DOBNEY and DOBNEY
[2019] FCWA 271
•30 DECEMBER 2019
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: DOBNEY and DOBNEY [2019] FCWA 271
CORAM: DUNCANSON J
HEARD: 14, 15 AUGUST and 6 SEPTEMBER 2019
DELIVERED : 30 DECEMBER 2019
FILE NO/S: PTW 3648 of 2017
BETWEEN: MS DOBNEY
Applicant
AND
MR DOBNEY
Respondent
Catchwords:
PROPERTY - where it is just and equitable to make a property settlement order - where the wife received an inheritance after separation - where a two pool approach to the assessment of contributions was adopted - consideration of s 75(2) factors - where both parties alleged financial misconduct on the part of the other and consequential waste
Legislation:
Family Law Act 1975 (Cth) s 75, s 79
Category: Reportable
Representation:
Counsel:
| Applicant | : | Mr M Berry SC |
| Respondent | : | Self-Represented Litigant |
Solicitors:
| Applicant | : | Perth Family Lawyers |
| Respondent | : | Self-Represented Litigant |
Case(s) referred to in decision(s):
Chorn and Hopkins (2004) FLC 93-204
De Angelis & De Angelis [1999] FamCA 1609
Holland & Holland (2017) FLC 93-793
Keating & Keating [2019] FamCAFC 46
Kennon v Kennon (1997) FLC 92-757
Khademollah & Khademollah (2000) FLC 93-050
Kowaliw and Kowaliw (1981) FLC 91-092
Steinbrenner v Steinbrenner [2008] FamCAFC 193
Trevi and Trevi [2018] FamCAFC 173
Zubic & Zubic and Anor [2019] FamCAFC 168
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dobney and Dobney has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act (Cth).
1[Ms Dobney], the wife and [Mr Dobney], the husband are unable to agree about the division of their property following the breakdown of their long marriage.
2The wife seeks a percentage division of the net assets and superannuation 70% to her and 30% to the husband. The wife's position is that her contributions were greater than those of the husband both during the relationship and after separation.
3The wife says the Court should take into account that the husband's conduct had a very significant economic impact upon the parties and also the likelihood that the husband will receive an inheritance upon the passing of his mother.
4The husband seeks an equal division of the parties' property. He disputes the wife's assertion that her contributions were greater than his and says they were equal. The husband asserts that the wife "usurped control of the parties' business" after making false allegations against him regarding his conduct. He says the wife's conduct should be taken into account along with her mismanagement of the business after he was excluded from it.
THE ORDERS SOUGHT
The orders sought by the wife
5The orders sought by the wife are contained in a minute of final orders filed 13 August 2019. She seeks an order that the proceeds of the joint account, which holds trust funds be distributed to her. She will transfer her interest in [Business A], the [A & B Dobney Family Trust] ("the trust") and the business, [Business B], to the husband.
6The wife proposes to pay the liabilities of the trust being the anticipated costs of settlement of trust properties and an outstanding account to a plumber/electrician but otherwise seeks to be indemnified from all claims in respect of the parties' entities.
7The wife proposes to transfer shares and her interest in a GST refund to the husband and she seeks the return of various items from the family home.
8The wife seeks a splitting order in respect of the husband's superannuation, such that she receives $27,000. Otherwise she proposes the parties retain the assets, liabilities and superannuation benefits in their respective names.
The orders sought by the husband
9The orders sought by the husband are contained in a minute of proposed final orders filed 2 July 2019. The husband relevantly proposes that after payment of the liabilities of the business, Business B, the funds at credit of the [joint bank account] be divided in such proportions so that the wife receives 50% of the net assets of the parties overall.
10The husband proposes that the wife transfer her interest in the parties' entities to him and he will release her from any liabilities arising therefrom.
11The husband seeks the return of [the family dog] from the wife and paperwork and other documents and equipment in relation to the entities held by her. The husband otherwise proposes that each party retain the assets, liabilities and superannuation benefits in their respective names.
DOCUMENTS RELIED ON
12The wife relied on her affidavits filed 28 August 2018, 1 July 2019 (Annexure A only), 29 July 2019 and financial statements filed 27 August 2018 and 12 August 2019. The wife also relied on the affidavits of [Dr Z] filed 2 October 2018 and [Ms T] filed 27 August 2018.
13The husband relied on his affidavit filed 10 July 2019 and his financial statements filed 20 December 2017 and 27 June 2019.
BACKGROUND AND SHORT HISTORY
14The wife was born [in] 1967. She is 52 years of age. The husband was born [in] 1969. He is 50 years of age. The parties commenced a relationship in 1988. They married [in] 1992. The parties separated finally [in] 2016.
15The parties have three children, [Child A] born [in] 1996, [Child B] born [in] 1998 and [Child C] born [in] 2001.
16The parties began living together at [Property A], which is the residence situated above the commercial premises from which the husband's parents' Business B was operated.
17In 1992 the parties purchased that business from the husband's parents. The husband's parents retained ownership of the business premises and the husband and the wife leased both the commercial premises and the residential dwelling from them by way of verbal agreement.
18The parties established the A & B Dobney Family Trust.
19Between 1994 and 2013 the parties purchased the following properties held in the trust:
•[Property B];
•[Property C];
•[Property D]; and
•[Property E].
20In 1998 ownership of the commercial and residential premises at Property A was transferred from the husband's parents to their company [XYZ Pty Ltd].
21In about 2013 the wife's mother moved into the parties' rental property at Property B.
22Upon the parties' separation [in] 2016, they continued to reside under one roof.
23In 2016 the wife left the family home with the children and commenced living in a rental property in [Suburb V]. Both parties operated the [front of business].
24In about 2016 the wife's father transferred to the wife and each of her siblings a quarter share in a block, [Property F].
25In 2016, the husband assaulted the wife. The husband was charged with aggravated assault. His bail conditions did not prevent him from entering the business premises.
26The wife obtained an interim Violence Restraining Order ("VRO") against the husband [in late] 2016. The conditions of the VRO prevented the husband from entering the business premises.
27The parties agreed the wife would run the front of business. In November 2016 the wife was admitted to hospital. By agreement the husband reopened the front of business and operated it in the wife's absence. The wife continued to be responsible for the accounts of the business.
28In 2017 the husband was removed from the front of business by the police. The wife then operated the front of business.
29In 2017 the police arrested the husband from his home for allegedly breaching the interim VRO.
30In 2017 the wife received a notice to quit the premises from XYZ Pty Ltd requiring her to vacate the premises by March 2017. The wife vacated the premises on that day. The business has not traded since.
31The wife placed equipment into storage. In October 2017 the husband removed equipment from storage.
32In December 2017, February and May 2018 financial orders were made regarding the sale of properties.
33In [early] 2018 the wife's mother passed away and the wife became entitled to a quarter share of her estate.
34In 2018 orders were made appointing the wife sole trustee for the sale of the trust properties. By the time the matter came to trial all of the trust properties had been sold and the remaining funds are held in the joint account.
35In 2018 after trial the husband was found guilty of two charges of assault and a breach of the interim VRO. He was placed on a 12 month community based order.
36In 2018 the interim VRO was dismissed.
37In 2019 an order for partial property settlement was made and each party received $65,000.
THE PARTIES AND THEIR EVIDENCE
The wife
38The wife was represented by senior counsel. The wife gave truthful evidence which I found to be reliable. She tended to minimise the husband's contributions during the relationship, but in doing so I do not think she was untruthful, but saw matters from her own perspective. I accept her evidence in relation to her interest in Property F and her inheritance.
Ms T
39Ms T is the wife's sister. In my discretion I had made an order for witnesses out of Court, however Ms T was in Court when the wife gave most of her evidence. The husband objected to her evidence on this basis. I permitted the wife to rely on Ms T’s affidavit and Ms T also gave oral evidence.
40Ms T admitted using foul language to the husband and said she did so because of his behaviour in Court. She confirmed she would tell the truth. Her oral evidence was consistent with her sworn evidence. I did not gain the impression that Ms T tailored her evidence to that of the wife. Notwithstanding her obvious dislike of the husband, I consider she gave truthful evidence, including in relation to Property F and the wife's inheritance.
The husband
41The husband was a self-represented litigant. He is an intelligent man and conducted the proceedings well.
42The husband endeavoured to give truthful evidence. He tended to minimise his conduct towards the wife and strongly believes she obtained an interim VRO to remove him from the business and "usurp" control of it. The husband was evasive and prevaricated at times when specific allegations of violence were put to him stating he did not accept, or did not recall them.
43It was put to the husband that in the absence of a joint management agreement, he colluded with his family to shut the front of business when XYZ Pty Ltd served the notice to quit in 2017 upon the wife. The husband denied that, but I find it difficult to believe that he was, as he said, "excluded" from that decision.
44The husband was evasive when asked about renovations being carried out to the front of business, which are depicted in Exhibit 3, being photographs taken by the wife in 2019. The husband said the work was being done for a friend and it was an issue between that friend and the landlords. He said he did not know who was paying for the renovations. On the other hand, the husband acknowledged that he would reopen Business B after these proceedings are concluded depending on how much he received.
45Where the evidence of the parties as to their conduct after separation conflicts, I prefer that of the wife as I found her to be a more reliable historian in this respect.
THE LAW
46These proceedings are governed by s 79 of the Family Law Act 1975 (Cth) ("the Act").
47Orders altering the property interests of the parties may only be made if the Court is satisfied that it is just and equitable to make such orders. The Court's discretion must be exercised in accordance with legal principles and the Court must not assume the parties' interests in their property are, or should be different from those determined by common law and equity.
48It is necessary firstly to identify the existing legal and equitable interests of the parties in their property.
49Having identified the existing legal and equitable interests of the parties in their property, it is necessary to ascertain whether it is just and equitable to make an order altering the interests of the parties in their property. In that process it is permissible to consider the contributions of the parties, but to do so is not mandatory, nor it is conclusive as to whether the just and equitable test has been met.
50If and when the Court determines it is just and equitable for the parties' interests in their property to be altered the Court must identify and assess the contributions of the parties within the meaning of ss 79(4)(a), (b) and (c) of the Act. The Court must then identify and assess the relevant matters referred to in ss 79(4)(d), (e), (f) and (g) of the Act which include those in s 75(2).
THE EXISTING PROPERTY INTERESTS OF THE PARTIES
51The wife relied on a schedule of assets and liabilities in her papers for the judicial officer. The husband relied on a schedule of assets and liabilities in his papers for the judicial officer.
52The following items were in dispute:
White goods from Property E
53The husband included as an asset of the trust white goods from Property E valued at $1,500. This item did not appear in the wife's schedule.
54The husband explained that the white goods comprised a dryer and dishwasher which were not included in the sale price of Property E. He assumed they were retained by the wife and he estimated their value to be $1,500. It was not established that the white goods are in the possession of the wife and there was no evidence of value. I do not intend to include this item in the balance sheet.
"123" number plate
55The wife has in her possession a number plate with the word "[123]". The husband asserted its value is $10,000. At trial he offered to acquire it from the wife for that amount. He listed this item in his schedule as an asset of the wife with a value of $10,000.
56The wife has owned the personalised number plate for 30 years and it has been on all of her cars. The wife sought to retain it and said it was not for sale. It is listed on her schedule and marked "excluded".
57The wife sought to have the number plate excluded from the balance sheet pointing out that the husband's personalised number plate is listed on both parties' schedules as excluded.
58The wife did not assert an alternative value. There is no independent evidence of value and no application had been made to appoint a single expert witness to value this item.
59In Khademollah & Khademollah (2000) FLC 93-050, Finn J said at 32:
There is a view in this Court that in property settlement proceedings, the Court should not concern itself unduly with issues relating to chattels. I do not necessarily share that view, particularly in cases where the chattels are valuable or have significance for the parties. However, the onus lies on the party who is concerned about the disposition of chattels, or at least concerned to see that an adjustment be made for the value of the chattels in the overall property settlement, to put evidence before the Court of the value of the chattels in order that the Court may satisfy itself that it is not devoting its scarce resources to the resolution of disputes about assets of no or relatively minimal value. There was apparently no such evidence in this case.
60In the absence of reliable evidence as to the value I am unable to attribute a value to this item.
61The Full Court in Holland & Holland (2017) FLC 93-793 confirmed that it is wrong as a matter of principle to refer to any existing legal or equitable interests in property of the parties or either of them as "excluded" from consideration in applications for property settlement. The number plate will be included in the balance sheet with a value as not known.
62The same difficulty arises with the number plate referred to below and I shall apply the same reasoning to it.
"456" number plate
63The husband has in his possession a number plate with the word "[456]". There is no evidence as to its value and neither party asserted a value. The husband listed this in his schedule as "excluded". The wife did likewise although her position was that both number plates should be excluded.
64The value of this item is not known. As with the "123" number plate referred to above, it will be included in the balance sheet as such.
65Both parties will retain their number plates at a value which is not known. This is fair to both of them and is the best I can do upon the evidence.
Property F
66Both parties listed this as an asset of the wife in their schedules. As to its value the husband stated it is not known and the wife excluded it.
67The wife deposed she and her siblings each have a quarter interest in this property which they hold on trust for their father. The wife explained that [a couple of years] earlier it was necessary to "break up his trust" because if her father retained the land it would affect his pension. The land was transferred to the wife and her siblings equally. Her understanding is that she and her siblings can do nothing with it until her father dies, as requested by him. Ms T's evidence with respect to Property F was consistent with that of the wife.
68The wife's unchallenged evidence was that her interest in the property may be worth $100,000. Property F is property in which the wife has an interest. It will be included in the balance sheet at a value of $100,000.
The wife's inheritance
69The wife's mother passed away in 2018 approximately 18 months after the parties separated. The mother's estate was worth around $536,000 and the wife's entitlement was $134,000. The wife will not receive her share as it has been applied to repayment of her borrowings.
70When the wife left the family home with the children she took few household items including beds and a washing machine. She left in the husband's possession the remaining household items which had been accumulated over 24 years. The wife's family provided her with funds to purchase what she needed and to help support the children at a time when she received minimal child support. The wife has borrowed funds from her siblings to meet her legal costs and her living expenses.
71As at the date of filing her trial affidavit, the wife deposed she had borrowed $50,000 from Ms T and $31,500 from [Mr T]. She anticipated borrowing further funds if the matter proceeded to trial.
72The wife filed a financial statement in which she deposed that she understood her entitlement to her mother's estate would be absorbed in relation to borrowings owed to her family for legal fees and living expenses incurred since separation. She further deposed that if there was any nominal balance remaining it would be received by the children. In evidence she confirmed she had used all of her inheritance. As set out below the wife had paid legal costs of $151,165, as at 5 September 2019, sourced from borrowings and the interim property payment. Further borrowings were applied to her living expenses.
73I accept the wife's evidence, corroborated by Ms T that her inheritance has been applied to repayment of loans for legal costs and other living expenses. To the extent that the inheritance has been applied to living costs I am satisfied this occurred after separation at a time when she struggled financially as she supported the children, the youngest of whom was under 18 years of age and she received little child support.
74I am satisfied the wife is not entitled to receive her share of her mother's estate as her entitlement has been extinguished by repayment of borrowings. I find the wife's inheritance is not property in which she has an existing legal or equitable interest. In these circumstances I do not intend to include the wife's inheritance in the balance sheet.
The wife's legal costs
75The wife has paid legal costs to her lawyers in the sum of $151,165. Her total costs and disbursements to date of trial were $142,250. The balance is held in her solicitors' trust account. The source of the funds to pay the legal costs were the interim property settlement payment of $65,000 and the borrowings from her siblings, which she applied to payment of her legal costs and her living expenses.
76Neither party included paid legal costs in their schedule of assets and liabilities.
77Senior counsel for the wife submitted that in line with the Full Court decision of Chorn and Hopkins (2004) FLC 93-204 the wife's legal costs should not be added back as they were sourced almost entirely from her inheritance. The husband asserted that he contributed to the wife's inheritance. As discussed below, I am not persuaded he did so.
78In Trevi and Trevi [2018] FamCAFC 173 Murphy J, with whom Alstergren DCJ and Kent J agreed, referred to the "guidelines" for adding back expenditure on legal fees contained within Chorn and Hopkins (supra) and subsequent cases. His Honour said as follows (footnotes omitted):
31.To the considerations just discussed must be added the propositions emerging from authority that paid legal fees as a category of addback is imbued with considerations specific to that expenditure. The Full Court said in Chorn:
56.In summary, we consider that the above mentioned decisions of the Full Court establish that, while the treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial Judge, in determining how to exercise that discretion, regard should be had to the source of the funds.
57.If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party, who has had the benefit of them.
58.If funds used to pay legal fees have been generated by a party post‑separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post-separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties. Funds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post‑separation income or acquisitions.
32.Those passages can be seen as an attempt to establish "guidelines", undertaken after a detailed examination of earlier authorities, for the treatment of paid legal fees within s 79 proceedings. There can be little doubt that the statements made in that case have been applied by trial judges ever since.
…
36.Paid legal fees occupy a particular position in the consideration of addbacks by reason of s 117(1) of the Act; a matter not relevant to any other form of expenditure or dissipation of property the subject of an addback claim.
37.An order failing to addback legal costs is a pre-emptive decision about one party paying the other's legal costs. The statutorily prescribed default position is that neither party pays all or some of the other party's costs.
79At [39] of Trevi (supra) Murphy J said the guidelines "guide the exercise of a discretion". The decision to add back, or not to add back paid legal fees is a matter for my discretion.
80In my discretion I do not intend to include the wife's paid legal costs or funds held in trust as a notional asset in the balance sheet. These have been paid largely from her post-separation inheritance to which, as discussed below I find the husband did not contribute. These were funds which the wife was entitled to receive in her own right. I accept the inheritance has been applied to repayment of borrowings used to meet the wife's legal costs and her living expenses. The wife's legal costs have also been paid from her interim property payment of $65,000, as have those of the husband.
The husband's legal costs
81The husband has paid legal costs to his solicitors totalling $71,600. Most of those funds comprised the interim property settlement payment of $65,000. The trust ledger of the husband's solicitors disclosed a ledger balance as at 14 August 2019 of $17,442, and the husband had outstanding work in progress of $3,778.
82This would leave a sum payable to the husband of $13,664, being the ledger balance less the work in progress. However, the husband has an outstanding bill to his previous lawyers of approximately $21,000. In these circumstances and in my discretion I do not intend to include the husband's paid legal costs or the ledger balance in the balance sheet as a notional asset. This is consistent with the position of both parties. I am satisfied that an outcome whereby neither party's legal costs are included is one which is just in the circumstances.
Trust debt
83The husband asserts a liability of the trust in the sum of $516. He explained that the debt was greater than this but part of it had been paid. The balance of $516 was garnished from his wages. He had therefore paid this amount and sought to recover it. This is not an outstanding liability of the trust in that it is not owed by the trust. I will take into account the husband's payment of this debt when considering the parties' respective contributions.
THE BALANCE SHEET
84I find the property of the parties to be as set out in the balance sheet below. I have not included items in respect of which the parties agree the value to be nil.
85There are various items of property referred to in the schedules of both parties which they list as "excluded" and to which they do not attribute a value. I have included these items in the balance sheet with the value as "not known" although their inclusion will make no practical difference to the outcome.
Assets
Amount
Trust
Bank Shares
$1,000
[Vehicle A]
$2,000
Business equipment (in husband's possession)
$50,000
Business equipment (in wife's possession)
Nominal
Solar panels
$3,000
Business Account
$392,841
TOTAL TRUST ASSETS
$448,841
Husband
Bank Account
Nominal
[Vehicle B] x2
$3,000
[Vehicle C]
$15,000
Proceeds of sale of [Vehicle D]
$5,000
Proceeds of sale of [Vehicle E]
$350
[Vehicle F]
$500
[Vehicle G]
Not known
Furniture and contents
Not known
Shares (600)
E$2,310
Contents of garage
$2,500
[Vehicle H]
Not known
[456] Number plate
Not known
TOTAL HUSBAND'S ASSETS
$28,660
Wife
Interest in [Property F]
$100,000
[Vehicle I]
Not known
[Vehicle J]
Not known
[123] number plate
Not known
Frequent Flyer points
Not known
Shares (600)
E$2,310
Bank Account
Nominal
Furniture and Contents
Not known
TOTAL WIFE'S ASSETS
$102,310
TOTAL ASSETS
$579,811
Liabilities
Trust
Anticipated costs of sale/settlement of trust properties
$1,930
Outstanding account to plumber and electrician – [Property E]
$354
TOTAL TRUST LIABILITIES
$2,284
TOTAL NET ASSETS
$577,527
Superannuation
Husband
Super
$87,132
Wife
Super
$35,575
Total Superannuation
$122,707
NET ASSETS AND SUPERANNUATION
$700,234
86I find the total of the existing interests of the parties in their property to be $700,234.
IS IT JUST AND EQUITABLE TO MAKE A PROPERTY SETTLEMENT ORDER?
87The parties have been separated for three years and are divorced. Their properties have been sold. The proceeds of sale of trust assets are held in a bank account. Both parties seek a property settlement order including a division of those funds. To separate their financial affairs the parties require orders adjusting their property interests.
88In these circumstances I find it is just and equitable to make a property settlement order.
CONTRIBUTIONS
89 In closing senior counsel for the wife submitted that the parties' property should be divided into two pools, with the wife's inheritance which has been absorbed by legal costs and Property F in a separate pool to the remainder of the parties' property.
90I consider it appropriate to adopt this two pool approach. The nature, form and characteristics of the property in each pool are quite different and a careful assessment of the parties' contributions to the property in each pool is required.
91Pool A will therefore contain the parties' property except for Property F which will be contained within Pool B.
92A significant part of the wife's case concerned the husband's violent conduct towards her. In closing however, and properly in my view, the wife did not press a "Kennon" claim.
93In Kennon v Kennon (1997) FLC 92-757 the majority stated at 84,294:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s 79. We prefer this approach to the concept of ``negative contributions'' which is sometimes referred to in this discussion.
94Senior counsel for the wife said the wife accepted that the evidence did not disclose a pattern of violent behaviour during the marriage. While most of the husband's violent behaviour towards the wife did occur after separation, I am mindful that in Keating & Keating [2019] FamCAFC 46 the Full Court provided some further guidance on the reference in Kennon to violence having occurred "during the marriage", stating that it should not be interpreted as:
"laying down a hard and fast rule that post-separation family violence to a spouse who seeks to continue to contribute to the welfare of the family as a parent is irrelevant."
95Nevertheless, I consider it was proper for the wife not to press the Kennon claim. The wife's own evidence was that since separation she contributed significantly to managing the parties' affairs. Ms T deposed as to the wife's resilience and persistence particularly over the past two years and to her working very hard for her family.
96In all the circumstances and taking the wife's evidence at its highest, I do not consider that her contributions have been made significantly more onerous as a result of the husband's conduct to the extent necessary to include this matter in the "relatively narrow band of cases" to which the considerations in Kennon apply.
97The relevance of the conduct of either party is the impact it had on their financial position. Both parties allege misconduct on the part of the other and consequential waste. I shall take into account the allegations of both parties as to the conduct of the other when considering matters relevant to s 75(2)(o).
98The wife's position is that her contributions during the marriage and after separation were greater than those of the husband. The husband's position is that the parties contributions overall were equal.
Contributions to Pool A
99Pool A comprises the following:
Assets
Amount
Trust
Bank Shares
$1,000
[Vehicle A]
$2,000
Business equipment (in husband's possession)
$50,000
Business equipment (in wife's possession)
Nominal
Solar panels
$3,000
Business Account
$392,841
TOTAL TRUST ASSETS
$448,841
Husband
Bank Account
Nominal
[Vehicle B x2]
$3,000
[Vehicle C]
$15,000
Proceeds of sale of [Vehicle D]
$5,000
Proceeds of sale of [Vehicle E]
$350
[Vehicle F]
$500
Vehicle G
Not known
Furniture and contents
Not known
Shares (600)
E$2,310
Contents of garage
$2,500
[Vehicle H]
Not known
[456] Number plate
Not known
TOTAL HUSBAND'S ASSETS
$28,660
Wife
[Vehicle I]
Not known
[Vehicle J]
Not known
Frequent Flyer points
Not known
[123] number plate
Not known
Shares (600)
E$2,310
Bank Account
Nominal
Furniture and contents
Not known
TOTAL WIFE'S ASSETS
$2,310
TOTAL ASSETS
$479,811
Liabilities
Trust
Anticipated costs of sale/settlement of trust properties
$1,930
Outstanding account to plumber and electrician – [Property E]
$354
TOTAL TRUST LIABILITIES
$2,284
TOTAL NET ASSETS
$477,527
Superannuation
Husband
Super
$87,132
Wife
Super
$35,575
Total Superannuation
$122,707
NET ASSETS AND SUPERANNUATION
$600,234
100At the commencement of cohabitation neither party had any assets of any significance.
101The parties purchased Business B at Property A from the husband's parents and operated it through the A & B Dobney Family Trust.
102The husband's parents assisted the parties financially by guaranteeing their loan, thus saving on the interest rate, by providing household furnishings and helping in the front of business for no payment.
103The parties occupied Property A owned by the husband's parents, the residential dwelling located above the business premises. Initially, the parties paid no rent to the husband's parents. After five years the parties paid rent at a subsidised rate and were able to accumulate savings of $100,000 to purchase investment properties.
104During the parties' marriage they purchased four properties through the trust as set out at [19] above.
105The wife's parents contributed $35,000 to the deposit of Property B. The balance of the price of that property and the price of other properties was borrowed using the equity in the properties as security.
106The parties applied funds to the renovations to Property B. The wife's mother occupied that property.
107Both parties worked in the business. The wife was responsible for the administration of the business. She also worked in the front of business managing the business and staff. The wife's position was that she did the greater share of the work in the business as the husband was frequently absent from it.
108The husband said the parties ran the business jointly. The husband deposed that the parties worked together and that he worked late into the night to prepare Business B for the trade.
109The wife deposed that in addition to the work in the business, she was primarily responsible for the care of the children and the management of the household and attended to household chores including cooking, cleaning and laundry.
110The husband deposed that the parties lived and worked together and that both parties cared for and looked after the family sharing cooking, cleaning and the care of the children to include taking them to school and extracurricular activities.
111The parties carried out improvements to the residential dwelling at Property A owned by the husband's parents. The wife estimated the parties spent approximately $150,000 on renovations to the house and front of business during the relationship.
112The parties separated for a period of time in 2009 and the wife asserted that the husband was less involved in the family and the children's upbringing from that time. Upon the husband's evidence the parties had separate interests and took separate holidays.
113Overall I am satisfied that both parties worked hard in both aspects of their lives being their family and business.
114The parties separated under one-roof in May 2016. The wife and children moved out of the family home in July 2016.
115The wife moved to a rental property. The children lived with her. At that time Child C was 15 years of age. Since then Child B and Child C who are studying full-time, have continued to live with the wife. The wife was financially responsible for the children after separation. The husband paid approximately $44 per fortnight by way of child support for Child C. The wife otherwise paid for Child C's living expenses, including medical and education costs. The wife borrowed funds from family to meet her living expenses.
116The wife paid rent for her accommodation. The husband continued to reside in the family home which had been improved during the relationship. During the period from July 2016 to March 2017, the parties operated the business at different times. This aspect of the parties circumstances will be considered further under s 75(2)(o) below.
117The business premises have remained empty since the notice to quit took effect. The wife placed chattels and equipment in storage, but the husband accessed the storage facility and took possession of them in 2017. After the wife received the notice to quit she organised the sale of [items], packed up the front of business and transported remaining items and equipment to a storage facility. She ensured employees entitlements were paid and attended to payment of creditors. She was responsible for the bookkeeping of the business after its closure and has negotiated with creditors, the bank and real estate agents. She dealt with accounts, tax issues and book work required to finalise financial statements to be completed by accountants.
118The husband was also involved in settling with creditors and authorising payments. The husband has paid by way of garnishment of his wage, a Trust debt in the sum of $516.
119The parties did not manage the sale of properties cooperatively. Ultimately, in 2018 orders were made appointing the wife as sole trustee for the sale of trust properties.
120The husband asserted he contributed to the wife's inheritance in that renovations were carried out to Property B to enable the wife's mother to occupy the property. The husband deposed to the property being "easily rentable without renovations" and the only reason the property was renovated was to benefit the wife's mother. The husband deposed, "Ms Dobney and I did this on the basis that the funds would be returned to us through her mother's inheritance". Contrary to this, the wife said the property was renovated because it was 100 years old, with an old kitchen. The husband said the costs of renovations were $80,000. The wife said the costs were approximately $60,000.
121I am not persuaded that the renovations to this property should be characterised as a contribution by the husband to the wife's inheritance. It is likely the renovations were carried out to make the property more comfortable for the wife's mother, but there was no evidence of any agreement with the wife's mother that the parties would be reimbursed their expenditure when she passed away. The wife's mother's estate is divided equally between her children. The wife's mother paid rent to occupy the property and it was rented again after she passed away. The parties obtained the benefit of the renovations, to the extent that there was any, upon the sale of the property. I consider that the wife's inheritance should properly be considered as a contribution solely by her. I took this into account when concluding that the wife's paid legal costs should not be included in the balance sheet as a notional asset of the wife.
122The task of assessing contributions is a holistic one. I have therefore considered the parties differing contributions in the particular circumstances of their relationship from the commencement of cohabitation to the date of trial. In my assessment, by reason of contribution the percentage division should be 55% to the wife and 45% to the husband. The differential of 10% arises primarily by reason of the wife's post-separation contributions to the welfare of the family. The effect of this finding as to contributions is that the wife is entitled to receive property in Pool A to a value of $330,129 and the husband is entitled to receive property in Pool A to a value of $270,105.
Contributions to Pool B
123Pool B comprises:
Asset
Amount
Wife's interest in Property F
$100,000
124As set out at 67 above, the wife owns a share of Property F.
125In cross-examination, the husband suggested to the wife that while the parties were married her father gifted this property to them. The wife denied this and I accept her denial as there was no evidence of a gift by the wife's father to them both.
126The husband likened his own position to that of Ms T's partner, who apparently received a sum of money from the wife's father to compensate him for a loss of pension as a result of Ms T's interest in her father's property. The husband said it goes to contributions although there was no evidence of the husband making any relevant contribution to the wife's interest in the property.
127The disposition of land by the wife's father to his children was made to suit his purposes. Neither party made any contribution to the acquisition, conservation or improvement of this property. The evidence suggests that the wife's father intends the wife and her siblings to benefit from the transfer of this property upon his death. Property F is a contribution by the wife's father solely on her behalf. The wife will retain 100% of her interest in Property F. There were no other relevant contributions to this property.
SECTION 75(2) FACTORS
128The wife sought an adjustment in her favour on the basis of the husband's likely inheritance.
129The husband asserted the wife is capable of earning more than he is, although I infer he did not seek an adjustment for this as his position was that the parties' contributions were equal and there should be an equal division overall.
130The wife is 52 years of age. She deposed that following the assault by the husband upon her, she experienced ongoing anxiety and stress. Dr Z, whose evidence was not challenged reported that the wife continues to be psychologically affected by her marriage breakdown and will probably require episodic psychological support and counselling until the issue is resolved. He further reported she has bilateral back pain and chest pain in part due to her then occupation as a [business] manager. She can continue to work for the foreseeable future, but these conditions may deteriorate over time requiring her to look at less physical work.
131The husband is 50 years of age, he deposed to suffering from anxiety but is otherwise fit.
132The wife is in employment as [an administrative assistant]. Her gross weekly wage is $1,252. She receives dividends of $2 per week.
133The husband is capable of manual work. Currently he works in his [neighbour's business] casually and does some [odd jobs] for [his relatives]. The husband deposed he has no qualifications and can only earn a low income. The husband's gross weekly wage is $650.
134Since the wife vacated the business premises they have been wallpapered, water leaks repaired, painted, rendered and light fittings have been installed. The husband said the work is being done for a third party, who is a friend of his and it is matter between that third party and the landlord.
135In 2017 the husband accessed the storage facility in which the wife had placed the equipment. The equipment was removed without the wife's consent by persons including the husband's [friend] and placed in the business premises. The husband acknowledged that he said in a newspaper article that Business B was getting a make-over and he described how many aspects of Business B would not be changing.
136I consider it more likely than not that the husband is responsible for, or at least involved in, the improvements to the premises. He acknowledged he would reopen the front of business after the proceedings were concluded depending on how much he received.
137The parties lived a comfortable life during their marriage and the business paid their living expenses. The parties derived a good income from the business while they operated it together during their marriage. The income supported the family comfortably and met the repayments of loans in respect of investment properties. After separation the parties agreed to pay themselves a wage per week of an amount which presumably the business could sustain. I conclude the business which was a successful one, can generate a good income. The husband's financial circumstances will improve if and when he reopens and operates Business B which I consider he is likely to do.
138The parties' property is as set out above. The wife will retain the whole of her interest in Property F and also the property in Pool A to be retained on the basis of my assessment of contributions. This exceeds the property to be retained by the husband by about $160,000.
139The two younger children live with the wife. They have attained the age of 18 years.
140The wife pays rent for her accommodation of $450 per week. The husband occupies the former matrimonial home above the business premises and deposed to paying rent to this mother of $400 per week. I share the wife's scepticism of this in circumstances where the husband said he pays rent in cash and he has not fully disclosed bank statements as ordered.
141Both parties otherwise have necessary commitments and both depose to their expenditure exceeding their income.
142Neither party is eligible for a pension, allowance or benefit.
143Both parties seek to enjoy a standard of living that is reasonable. The standard of living of both parties has reduced since separation.
144Both parties made contributions during the relationship as set out above.
145As to any fact or circumstance the justice of the case requires to be taken into account, I refer to the following:
Allegations of waste
146After the parties separated they both continued to run the business and agreed to draw a wage from it. The husband said the wife would not agree to him having equal access to and control over the business and finances and the parties argued about financial matters.
147In late 2016 the husband grabbed the wife, pushed her across the room and pinned her to a desk. He pulled hair out of her scalp. Staff intervened. The wife ran away and called the police. The husband described this incident as a heated argument over the wife's refusal to give him the cheque book to pay [an electrician] because he said the wife had failed to notice [the alarm system was not working].
148The husband was charged with aggravated assault. He was released on bail subject to a number of conditions. The husband's bail conditions did not prevent him from entering the business premises while the wife was there. The wife returned to the business premises [the following day] despite the incident the day before. The husband instructed the staff to close Business B. When the wife turned lights on the husband turned them off. When the wife unlocked the door, the husband locked it again. There was a scene in front of [clients]. The husband did not permit Business B to open [that day].
149[On that same day] the wife applied for and was granted an interim VRO. The husband was permitted to occupy the living premises above Business B, but not to enter Business B during working hours when the wife would be present.
150[The following day] the wife attempted to reopen Business B and found that the padlock on the front door had been changed. She was unable to unlock it. The controllers for the air conditioning units and the server for [the business equipment] had been removed.
151The husband asserted that the bail conditions adequately protected the wife and that she obtained a VRO to obtain control of the business. The husband said the interim VRO prevented him from doing his job as manager of Business B, director of the company and from entering or being near his home when the wife was at the premises.
152I do not accept the husband's contention that the wife obtained the VRO to "usurp" control of the business. The husband assaulted the wife, an offence for which he was subsequently convicted. The wife suffered physical injuries. She feared for her life and a recurrence of the assault. In these circumstances and in circumstances where the husband was able enter the Business B at will, I am satisfied that the wife obtained the interim VRO to protect her own safety as she needed to do.
153The husband ran Business B when the wife was unwell in [late] 2016. The wife continued to do the bookkeeping. He expressed concern that the wife had paid some staff "off the books".
154During this time the wife alleged the husband bullied and intimidated staff, including their [children]. The wife said this caused undue stress in the working environment and prompted a number of employees to resign from their positions.
155In [early] 2017, police officers directed the husband to leave under threat of arrest. He said this was done at the wife's request and she then stepped in to assume control of the front of business. The wife said this was done to prevent a mass resignation of staff due to the husband's behaviour. After that the husband attended at Property B which is adjacent to the front of business and watched the front of business and the wife's movements from there.
156In early 2017 the wife received a notice to quit the premises which required the property to be vacated [within 30 days] from XYZ Pty Ltd, the trustee company of the husband's parents' family trust. The wife asserted that the husband insisted or persuaded his parents to terminate the lease.
157The husband said he was not involved in the decision to serve the notice to quit upon the wife. The husband's mother was not called to corroborate this evidence of the husband. She had filed an affidavit in the proceedings and had been required for cross-examination. At trial the husband informed the Court that he no longer relied on the affidavit of his mother who was [unavailable] and consequently not available for cross-examination.
158I do not accept the husband's evidence that he was not involved in the decision made by the lessor to serve the notice to quit.
159The husband said the notice to quit was served by reason of non-payment of rent. The wife deposed that after she left the premises, the premises remained empty and has not been "re-rented" since. Consequently no rent has been received. Senior counsel for the wife submitted that the husband was not prepared to tolerate the wife having the management and control of the business and this was made plain when the notice to quit was issued. Senior counsel submitted the clear intention of the husband and his wider family was to remove the wife from control of the business and to re-open at a later date. The husband enjoys a good relationship with his mother and family members. I accept senior counsel's submission. Ultimately this led to the demise of what had been a successful business.
160In support of the wife's argument as to waste, she referred to a number of incidents which occurred after the notice to quit was served upon her.
161The husband withdrew monies from the business totalling $10,459 in early 2017. However I consider some of the husband's explanations for this were not unreasonable in that some withdrawals were made for the benefit of the business and partly for legal fees.
162In early 2017 the wife opened Business B to find the air conditioning remote controls and [items] removed from the premises. One of the air conditioners could not be turned on without the remote which made the front of business stiflingly hot and uncomfortable and the days' trading was affected.
163In early 2017 the wife found [items] had been removed from the premises. The husband had given his brother permission to enter Business B and remove the items.
164In early 2017 when the wife opened the front of business, a delivery was missing. The wife was told the [delivery] had been placed in the garage of the premises and upon entering the garage she found the items which had been removed.
165Upon vacating the premises the wife sold as [many items] as she could. She packed up the business and transported the remaining items and equipment to a storage facility which was subsequently accessed by the husband. She applied remaining business funds to pay creditors.
166The parties attempted to negotiate as to who might assume the running of the business after this time, but their negotiations were unsuccessful. The business has not operated since 2017.
167The wife deposed that ultimately as a result of the husband's conduct and the eviction the business ceased to exist. She further deposed that the closure of the business significantly affected the pool of assets available as the value of the business has been lost and the business was supporting the parties' property portfolio which fell into arrears as they ceased being able to generate and receive business income.
168The wife alleged that the husband's conduct amounted to waste and led to the diminution of the parties' assets.
169The husband deposed the interim VRO was dismissed entirely at the first hearing and he said the wife gave false testimony as to the business and the parties' roles in it.
170The transcript of the proceedings in relation to the interim VRO was annexed to the husband's trial affidavit. The Magistrate expressed concern about the impact the interim VRO might have upon the husband attending his place of work. The husband pointed out that the wife informed the Magistrate that the husband did not need to be there to work and said she operated the day-to-day running of the business.
171The transcript discloses that the wife also told the Magistrate she did not feel safe there. The wife described the husband as an abusive, intimidating and controlling man who was resorting to violence because intimidation was not working. The wife told the Magistrate "He just threatens and intimidates, and everybody is terrified of him. Even the staff are not comfortable when he's there."
172The husband deposed that ultimately the wife gained sole control of the business via the application for the interim VRO and within six months had appropriated its income, assets and equipment and run up $80,000 in debt and failed to pay rent. He alleged the wife wasted the business assets through the mismanagement of the business. He deposed that Business B earnings and rental income were not accounted for and his access to business income ceased. He deposed that business activity statements and tax returns were not filed, demands for lodgement of tax records were ignored and cash takings were unaccounted for. The husband alleged rental income was diverted to the wife. The husband alleged the wife did not pay suppliers. He received complaints about her management of the business funds were diverted to an eftpos machine owned by the wife's friend.
173The husband alleged the wife breached [OHS] requirements. He felt excluded from the business, the name and reputation of the business had been eroded and he said after the wife left she stripped the business of its items and assets.
174The husband deposed the commercial lease rent to XYZ Pty Ltd was not paid in full resulting in the wife being evicted. The husband deposed "I was extremely upset and disappointed to see the closure of the business even though I knew that Ms Dobney was destroying the business and our reputation in our community."
175By this time the parties had not been able to negotiate a co‑management agreement. I do not accept the husband's assertion that he instructed his lawyers to do everything they could to keep the business open. As discussed above, I have little doubt he was instrumental in the notice to quit being served upon the wife.
176The wife denied the husband's allegations that she mismanaged the business. She deposed that the banking was done daily and copies of the day's takings were left for the husband at the end of the day. She did not stop the husband from accessing the business bank accounts, however she deposed he withdrew funds from the account when he wanted and without notice causing the account to overdraw and cheques to bounce.
177The wife explained as a result of the husband moving approximately $10,000 from the business account in early 2017 she ceased using the joint account and instead deposited the daily takings in a dormant business account. For the last week of trading, the wife used a family member's eftpos machine. At the conclusion of each day, the family member transferred the funds to the wife's account who then transferred them to the business account. After the final week of trading, the wife reimbursed the family member $28,272, being the eftpos fee he was charged. The wife's explanation in this respect was consistent with the bank statements, which became Exhibit 7.
178The wife had nothing to gain and much to lose by deliberately mismanaging the business. I am satisfied she did not do so and that she did her best to operate the business in very difficult circumstances in which the husband's conduct undermined her efforts.
179Both parties said that the previously profitable business ceased trading and in that way their assets were diminished.
180The wife deposed "The business has been destroyed and, through Mr Dobney's sabotage, the value of this significant asset has been depleted".
181The husband deposed "It is my position that Ms Dobney's actions deliberately sabotaged the business and lost us our livelihood. There has been massive financial consequences as a result of this".
182In the marriage of Kowaliw and Kowaliw (1981) FLC 91-092 Baker J, said at paragraph 76,644:
…
As a statement of general principle. I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a)where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b)where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para (a) and (b) above having economic consequences is clearly in my view relevant under sec.75(2)(o) to applications for settlement of property instituted under the provisions of sec 79.
183I am satisfied that the wife operated the business in very difficult circumstances and any mismanagement by her was not reckless, negligent or wanton. I am satisfied however that the husband's conduct was reckless and negligent and designed to obstruct the ongoing running of the business by the wife, a business which he sought to acquire.
184The husband was instrumental in the notice to quit being served upon the wife. She did what she could to continue to operate the business, but ultimately had to comply with the notice to quit and the business ceased trading. The value of this asset was lost.
185Neither party quantified the loss. I am unable to do so and it is not necessary for me to do so. In Zubic & Zubic and Anor [2019] FamCAFC 168 the Full Court accepted the trial judge's finding that it was not necessary to make a precise quantification of the amount to take waste into account in assessing what, if any adjustment under s 75(2) should be made as a result of waste.
186I consider that the justice and equity of the case requires me to take into account the conduct of the husband as a factor warranting an adjustment in favour of the wife.
187The husband complained that the wife acted slowly to sell the various properties and refers to the sale of Property E as an example of her delay. The wife asserted the husband's lack of cooperation caused delay, for example with respect to the sale of shares and property. Ultimately the wife was appointed sole trustee for the sale of the properties. The parties' inability to cooperate regarding the sale of assets was linked to their negotiations and the husband asserted the wife denied him the opportunity of taking over the business as a going concern. I am unable to make a finding of financial misconduct with respect to the sale of properties.
The husband's expectation of inheritance
188Senior counsel for the wife submitted that upon the passing of the husband's mother, the husband is likely to inherit an interest in XYZ Pty Ltd and that he will have a financial interest or financial resource in that company. The husband's father passed away in 2018. The husband's mother is the sole director and shareholder of the shares issued. XYZ Pty Ltd owns the premises at Property A which comprise the residential premises, Business B and the adjacent [business] premises. XYZ Pty Ltd also owns a [rural property] at [Suburb A].
189The husband's mother owns a home in [Suburb B]. The husband's mother is [in her 80s]. The husband said she is quite strong. He said he is 50 years of age and a smoker and his mother could live to be 100. The husband said he has not seen his mother's Will. He is the youngest of [his] siblings and he has a close relationship with his siblings and a good relationship with his mother.
190It was put to the husband that there is a reasonable probability that he and his siblings will receive a share in his mother's estate. He accepted there is a reasonable probability that he and his siblings will "become shareholders in the estate", but he said the estate will not be broken up. When asked if he will become a shareholder in XYZ Pty Ltd, he replied yes.
191In De Angelis & De Angelis [1999] FamCA 1609, the Full Court said:
95The discussion by the Full Court in White and Tulloch v White (1995) 127 FLR 105; 19 Fam LR 696; (1995) FLC 92 – 640 of this question of the treatment of anticipated inheritance in property settlement proceedings indicates that there is no absolute rule and that each case will depend on its own facts. However, we think it important to remember that the court is required in exercising the jurisdiction under s 79 of the Family Law Act 1975 to accord justice and equity to both parties.
192There was no evidence as to the value of the husband's mother's property and consequently any expectation the husband may have to share in her estate is not quantified. There was no medical evidence as to the husband's mother's health. I decline to speculate as to her longevity, the costs of her care and the value of her estate.
193I do not consider that the justice and equity of the case requires me to make an adjustment in favour of the wife in respect of the husband's expectation of inheritance.
ASSESSMENT OF SECTION 75(2) FACTORS
194Having considered the s 75(2) factors as a whole and making the "leap" from words to figures (Steinbrenner v Steinbrenner [2008] FamCAFC 193) I am of the view that an adjustment in favour of the wife of 5% of Pool A is warranted. 5% of Pool A is $30,012.
195The s 75(2) factors do not warrant an adjustment of the contribution based percentage division of property in Pool B.
JUST AND EQUITABLE
196The division of property in Pool A will be 60% to the wife and 40% to the husband. The total of the property in Pool A is $600,234. The wife's entitlement is $360,140. The husband's entitlement is $240,094.
197The wife will retain 100% of the property in Pool B. Her entitlement is $100,000. The total of Pools A and B is $700,234. The total of the property to be retained by the wife of Pools A and B is $460,140. The total of the property to be retained by the husband of Pools A and B is $240,094. The wife will receive 66% of the parties' property overall and the husband will receive 34% overall. The differential is $220,046 or 32% of the parties' property.
198The wife retains the following:
Assets
Amount
Business equipment (in wife's possession)
Nominal
Interest in Property F
$100,000
Vehicle I
Not known
Vehicle J
Not known
123 number plate
Not known
Frequent Flyer points
Not known
Shares (600)
E$2,310
Bank Account
Nominal
Furniture and Contents
Not known
Super
$35,575
NET ASSETS AND SUPERANNUATION
$137,885
199The husband retains the following:
Assets
Amount
Bank Shares
$1,000
Vehicle A
$2,000
Business equipment (in husband's possession)
$50,000
Solar panels
$3,000
Bank Account
Nominal
Vehicle B x2
$3,000
Vehicle C
$15,000
Proceeds of sale of Vehicle D
$5,000
Proceeds of sale of Vehicle E
$350
Vehicle F
$500
Vehicle G
Not known
Furniture and contents
Not known
Shares (600)
E$2,310
Contents of garage
$2,500
Vehicle H
Not known
456 number plate
Not known
Super
$87,132
NET ASSETS AND SUPERANNUATION
$171,792
200A joint asset of the parties comprises the sum at credit of the Business account which are the joint funds available for distribution.
201The sum at credit of the Business account is $392,841. The trust liabilities are $2,284. Consistent with the orders sought by both parties, these liabilities should be paid. Although the husband proposed that the liabilities of the business be paid, in evidence he disputed payment of the two trust liabilities. In relation to the account due to the plumber/electrician the husband said Property E was new and he did not understand why a repair was necessary. In relation to the costs of sale/settlement of trust property, the husband said the real estate agent refused him access to the property which he considered to be unreasonable.
202In my view these accounts must be paid from the funds held in trust and the husband's complaints are not a reason not to do so. The net trust funds available for division are $390,557. These are the joint funds to be divided between the parties in such proportions as to achieve their percentage entitlements.
203If each party retains the property as set out above, the wife will retain property to a net value of $137,885. The husband will retain property to a net value of $171,792. To achieve the percentage division ordered, the wife will receive $322,255 from the joint funds and the husband will receive $68,302. The actual amount to be received by each party will be calculated by reference to the balance sheet and the actual amount at credit of the Business account to take into account any accrued interest.
204The wife does not own a home, she will receive a relatively modest cash sum and retain her interest in Property F which she may realise at a future date. She is able to work, although her health difficulties may impact on her work in the future.
205The husband will also have modest savings. He is likely to re-open the business and there is no reason to think it would not be as successful as it was in the past. He is likely to derive a good income from it.
206Having regard to these matters and in the context of this relationship I am satisfied that the orders that I make reflecting this outcome are those which are just and equitable.
THE PROPOSED ORDERS
207I propose to make the orders set out below. The wife sought the return of chattels and the husband sought the return of the family dog. This was not the subject of evidence at trial and I am therefore unable to make a determination about these matters.
1Within 7 days of orders, the parties do all things and sign all documents necessary to disburse the funds held in the [joint] Bank account as follows:
(a)in payment of the costs of sale/settlement of [Property E], estimated as $1,930;
(b)in payment of an account to plumber/electrician in respect of [Property E] of $354; and
(c)the balance be divided in such proportions to achieve an overall percentage division of the property of the parties 66% to the wife and 34% to the husband taking into account the assets and liabilities to be retained by each of them as set out in paragraphs 198 and 199 above.
2Within 7 days, and contemporaneously with the parties' compliance with order 1 the wife shall:
(a)do all such acts and sign all documents necessary to transfer and assign all her right, title and interest in the following entities and their assets to the husband:
(i) [Business A];
(ii)[A & B Dobney Family Trust] ("the trust"); and
(iii)the business "[Business B]";
(b)if requested to do so by the husband, forthwith execute a document saying she has no further entitlements to the trust save and accept if the trustee of the trust makes a distribution to her;
(c)resign as a guardian, trustee and/or appointor (if applicable) of the trust; and
(d)forego any claim in relation to arrears of wages, salaries, benefits, bonuses, loan accounts and commissions owing to her by the trust;
(e)transfer all her shares in [Business A] to the husband;
(f)resign as a director and secretary of [Business A];
(g)forego any claim in relation to arrears of wages, salaries, benefits, bonuses, loan accounts and commissions owing to her by [Business A];
(h)transfer any interest whatsoever she has in [Business A] to the husband absolutely; and
(i)sign the necessary authority with the bank to enable the husband to solely operate the bank accounts in the name of [Business A], if required.
3Contemporaneously with the wife's compliance with order 2, the husband do all acts and things to:
(a)secure the release of the wife from any liabilities, claims, debts, demands or actions against her, in her capacity as beneficiary of the trust, including the release of the wife as guarantor for all loans and accounts and any other documents on which the wife may have been named as a guarantor;
(b)indemnify the wife and keep her indemnified in relation to any liabilities, claims, debts, demands or actions against the wife in relation to the trust, including as guarantor for all loans and accounts and any other documents on which the wife may have been named as a guarantor;
(c)cause the trust to, and in his personal capacity to, indemnify the wife and keep her indemnified as to any liability arising in respect of any claim, debt or demand for which the wife through the trust would or could become liable;
(d)indemnify the wife in relation to all liability arising from [Business A];
(e)secure the release of the wife from any liabilities, claims, debts, demands or actions against the wife, in her capacity as Director and shareholder of [Business A], including the release of the wife as guarantor for all loans and accounts and any other documents on which the wife may have been named as a guarantor; and
(f)indemnify the wife and keep her indemnified in relation to any liabilities, claims, debts, demands or actions against the wife, in her capacity as Director and shareholder of [Business A], including as guarantor for all loans and accounts and any other documents on which the wife may have been named as a guarantor.
4Within 7 days of the date of these orders the wife shall prepare and execute in favour of the husband a transfer of the whole of her right, title and interest in the Shares and deliver the same to the husband.
5Within 7 days of the date of these orders the wife shall prepare and execute in favour of the husband a transfer of the whole of her right, title and interest in the GST refund.
6Within 7 days of the date of these orders the wife shall handover to the husband all the social media, passwords and all other equipment and documentation she retains, holds or controls in relation to the entities referred to in order 2(a).
7Except as otherwise provided for in these orders:
(a)the interest of the wife in the following vest in the husband:
(i)husband's Motor vehicles including the two [Vehicle B’s], [Vehicle C], [Vehicle F], [Vehicle G] and the [456] number plate;
(ii)superannuation benefits in the name of the husband;
(iii)monies standing to the credit of the husband in any bank account or financial institution;
(iv)the contents of the garage;
(v)the business name and intellectual property of "[Business B]";
(vi)any interest in the trust and its assets;
(vii)the share portfolio in the name of the husband; and
(viii)any other asset in the name, possession or control of the husband.
(b)the interest of the husband in the following vest in the wife:
(i)the wife's interest in [Property F];
(ii)the wife's motor vehicles including the [Vehicle I], [Vehicle J] and the [123] number plate;
(iii)the share portfolio in the name of the wife;
(iv)monies standing to the credit of the wife in any bank account or financial institution;
(v)superannuation benefits in the name of the wife;
(vi)furniture and contents of the wife's home; and
(vii)any other asset in the name, possession or control of the wife.
8Each party shall indemnify and keep the other party forever indemnified in relation to any liability encumbering an item of property that party is retaining pursuant to these orders or any liability in the name of that party.
9The parties do all such acts and sign all documents promptly to give effect to these orders.
10All extant applications otherwise be dismissed.
11All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
12In relation to material tendered as an exhibit into evidence in these proceedings:
(a)all parties must collect the exhibits tendered by them ("their exhibits"), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today’s date;
(b)all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits;
(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.
13In the event of an appeal being lodged prior to the expiration period of 42 days, orders 11 and 12 above do not apply.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
Associate30 DECEMBER 2019
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