	$9,135.23
W	Land Tax from 2017 to 2022 $5,853.36	$2,926.68
W	Wife breached court order for not making monthly mortgage repayments of $724.01 from 15 June to 15 November 2021 $724.01 x 6 = $4,344.06	$4,344.06
Re: B Street, Suburb C
W	Council Rate from April 2017 to 31 March 2021 $7,053.89	$3,526.94
W	Water Rate from 24 April 2017 to 31 March 2021 $6,017.23	$3,008.62
W	Insurance from 2017-2021 $4,345.03	$2,172.52
W	Maintenance and Renovation from May 2019 to 6 June 2021 $51,160.30	$25,580.15
W	Mortgage interest repayment for B Street, Suburb C from 14 February 2020 to 14 June 2022 $23,592.30	$11,796.15
W	Land tax from March 2017 to 2022 $23,413.44	$11,706.72
W	Loss of rent from 6 June 2021 to 7 June 2022 at $150 per week $7,800	$3,900
Re: D Street, Suburb C
W	Council rate from April 2017 to March 2023 $9,185.54	$4,592.77
W	Water Fixed Charges from April 2017 to July 2022 $4,194.97	$2,097.49
W	Insurance from 22 September 2017 to 22 September 2023 $8,224.33	$4,112.17
W	Maintenance from September 2017 to July 2022 $8,850. Installed 5 surveillance cameras after the house was burgled in 2018	$4,425.00
SUPERANNUATION
Ownership		Description	Wife's Value	Husband's Value
W	Super Fund 1	$195,236	$195,236
H	Super Fund 2	E$252,563
LIABILITIES
Ownership		Description	Wife's Value	Husband's Value
H	Bank G Mortgage Account #...68	$450,000	$450,000
J	ANZ One Offset Account #...32	$1,323	$1,145.09
W	CAPITAL GAINS TAX ATO liability	E $20,000
H	CAPITAL GAINS TAX ATO Liability	$10,000
H	Legal Fee – Q Lawyers  22.2.21	$500
H	Legal Fee – R Lawyers 23.2.21
H	S Lawyers 2.3.21
H	T Lawyers 14-5 & 16-5 2021 $330 and $3,300	$3,630
H	F Lawyers 17.6.21	$110
H	T Lawyers New South Lawyer	$560.18
H	Federal Court 4.6.21	$360
H	Federal Court 5.8.21	$205
H	S Lawyers 26 May 2021 $2,500, 21 June 2021 $6,200 and 23 June 2021 $8,110.60	$16,810.60
H	F Lawyers 25-7-2021 – current	$66,500
H	U Lawyers 18 August 2022 for submitting Affidavit and Application in a proceeding	$130
H	Child Support from January 2018 to December 2022	$51,217.87

BALANCE SHEET FINDINGS

Assets

Item 1: B Street, Suburb C

1. The single expert, Mr V, prepared a valuation of the property at 8 B Street, Suburb C dated 11 March 2022. The property was valued at $1,475,000 and Mr V’s valuation was not challenged.  The husband did not place any adversarial expert evidence before the court to ground his asserted value.  I find the value of the B Street, Suburb C property to be $1,475,000.

   Item 2: 30 D Street, Suburb C

2. A single expert prepared a valuation of the property at D Street, Suburb C as at 14 March 2022. The property was valued at $1,575,000 and the single expert was not challenged by way of cross examination. The husband did not place any adversarial expert evidence before the court to ground his asserted value.  I find the value of the D Street, Suburb C property to be $1,575,000.

   Item 3: Wife’s Savings Account Bank O #...25

3. There is no independent evidence before the court to support either party’s contention as to the current savings held by the wife in this bank account other than the asserted value of same by the parties.  Rather strangely the husband asserts that the wife‘s savings in this account are less than that asserted by the wife herself.  In those circumstances I am satisfied I can safely make a finding on the wife’s own concession that she has savings in the Bank O bank account #...25 in the sum of $5,008.

   Item 4: Wife’s Savings Account Bank O Account #...83

4. Again there is no independent evidence before the court to support either parties’ contention as to the current savings (if any) held by the wife in this bank account.  The wife asserts by way of her balance sheet that this account is closed.  The husband asserts that there is a sum of $106 currently in the account but does not provide any evidence to support such an assertion.  In circumstances where the value in any event is de minimis, I am satisfied I can safely make a finding that the account is now closed.

   Item 5: Wife’s Savings Account ANZ #...98

5. There is no independent evidence before the court to support either party’s contention as to the current savings held by the wife in this bank account.  Again the husband asserts that the wife’s savings in this account are less than that asserted by the wife herself.  In those circumstances I am satisfied I can safely make a finding on the wife’s own concession that she has savings in the Bank O bank account #...98 in the sum of $2,316.

   Items 6 – 7 and 10: Commonwealth and Bank P Bank Accounts of the Husband

6. The wife asserts that the husband has not provided updated disclosure in respect of these accounts. The husband conceded he had not provided updated disclosure of this account and that he last provided disclosure “late last year or early this year” but could not provide a particular date. No subpoena was issued to the financial institutions. The only evidence I have with respect to any of these accounts is historical and of little assistance in assisting in determining the current value of the husband’s savings.

7. In all the circumstances I must, in the interests of dealing with this matter as expeditiously as possible, accept for the purposes of the balance sheet that the savings in each of the accounts are as asserted by the husband. The husband’s lack of disclosure however will be a consideration when determining any adjustments to be made to the contribution findings by way of section 75(2)(o) of the Act as set out later in these reasons.

   Items 8 and 9: Husband’s ANZ Accounts

8. The wife asserts that the husband has not provided updated disclosure in respect of both ANZ accounts. Again no subpoena were issued.

9. The husband’s position is that “all ANZ accounts have been closed”. When asked if he had provided disclosure with respect to the closing of this account the husband’s oral evidence was that “the account related to the J Street, Suburb C property.” The wife does not give any evidence as to these bank accounts and merely lists in the balance sheet “not known.” Again the wife did not avail herself of the opportunity to undertake any form of forensic investigation. In circumstances where the only evidence before the court is that of the husband that both these accounts have been closed, I am satisfied and find that both the ANZ bank accounts in the husband’s name are closed and these items will be removed from the balance sheet.

   Item 11: Cash held by Wife

10. The husband asserts that the wife is holding a sum of cash that she has not disclosed to the husband. He is not aware of the sum of cash or where the wife received such monies. The wife disputes this assertion. The husband has not discharged his evidentiary onus to ground such a finding and this item will be removed from the balance sheet.

    Item 12: Husband’s Bank G Everyday #...88

11. The wife asserts this account has savings of “E$407,822” but the husband has provided “limited” disclosure of this account. Again there is no independent current evidence before the court – evidence which was easy to obtain. The wife asserts that limited disclosure of this account had been provided by the husband. The husband conceded during the course of submissions that the Bank G Everyday Account had a value of “around $400,000.” The wife ultimately conceded this value. Having regard to the unsatisfactory nature of the evidence the only finding I can safely make is that the account has $400,000 in savings.  

    Item 13: Bank G Flexible Account #...68

12. The wife asserts that she does not know the balance of this account. Again, no subpoena was issued by the wife to establish the monies in this account. In all the circumstances I must, in the interests of dealing with this matter as expeditiously as possible, accept and find the savings in this account as asserted by the husband.

    Item 14: Proceeds of sale of the J Street, Suburb C Property

13. It is remarkable that there is no evidence, not even an assertion in an affidavit, as to the sum held in trust on the parties’ behalf from the sale of the J Street, Suburb C property. The wife deposes there is a “small surplus.” The parties are $2,532 apart in their contention. Both parties are responsible for giving evidence to ground assertions made by them.  So as to be able to deal with the matter I will adopt a cautious approach and accept the lowest figure asserted. To occasion justice and equity as between the parties I will make an order distributing these funds in the same proportions as found to be a just and equitable division of the property pool.

    Items 15- 17: Motor Vehicles

14. It appears to be uncontested that between them the parties have three motor vehicles registered in their names; two registered in the wife’s name and one in the husband’s name.  Unsurprisingly given the nature of the evidence and preparation of this matter by both parties for final hearing there is no agreement as to the value of each of the motor vehicles, nor is there a valuation to support each of the parties’ contended values. 

15. There is no evidence at all as to these motor vehicles save for their listing on the draft balance sheets and that contained in their Financial Statements. The car registered in the husband’s name is listed in his Financial Statement and on both parties’ contended balance sheets. The husband asserts it is valued at $500 and the wife asserts the value as being $2,000. There being no evidentiary foundation to ground either contended assertion, I can only simply take the admission against interest of the husband and find that the value is $500.

16. Only one of the two motor vehicles registered in the wife’s name is listed in her Financial Statement; being the Motor Vehicle 2. The wife asserts its value is $5,000 and the husband’s asserted value is $8,000. There being no evidentiary foundation to ground either contended assertion, I can only simply take the admission against interest of the wife and find that the value is $5,000.

17. The second motor vehicle listed on each party’s balance sheet is a Motor Vehicle 3 registration number … (“the Motor Vehicle 3’). The wife asserts it is valued at “NK” which I can only assume is short for “not known.” The husband asserts it is valued at $4,000. The Motor Vehicle 3 is not listed in the wife’s Financial Statement filed in April 2022, nor is it the subject of any evidence of the wife, either written or oral. The only evidence as to the Motor Vehicle 3 is contained in the husband’s affidavit at paragraph 144 as follows:-

    [Ms Dieu] purchased a $5000.00 [Motor Vehicle 3] for her mum after the separation between April 2017 and September 2021. [Ms Dieu] paid registration, green slip and insurance for the [Motor Vehicle 3].

18. There is no evidence before the court as to who has possession and use of the Motor Vehicle 3. Such evidence was solely within the purview of the wife’s knowledge. As the registered proprietor of the vehicle the wife had an obligation to assert a value and provide evidence to ground such assertion - she did not do so. The husband’s asserted value as contained within his balance sheet was not challenged by the wife during the course of the hearing and thus will be accepted.  

    Items 18 and 19: Jewellery

19. The wife’s balance sheet asserts that the husband has jewellery in his possession valued at $1,000. This may be a typographical error in circumstances where it lists that the husband values the jewellery in his possession at $30,000 but I as I have stated earlier in these reasons I am ignoring the values listed for the other party in each party’s individual balance sheet and thus will proceed only on the value of the jewellery asserted to be in the husband’s possession by the wife valued at $1,000. The husband does not list any jewellery as being in his possession at all in his balance sheet, nor in his Financial Statement. There is no evidence by either party as to any asserted jewellery in the husband’s possession. I am unable to make a finding in an evidentiary vacuum and will remove this item from the balance sheet.

20. The husband’s balance sheet asserts that the wife has jewellery in her possession valued at $30,000. The wife does not list any jewellery in her possession on her balance sheet. She does however list jewellery in her possession with an asserted value of $1,000 in her Financial Statement. In circumstances where it appears that the wife’s balance sheet may have meant to assert that the jewellery in her possession is valued at $1,000 as against the listing of the husband’s asserted value of $30,000 and there is no evidence by the wife that she disposed of the jewellery with a value of $1,000 set out in her Financial Statement, I am satisfied that I can safely make a finding that the wife has jewellery in her possession with a value of $1,000 as an admission against interest.

    Item 20: Coins and Old Bank Notes Collection

21. The wife’s balance sheet lists “coins and old bank notes collection” being in the husband’s possession with a value of “NK”.  The husband’s balance sheet asserts that the wife has possession of the said coins and old bank notes with a value of $25,000.

22. The wife deposes that she has repeatedly confirmed to the husband that she does not know the whereabouts of his coin collection, nor did she have knowledge of its location before or after she vacated the former matrimonial home.

23. It is uncontested that on 4 March 2021 the husband sent an email to the wife’s solicitor requesting that his collectable coins and bank notes be returned to him. On 11 March 2021 he received a response from the wife’s solicitors stating:

    ..regarding your coins collection, our client vehemently denies your vexatious claim against her.  She did not take your collection of bank notes and coins.  Our client left the property without preplanning due to the family physical violence against her and she has not return [sic] since the incident.  However, your sister advised our client that the property [D Street, Suburb C] was burgled.  This could explain the disappearance of your prize notes and coins collection.

24. The husband replied to such correspondence on 18 March 2021 stating that the wife and the parties’ children moved out of the former matrimonial home at D Street, Suburb C “in their own free will after the separation and changed all the door locks and leaved property….empty for several months.”  A further email was received by the husband from the wife’s solicitors on 19 April 2021 stating:

    Our client does not have your coin collection.  You have misplaced it and cannot blame our client for losing it.  She does not know where the collection is and has no reason to lie about your coin collection.

25. The husband’s oral evidence was that there is an email sent from the wife to the husband which evidences that she does have the coins and bank notes. Such email was not tendered throughout the course of the proceedings. When the husband was asked what orders he seeks with respect to the coins and bank notes collection in circumstances where both parties assert that the other has possession of them his response was “I will leave that up to your decision Judge”.

26. The husband asserts that the D Street, Suburb C property was broken into in 2018.  The husband was residing at this property at the time.   The husband does not provide any evidence as to what he asserts was stolen from the property at this time, but justifies his installation of security cameras on the property arising from such alleged break-in as set out later in these reasons.

27. Having regard to the state of the evidence I cannot make a finding as to the location of the coins and bank notes collection and this will not form part of the balance sheet.

    Add Backs

28. There are approximately twenty items on the draft balance sheet sought to be notionally added back to the property pool; of these eighteen are asserted by the husband and two are agreed.

29. The Full Court in AJO & GRO (2005) FLC 93-218; [2005] FamCA 195, identified three clear categories where it may be appropriate to notionally add back an item of expenditure:

    ·where the parties have expended money on legal fees;

    ·where there has been a premature distribution of matrimonial assets;

    ·where there has been a waste, reckless, negligent or wanton dissipation of assets as outlined by Baker J in Kowaliw and Kowaliw (1981) FLC 91-092.

30. In Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116, the majority of the Full Court stated the following regarding ‘add backs’ at 87,233, [79]:

    We observe that “notional property”, which is sometimes “added back” to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them”, and thus is not amenable to alteration under s79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage – and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s 79(4) and in particular s75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.

31. Notionally “adding back” items to the asset pool is a discretionary exercise which ought to be the exception rather than the rule: NHC & RCH (2004) FLC 93-204; [2004] FamCA 633. As stated by the Full Court in Trevi & Trevi [2018] FamCAFC 173 at [30]:

    …When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it. The second premise is its corollary: in cases that are not “exceptional” justice and equity can be achieved, not by adding back, but by the exercise of a different discretion — usually by taking up the same as a relevant s 75(2) factor. Indeed, it has been said that the latter is “a course which is, perhaps, technically more correct” than adding back to the list of existing interests in property.

    (Footnotes omitted)

32. Parties are entitled to reasonably conduct their affairs post separation: Gollings & Scott (2007) FLC 93-319; [2007] FamCA 397. Reasonably incurred expenditure usually does not come within the accepted categories of an “addback”. A party is not expected to be able to provide a precise audit as to every post separation expenditure: Edgehill & Edgehill [2007] FamCA 1102.

    Items 23 - 30: Addbacks asserted by the Husband in relation to the J Street, Suburb C Property

33. The parties have never resided in this property and it has for the most part been tenanted.  The husband deposes in his affidavit that he continued to pay the council and water rates, strata levies, land tax and home insurance post separation until 14 December 2021 and made monthly mortgage payments until 15 July 2019.  He deposes that the rental monies received for the property were directly deposited into the ANZ home loan account post separation (as had occurred during the course of the relationship) until 15 July 2019 and again from 6 June 2021 to 17 December 2021.

34. On 8 June 2021 the parties entered into orders by consent that they would each be responsible for and pay one half of the loan repayments and statutory rates with respect to the property. To this end the husband was to ensure that any rental income received from the property was applied to meet those expenses immediately upon receipt of such rental income, with such rental income thereafter equally reducing each party’s financial obligation under the order. The parties were to thereafter jointly meet any shortfall.

35. The husband deposes that he made monthly mortgage repayments of $724.01 into the ANZ accounts on 15 June 2021 to 15 October 2021 as per the court order but that the wife did not.

36. The husband’s position is that the wife should be responsible for meeting half the costs of the outgoings with respect to the J Street, Suburb C property. Thus the figures listed from items 22 to 28 represent half of the monies the husband asserts were paid by him.  Item 27 asserts “maintenance March – 2017 to December 2021 $10,642.46.”  The husband seeks that the wife be responsible for half of this in the sum of $5,321.23.

37. Item 28 on the balance sheet is the alleged mortgage repayments the husband says are owed by the wife for the period 14 January 2019 to 15 July 2019.  

38. Item 30 on the balance sheet is the sum the husband asserts the wife was obliged to pay in mortgage payments for the period 15 June 2021 to 15 November 2021 pursuant to the interim orders made by the court on 8 June 2021, being the sum of $4,344.06.

39. The wife deposes that the husband did not deposit the full rental monies received from the J Street, Suburb C property to the offset account and that

    [Mr Dieu] had skimmed $100 off the top of our joint weekly rental income from the [J Street, Suburb C] property and the money was deposited into his personal CBA account and I’m not sure for how long this type of activity has been going on for if at all prior to separation. 

40. The wife asserts that the J Street, Suburb C property had to be sold as the husband had withdrawn all monies from the joint ANZ offset account rendering it in debit by $1,179.54 and the bank was taking legal action against the parties for not repaying the home loan from 2019 and “Thanks to Covid the government did not allow the banks to enforce mortgagee sales.  We were able to privately sell this property to payout joint liabilities.” The husband himself concedes that he also ceased making mortgage payments on the property and that the property was able to be sold privately “before ANZ bank repossessed.” 

41. I am not satisfied that items 23-30 come within any of the categories determined that may be appropriate to notionally add back to the property pool as set out in AJO & GRO, nor am I satisfied that this is an exceptional circumstance where the justice and equity of the case requires it. 

    Items 31-33 and 35-36: Addbacks asserted by the Husband in relation to the B Street, Suburb C property

1. The husband asserts that the monies at items 31–33 and 35-36 of the balance sheet are monies that he has paid in respect of the B Street, Suburb C property. It is his position that the wife should reimburse the husband for half of the monies paid by him including council and water rates, insurances, mortgage payments for the period 14 January 2022 to 14 June 2022 and land tax for the period March 2017 to 2022.  There is no independent evidence to support the husband’s contentions in this regard.

2. Pursuant to the orders of 8 June 2021 the wife was entitled to obtain sole occupation of the B Street, Suburb C property and was to be responsible for all the rates and outgoings of the property save for the mortgage as and when she took occupation of same. The wife has not taken occupation of the B Street, Suburb C property. The husband was to be responsible for and pay the mortgage payments for the B Street, Suburb C property irrespective of whether the wife was residing there or not.

3. The husband is the sole registered proprietor of the B Street, Suburb C property. He continued to manage the rental of the B Street, Suburb C property post separation and obtained the benefit of such monies received.

4. I am not satisfied that the items asserted come within any of the categories determined that may be appropriate to notionally add back to the property pool as set out in AJO & GRO, nor am I satisfied that this is an exceptional circumstance where the justice and equity of the case requires it. 

   Items 34 and 37 – Maintenance and Renovation to the B Street, Suburb C property and Loss of rent for the B Street, Suburb C property

5. The husband deposes that in July 2019 he hired a project manager “Mr W” to renovate the B Street, Suburb C property.  Mr W undertook the following works:-

   ·removed all the rubbish around and underneath the house;

   ·rewired the electrical for the entire house;

   ·replaced the hot water system;

   ·installed the new bathroom with a toilet and shower with lighting at the back of the house;

   ·removed and replaced the hot and cold water taps in the kitchen and bathroom;.

   ·Inserted partitioning into the property to convert it from a two bedroom to a six bedroom property and fitted all bedrooms with a bed wardrobe and a mini fridge; and

   ·furnished the kitchen, living room and laundry with a TV, coffee table, fridge and freezer and washing machine.

6. The husband deposes that:

   Unfortunately, I never saw nor heard nor I can get in touch with [Mr W] in October 2019.  I paid [Mr W] up to $50,000 before he disappeared.

7. To fund such renovations the husband refinanced the loan secured by way of mortgage over the B Street, Suburb C property, thus increasing the value of the liabilities on the balance sheet.

8. The husband seeks half of the monies that he asserts were paid by him to be notionally added back to the property pool. He further deposes that, as a result of the wife and the parties’ eldest child not moving back into the B Street, Suburb C property pursuant to the interim orders made by consent the property has been vacant and “I lost $150 per week of rent from 6th June 2021 until now.” 

9. It was conceded by the husband during the course of cross examination that the wife’s assertion contained within her affidavit that he has not been able to produce any receipts to support his contention as to monies expended by him on any renovations to the B Street, Suburb C property are correct.  The single expert in this matter inspected the property in August 2021 and prepared a report on 26 August 2021.  The single expert clearly deposes in his Affidavit attaching such report that it is his opinion that the property is not habitable for the reasons set out in his letter to the wife’s solicitors dated 6 September 2021 which is attached to his Affidavit.  Such correspondence states:

   Based on the building inspection report, in my opinion the resident [sic] is not habitable due to:

   1.Unsafe electrical wiring,

   2.Unsafe plumbing,

   3.Leaking roof,

   4.Damaged windows,

   5.Presence of mould within the property,

   6.Healing paint, suspected o [sic] be lead paint,

   7.Presence of broken and loose asbestos, and

   8.General dilapidated nature of the property.

   In my opinion, no funds have been spent in the last 10 years for the general maintenance and upkeep of the property.

10. The single expert has attached photographs of the property showing photos of the electrical mains with a tag attached to it stating:

    WARNING Supply to this service has been discontinued for safety reasons DO NOT ATTEMPT TO RECONNECT SUPPLY.  Supply can only be reconnected by an authorised agent of [Company X].  Removal of this seal will result in legal action taken.

11. This evidence was not challenged by the husband and I accept the single expert’s evidence.  I am unable to find that the husband has expended funds to renovate or upkeep the property.  I accept and find that the property is uninhabitable in its current state.  In those circumstances the wife’s refusal to move back into the property was reasonable. In any event such asserted costs have increased the parties’ liabilities. I refuse to notionally add back the sums asserted by the husband spent on renovations to the property.  I further refuse to notionally add back any sums the husband asserts he lost by way of rental income in circumstances where the property was not habitable in any event, nor is there any evidence that there was anyone prepared to rent the property at the asserted weekly sum for this period of time.

    Items 38 to 40 – Addbacks asserted by the Husband in relation to the D Street, Suburb C property

12. The parties moved into this property in 2012.  The wife and children moved out of the property upon separation and moved to live with the wife’s parents.  The husband deposes that the property was then vacant for several months.  The husband again resumed occupation of the property in approximately July 2017 and continues to reside in this property.

13. The husband asserts that the monies at items 38-40 of the balance sheet are monies that he had paid in respect of outgoings for the D Street, Suburb C property and the wife should reimburse him for half of those outgoings from April 2017 (being the date of separation). One of the expenses comprises an expense incurred for a time postdating the final hearing, being “insurance from 22 September 2017 to 22 September 2023” in the sum of $8,224.33 thus the husband asserts one half of that should be added onto the balance sheet in the sum of $4,425. 

14. The following exchange took place during the course of submissions in this regard.

    HER HONOUR: There were some Orders made in 2021 by consent that you have sole occupation of [D Street, Suburb C] and you be responsible for all the rates and outgoings for that property, so why would I now make the wife responsible for that?

    HUSBAND: 8 June 2021… So if you look - I have only included from 2017 to 2021.

    HER HONOUR: So why are you saying I should make an order that the wife be responsible for half of those outgoings?

    HUSBAND: From 2017 to 2021 I propose to go 50/50 with her.

    HER HONOUR: I understand that, but you need to tell me why I would do that?

    HUSBAND: Well because that is not usage – it’s fixed whether you live there or not you still have to pay for it. If it’s water usage or something that I use, then yes, I’m willing to pay for that. But this is an annual or quarterly or thing that whether you live there or not you still have to pay for it.

15. In circumstances where the husband had the benefit of occupation of this property I am not satisfied that the wife should be responsible for any ongoing expenses incurred with respect to the property.  In any event I am not satisfied that the items asserted come within any of the categories that may be appropriate to notionally add back to the property pool as set out in AJO & GRO, nor am I satisfied that this is an exceptional circumstance where the justice and equity of the case requires it. 

    Item 41 – Maintenance from September 2017 - July 2022

16. The monies expended include an assertion by the husband that from September 2017 to July 2022 he expended the sum of $8,850 in “maintenance” on the property which included the installation of five surveillance cameras after the house was apparently burgled in 2018.  The husband deposes in his affidavit that the D Street, Suburb C property was “broken in during the day time while was at work for the very first time in 2018.”  The husband does not provide any corroborating evidence to support his assertion that five surveillance cameras were installed in the property nor is there any evidence that he obtained the wife’s consent prior to installing any such cameras for either their installation or for any responsibility that the wife was to incur towards the costs of same.

17. Whilst the husband was not challenged as to his assertions as to the installation of surveillance cameras, I am not satisfied on the evidence before me that the husband has met the evidentiary foundation for me to make a finding that the sum of $8,850 was expended on “maintenance.”  There is no particularisation as to how much the husband asserts the video cameras cost and therefore as to how the sum asserted is comprised.  In any event I am not satisfied that even if I were to make such finding that this sum, having regard to the authorities as set out above, should be notionally added back to the property pool.

    Liabilities

    Item 45: ANZ One Offset Account #...32

18. There is no evidence by the wife in her affidavit with respect to the current amount owing on the ANZ one offset account. It was the husband’s evidence that this account should be closed and any liability discharged at the same time that the loan secured by way of mortgage over the J Street, Suburb C property was discharged. 

19. Again it is remarkable that there is no evidence before the court to support either party’s assertion – evidence again very easy to obtain. I will again act cautiously and accept the lower figure ascribed to this item. To ensure justice and equity I will make an order that this liability be discharged using the funds held jointly on behalf of the parties from the sale of the J Street, Suburb C property prior to the disbursal of those funds to the parties in accordance with the adjustment each is to receive.

    Items 46-47:  Capital Gains Tax Liability

20. Tendered into evidence and marked as Exhibit W1 is the wife’s Notice of Assessment for the year ending 30 June 2022. Such assessment evidences a liability outstanding to the Australian Taxation Office in the sum of $20,477.10 payable by no later than 21 March 2023.

21. There is no evidence before the court as to the tax amount payable by the wife arising from any capital gains from the sale of the J Street, Suburb C property.  When this issue was raised with the wife it was submitted by the wife that the court would take “judicial notice” of the following matters asserted solely during the course of submissions:-

    ·that the wife has income of $78,000 without any capital gains;

    ·that judicial notice could be taken that the wife would fall within the tax bracket of 32.5 cents and the standard rate;

    ·that the capital gains tax event of $56,000 then increases the wife’s assessable income to within the next tax bracket where it is “37 cents to the dollar”; and

    ·that the court would then undertake the calculations submitted by the wife from the bar table and find that there arose to the wife taxation liability of $18,830.

22. I cannot take judicial notice of the taxation rates and calculations submitted by the wife.  I cannot in those circumstances make any finding as to the capital gains tax that is to be payable by the wife as a result of the sale of the J Street, Suburb C property.

23. The husband’s capital gains tax liability did not appear on his balance sheet. The husband submitted from the bar table that a capital gains tax liability of $10,000 should appear on the balance sheet in respect of any capital gains tax owing from the sale of the J Street, Suburb C property.  Again there is no evidence to support this asserted figure and it appears that this is simply an estimation by the husband. Tendered into evidence by the husband and marked as Exhibit H3 is a copy of the husband’s Notice of Assessment for the financial year ending 30 June 2022. I cannot make any finding from this evidence as to the amount payable in tax by the husband for capital gain arising from the sale of the J Street, Suburb C property. 

24. Each of the parties will simply be required to be responsible for such taxation consequences in circumstances where they did not avail themselves of the opportunity of placing the appropriate evidence before the court.

    Items 48 - 58: Legal fees and Disbursements paid by the Husband

25. The husband presses that his legal fees and disbursements paid to date appear on the balance sheet. It was his submission that he is “not asking the wife to pay it” but rather appears to submit that these sums should appear on the balance sheet as they are expenses paid by him in the course of these proceedings.

26. The wife does not list on her balance sheet the legal fees paid by her to date in the proceedings.

27. In circumstances where there is no evidence as to how any such fees were paid by the parties I am satisfied that neither parties’ fees should be notionally added back to the property pool. I note that if such paid fees were notionally added to the balance sheet, they would be listed as notional assets in any event.

    Item 59: Child Support paid by the Husband from January 2018 to December 2022.

28. Similarly to the husband’s position with respect to his legal fees, the husband submits that the total amount of child support paid up until both children turned the age of 18 should appear on the balance sheet to evidence monies he has had to pay.

29. The husband submitted that he included this figure on the balance sheet as at the commencement of the hearing the wife sought to include payments relating to the children’s orthodontist fees. In circumstances where the wife was no longer pressing that those items appear on the balance sheet it was still the husband’s position that his child support paid to date should appear on the balance sheet as it is an “expense he has had to pay”.

30. The said sum is not a current liability. The item is rejected and will be removed from the balance sheet.

31. Accordingly, rounding the figures to the nearest dollar I find that the property pool consists of assets and liabilities as follows:-

Ownership		Description	Value Found
ASSETS
H	B Street, Suburb C	$1,475,000
J	D Street, Suburb C	$1,575,000
W	Bank O Account #...25	$5,008
W	ANZ Account #...98	$2,316
H	CBA Account #...72	nil
H	CBA Account #...32	$518
H	Bank P Account #...51	$1,069
H	Bank G Everyday Account #...88	$400,000
H	Bank G Flexible Account #...68	$350,000
J	Proceeds of sale held in trust account of Real Estate Agent H for the parties in respect of sale of J Street, Suburb C	$68,742
H	Motor Vehicle 1	$500
W	Motor Vehicle 2	$5,000
W	Motor Vehicle 3	$4,000
W	Jewellery	$1,000
Total			$3,888,153
ADDBACKS
Ownership		Description	Value Found
W	Monies withdrawn from the Joint ANZ One Account in September 2018	$36,800
H	Redraw from the Joint ANZ One Mortgagee account in September 2018	$80,000
Total			$116,800
SUPERANNUATION
Ownership		Description	Value
W	Super Fund 1	$195,236
H	Super Fund 2	$252,563
Total			$447,799
LIABILITIES
Ownership		Description	Value
H	[Bank G] Mortgage Account #...68	$450,000
J	ANZ One Offset Account #...32	$1,145
Total			$451,145
TOTAL PROPERY POOL (including superannuation)			$4,001,607

1. I find that the value of the parties’ non-superannuation property is $3,555,808.

2. I find that the value of the superannuation property is $447,799.

3. I find that the total value of the non-superannuation property and superannuation property of the parties is $4,001,607.

4. The total value at law of property held by the husband prior to any adjusting order is $2,930,949.

5. The total value at law of property held by the wife accepting the wife’s values prior to any adjusting order is $1,070,658.

   WHETHER AN ORDER ALTERING PROPERTY INTERESTS SHOULD BE MADE

6. I should only make orders pursuant to s 79 of the Act if I am first satisfied that it is just and equitable to do so. It must not be assumed that the parties’ rights or interests should be different to that which already exists: Stanford & Stanford (2012) FLC 93-518; [2012] HCA 52 (“Stanford”). 

7. I find that the requirements identified in Stanford are satisfied in this matter having regard to:

   ·The parties in this matter, having married and mixed their finances as a family, have now separated. It is therefore not possible for them to continue to mutually enjoy the accumulated assets.

   ·Both parties invoke s 79 of the Act seeking orders for property settlement.

   ·The current legal interest of the parties needing to be changed or adjusted when consideration is given to the contribution and other factors identified below.

8. It is therefore just and equitable in all the circumstances to make orders pursuant to s 79 of the Act adjusting the financial interest of the parties.

   THE ASSESSMENT OF CONTRIBUTIONS

9. It is uncontested that the B Street, Suburb C property was purchased in the husband’s sole name prior to the parties living together for a purchase price of $190,000. The husband contributed $89,500 to the acquisition of this property. This property was subsequently tenanted and the rental monies received applied towards payment of the mortgage. The husband is the sole legal registered proprietor of this property and has therefore had sole responsibility for managing the property post separation. The property is currently in an uninhabitable state.

10. In 1998 the parties commenced residing with the wife’s parents in their property at Suburb Y. The wife deposes that the decision to move into her parent’s house was “a good way to save money quicker to enable us to buy another property together sooner.” The wife deposes that the parties’ paid the sum of $400 per month to the wife’s parents to cover costs such as food and board. The husband deposes that he paid $150 per week in rent to the wife’s parents including water and electricity and that in addition he paid an extra $50 per week to the wife’s parents for them to take care of the parties’ eldest child when the wife returned to work following her maternity leave. The husband further asserts that the parties paid for the “family weekly grocery shopping” and “in return” the wife’s mother “cooked lunch and dinner for us but only from Monday to Thursday and Friday lunch but no Friday night dinner.” There is no evidence to ground either party’s assertion. Neither party was challenged as to their evidence in this regard. I cannot make a finding other than that for a period of time the parties resided with the wife’s parents and paid monies to them of between $100 - $200 per week.

11. The wife deposes that at the commencement of the parties’ marriage she had “significant savings” arising from working full time and living at home with her parents. Whilst this assertion was not the subject of challenge by the husband, the savings asserted by the wife are not particularised nor is there any evidence to ground this assertion and I cannot make such a finding. 

12. Both parties were engaged in paid employment during the course of the relationship on a full time basis, save for periods of time when the wife took six months maternity leave subsequent to the birth of the parties’ first child and three months maternity leave subsequent to the birth of the parties’ youngest child.

1. The husband deposes that in 1999 he purchased a car for the wife. He provides no evidence as to the source of funds for the purchase of the car or the purchase price. He was not challenged on this evidence. I accept that a car was purchased for the wife in 1999 but cannot make a finding as to the source of funds for its acquisition.

2. The D Street, Suburb C property was purchased in 1999 for the sum of $250,000. The wife deposes that “I made equal contributions towards the purchase of this property and for this reason, Mr Dieu agreed for me to hold the title as tenants in common in equal shares.” The husband agrees that the wife “paid 50% of the property only and I paid the other 50% plus all other fees and charges associate with purchasing property.” Again there is no documentary evidence to support either party’s contentions and I am unable to make a finding in this regard save that each of the parties made significant, if not equal, direct financial contributions to the acquisition costs of the D Street, Suburb C property. 

3. The J Street, Suburb C property was purchased in joint names in 2010. It is uncontested that the husband arranged the sourcing of lenders and solicitors in relation to the purchase. This property was tenanted during the course of the relationship.

4. The wife deposes that throughout the marriage the parties did not hold any joint bank accounts as the husband preferred to keep their finances separate and he did not want the wife to have access to his personal bank accounts. The husband asserts that the only joint accounts operated throughout the marriage were ANZ accounts opened in relation to the D Street, Suburb C property. I accept this evidence.

5. The wife’s written evidence is that throughout the marriage the husband would transfer the wife’s entire wage into various bank accounts without consulting the wife. These bank accounts included the ANZ offset account but also his personal accounts. The wife thus asserts that part of the B Street, Suburb C mortgage was paid from her wage over the course of the 28 year relationship. I accept this evidence.

6. The wife deposes that the husband paid the parties’ bills from combined income. This evidence was not challenged and it is accepted.

7. The wife asserts that during the relationship in addition to working full time she cooked, cleaned and cared for the children. The husband assisted with the laundry, attended to the physical payment of the household bills from the parties’ combined income and undertook the shopping for the household. The husband also assisted the children with their homework and drove the children to tutoring and other extra-curricular activities.

8. The husband deposes in great detail his contributions by way of caring for the children, including that he “always”:

   ·washed, hung, folded and sorted the family’s washing;

   ·undertook family’s grocery shopping and lawn maintenance;

   ·cleaned the house;

   ·took out the garbage;

   ·maintained the two motor vehicles;

   ·bathed and dressed the children every day after work and put them to bed;

   ·taught the children how to read, write and count numbers; and

   ·took the children to their extracurricular activities including swimming and tennis lessons.

9. The husband concedes that the wife on “almost all occasions cook dinners, wash dishes and made lunch for me.”

10. I am satisfied that each of the parties made significant non-financial contributions to the care of the children and the care, maintenance and upkeep of the home to their best of their ability during the course of the relationship.

11. The wife alleges that her contributions were made more difficult during cohabitation as a result of the husband’s conduct. The wife deposes that over the parties’ 28 year relationship there were numerous incidents of domestic violence perpetrated against herself and Mr N.

12. The principles relevant to an assessment of contributions in the context of allegations of family violence were set out in Kennon v Kennon (1997) FLC 92-757 (“Kennon”) where, at 84,294 the Full Court stated:

    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.

13. Counsel for the wife quite properly conceded during the course of final submissions that there is no evidence as to how the asserted conduct of the husband made the wife’s contributions more onerous. I cannot simply infer such evidence and accordingly factual findings as to whether such conduct was occasioned by the husband as alleged by the wife is not necessary.  The wife’s contention that an adjustment to the contribution finding ought to be made in her favour arising from the alleged conduct of the husband must fail. 

14. The children were aged 17 years and 13 years at the time of separation. The children remained living with the wife and did not spend any time with the husband post separation and thus the wife was solely responsible as between herself and the husband for attending to all of the children’s needs post separation.

15. The husband did not commence paying child support for Ms M until February 2018. It is uncontested that the wife paid for all living expenses, orthodontic, school associated costs, tuition fees and extracurricular activities for herself and the children post separation.

16. The husband deposes that subsequent to separation:-

    ·He continued to pay Council rates, water rates, home insurance and land tax after separation until 6 June 2021 for the B Street, Suburb C property;

    ·he continued to pay the Council rates, water rates and home insurance post separation for the D Street, Suburb C property;

    ·he continued to pay the Council rates, water rates, Strata Levy, land tax and home insurance post separation and to 14 December 2021 with respect to the J Street, Suburb C property; and

    ·he made the monthly mortgage repayment post separation until 15 July 2019 for the J Street, Suburb C property.

17. I am satisfied that the husband did financially contribute to the ongoing expenses of the properties post separation.

18. The husband deposes that he expended a sum totalling approximately $110,000 on undertaking renovations to the three properties post separation. There is no independent evidence to support such assertion and I am not satisfied that I can safely make such a finding. In any event, even if such sums were expended there is no evidence to support a finding that such expense was met by the husband’s income rather than by increasing the parties’ liabilities.

19. It was submitted on behalf of the wife that I would make a contribution finding of 50% to each of the parties and then as a result of the wife’s Kennon claim a further 10% adjustment to the contribution finding should be made.  This submission fails to recognise that a contribution assessment and finding is a holistic process and would include any finding as to a party’s contribution being made more onerous by the conduct of the other party.  The husband’s submissions focussed on the items of property each party was to retain if he was successful in the relief sought by him.

20. Whilst a global approach to the assessment of contributions is generally preferred this is a discretionary determination and particular circumstances may dictate that contributions to a particular asset or group of assets should be assessed separately: Norbis v Norbis (1986) FLC 91-712 (“Norbis”).

21. The Full Court in Horrigan & Horrigan [2020] FamCAFC 25 reinforced the holistic approach espoused in Fields & Smith (2015) FLC 93-638 and stated that the proper approach to the assessment of contributions is:

    [35]      …established that an assessment of contributions is not a mathematical exercise, but rather involves the identification and assessment of all of the parties’ respective contributions, in a holistic way across the course of the relationship and in the post separation period to the point of assessment…

22. Neither party made any submissions as to the approach to be adopted save that the husband deposes that the B Street, Suburb C property was purchased by him prior to the parties commencing to live together and the wife has not made any financial or non-financial contributions either towards its purchase price or mortgage repayment and:

    Therefore, it is an item under my name solely own without entering the item into the marriage.  It remains separate from the relationship and that I retain 100% ownership of the property without any complications.

23. The possible argument that the husband is seeking to have a two pool approach does not stand in circumstances where at the conclusion of the hearing the husband asserted that the B Street, Suburb C property should be transferred to the wife.

24. Having regard to the length of the parties’ relationship and the contributions made by each of them I am satisfied it is appropriate to apply a global approach to the assessment of contributions to a single pool of property of both superannuation and non-superannuation property.

25. Whilst mindful that the husband acquired the B Street, Suburb C property prior to the parties commencing to live together and this property forms a significant part of the current property pool, I am also mindful of the higher post separation parenting contributions of the wife.  Adopting the same holistic approach as that adopted by the parties and doing the best I can having regard to the limited evidence, I assess the parties’ contributions to the property pool as equal.

26. By way of cross check in dollar terms this equates to each receiving property to the value of $2,000,803.50

    RELEVANT S 79(4)(D) – (G) MATTERS

27. Counsel for the wife submitted that no adjustment would be made to the contribution findings above. The husband did not make any submissions in this regard.

28. The proposed orders do not have any effect upon any capacity of either of the parties.

29. The wife is aged 51 and the husband 52 years of age.  There is no evidence that either of the parties have health issues.

30. The husband deposes in his affidavit that his employment is not stable but does not give evidence to ground this assertion.  The husband gave evidence for the first time during the course of cross examination that he is no longer engaged in paid employment.  In circumstances where there is no independent evidence to support such an assertion and the wife was not provided with the opportunity to test this evidence in a meaningful manner, I cannot be satisfied and find that the husband is currently unemployed.  Even if I were to so find, I am not satisfied that the husband does not have capacity to engage in further full-time employment in the future.

31. Neither party is eligible for a pension.

32. In circumstances where both parties have continued for the most part to work on a full-time basis I not satisfied that the duration of the marriage has affected the earning capacity of either of the parties.

33. It is uncontested that the $36,800 withdrawn by the wife from the Joint ANZ account is to be notionally added back to the asset pool and thus is not a consideration pursuant to s75(2)(o).

34. It is uncontested that the $80,000 withdrawn by the husband from the Joint ANZ One Mortgage Account is to be notionally added back to the asset pool and thus is not a consideration pursuant to s75(2)(o).

35. The husband has had the benefit of the sum of $13,000 according to his oral evidence from monies received from his last place of employment. This was not disclosed to the wife as the husband “did not think it was necessary because I no longer pay child support.” According to the husband the sum was for his unpaid annual leave (7 weeks) and pro rata long service leave arising from his employment from July 2015 to date.  There is no evidence as to how and if this money has been disbursed by the husband or whether it forms part of the draft balance sheet. Such a question was not asked by the wife.

36. The wife deposes that the husband has had control of the three properties and has benefitted financially from them by way of receiving rental monies post separation in circumstances where he did not contribute toward the mortgage repayments from February 2019 onward.[2] The husband concedes that he was receiving rental monies for both the J Street, Suburb C and D Street, Suburb C properties. I accept that the husband did not at any time provide a full and proper accounting to the wife of such rental monies received and the expenses paid by him.

    [2] Wife Affidavit, paragraph 69.

37. I accept that the parties had a liability of approximately $530,000 when the relationship ended. The parties dispute whether such loans were secured against only the J Street, Suburb C property or both the J Street, Suburb C and D Street, Suburb C property.  The wife asserts that post separation the mortgage increased to $641,078. She asserts that by the settlement of the sale of the J Street, Suburb C property the joint liability of the parties increased by $221,078.82.[3]

    [3] Wife’s Affidavit paragraph 74.

38. The wife submits that the following further factual findings can be made on the evidence:-

    ·That the husband withdrew between $100,000 - $112,000 from the ANZ account post separation; and

    ·that the husband withdrew sums totalling $8,000 from her Bank O account on 21 March 2017.

39. In evidence is the ANZ Residential Home Loan statements in the husband’s sole name for the periods 14 March 2018 to 14 September 2018, 14 September 2018 to 14 March 2019 and 12 March 2021 to 14 September 2021. These statements record a sum of $10,000 being drawn on 18 September 2018, $10,000 on 19 September 2018 and $9,000 on 20 September 2019. These withdrawals total only $59,000.

40. None of these transactions were put to the husband in cross examination.  It was conceded that the wife did not have any direct evidence that it was the husband that withdrew these sums and submitted that “given the evidence of the control of the finances that was conceded by the husband throughout the relationship and thereafter I would invite Your Honour to make that inference.” 

41. It was the husband’s evidence that the mortgage increased as the rent was never enough to cover the mortgage and as the wife was not contributing to the payments the husband stopped payments “in December.”

42. I am not satisfied that the wife has discharged her evidentiary onus to establish that the husband withdrew the asserted sum of between $100,000 - $112,000. I am not satisfied that she has discharged her evidentiary onus to establish that it was the husband that withdrew a sum totalling $59,000 in circumstances where it was merely asserted from the bar table that such specific withdrawals were not made by the wife. They were not put to the husband. It would be difficult in any event to ascertain the effect of such withdrawals as the husband was not asked how such money was applied. It may be that if the husband did withdraw such monies, it is reflected on the balance sheet.

43. I am unable to make a finding on the limited evidence before me as to:

    ·The precise sum received by the husband post-separation in rental monies;

    ·When the husband ceased paying the mortgage; and

    ·The precise figure paid by the husband post-separation toward the mortgage.

44. In circumstances where the wife clearly deposes as to her assertion that the husband withdrew the sum of $8,000 from her savings account on 21 March 2017 and this was not challenged by the husband I accept and find that the husband has had the benefit of these monies.

45. The husband has had the benefit of occupation of the D Street, Suburb C property and continues to do so.

46. Holistically and weighing up all of the above considerations including the husband’s lack of disclosure I am satisfied that an adjustment should be made to the wife of 2.5% or $100,040.  

    ORDERS TO BE MADE

47. Only during the course of final submissions did the husband advise the court and the wife that he now seeks to retain the D Street, Suburb C property and for the wife to retain the B Street, Suburb C property.

48. The husband submitted from the bar table that he no longer wants to retain the B Street, Suburb C property as it will have capital gains tax implications in circumstances where it is now uninhabitable and will have to be sold. He further submitted that in circumstances where the wife says that she cannot live in it, the wife would have to sell it in any event and therefore it is better if the husband transfers the property to the wife to sell so there will be no capital gains tax.

49. I will not make orders in this regard as sought by the husband as:-

    ·The hearing proceeded on the basis of the husband wanting to retain the B Street, Suburb C property and transfer his interest in the D Street, Suburb C property to the wife. The wife was not afforded the opportunity to present evidence to oppose the relief the husband only sought subsequent to the hearing of all the evidence.

    ·The husband is currently the sole registered proprietor of the B Street, Suburb C property.

    ·The husband has had sole use of the B Street, Suburb C post separation. It is now in an uninhabitable state.

    ·There is no evidence as to any party proposing to sell the B Street, Suburb C property. Neither party seeks such an order. There is no evidence that if the property was sold, what the capital gains tax implications would be.

50. Orders will therefore be made that the husband retain the B Street, Suburb C property and his interest in the D Street, Suburb C property be transferred to the wife. The husband will be responsible for removing the mortgages that are still secured on the D Street, Suburb C property and the caveat registered against the title by his former solicitors. This is a liability that will be borne solely by the husband as it is unpaid legal fees.

51. The wife will be required to remove the caveat lodged against title on the B Street, Suburb C property.

52. As a finding could not be made as to the value of the net proceeds of sale from the J Street, Suburb C property nor the liability owing to the ANZ Bank, an order will be made that the funds are to be disbursed as to 52.5% to wife and 47.5% to husband after payment of the liability to the ANZ Bank.

    JUST AND EQUITABLE

53. I have found that the wife receives 52.5% of the net property. This equates to property to the value of $2,100,844.

54. The wife will therefore receive the following:

DESCRIPTION	VALUE
ASSETS
The D Street, Suburb C Property	$1,575,000
Bank O account ending #...25	$5,008
ANZ account ending #...98	$2,316
52.5% of Proceeds of sale of J Street, Suburb C Property	$36,090
Motor Vehicle 2	$5,000
Motor Vehicle 3	$4,000
Jewellery	$1,000
Monies withdrawn from the Joint ANZ One Account in September 2018	$36,800
Payment from husband	$240,966
Superannuation	$195,236
TOTAL ASSETS	$2,101,416
LIABILITIES
ANZ One Offset account	$573
TOTAL LIABILITIES	$573
TOTAL NET ASSETS	$2,100,843

1. Thus the husband will be ordered to pay the wife the sum of $240,966.

2. The husband will receive the following:

Description	Value
ASSETS
(a)	The B Street, Suburb C Property	$1,475,000
(b)	Redraw from the Joint ANZ One Mortgagee account in September 2018	$80,000
(c)	CBA Account #...32	$518
(d)	Bank P Account #...51	$1,069
(e)	Bank G Everyday #...88	$400,000
(f)	Bank G Everyday #...68	$350,000
(g)	Motor Vehicle 1	$500
(h)	47.5% of Proceeds of sale of J Street, Suburb C Property	$32,652
(i)	Superannuation	$252,563
TOTAL ASSETS:	$2,592,302
LIABILITIES
(j)	ANZ One Offset Account #...32	$572
(k)	Bank G Mortgage Account #...68	$450,000
(l)	Payment to wife	$240,966
TOTAL LIABILITIES	$691,538
TOTAL NET ASSETS	$1,900,764

1. Standing back and looking at the distribution of assets on an overall basis, I find that this distribution achieves a just and equitable alteration of the property interests of the parties.

2. Orders will be made accordingly.

I certify that the preceding one hundred and ninety six (196) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch.

Associate:

Dated: 17 May 2023