Fabron & Fabron (No 2)
[2023] FedCFamC1F 754
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fabron & Fabron (No 2) [2023] FedCFamC1F 754
File number(s): SYC 1089 of 2019 Judgment of: HARPER J Date of judgment: 1 September 2023 Catchwords: FAMILY LAW – PROPERTY – Final property adjustment – Where primary asset is the former matrimonial home – Where marriage was of significant length – Where husband made the majority of the financial contributions – Contributions assessed as 56/44 per cent in the husband’s favour – Order for property division of 56/44 per cent in favour of the husband following consideration of s 75(2) factors – Order for sale of former matrimonial home.
FAMILY LAW – PROPERTY – Application for adult child maintenance pursuant to s 66L of the Family Law Act 1975 (Cth) – Where youngest child of the marriage will turn 18 in 2023 – Where wife made application for adult child maintenance – Where wife did not satisfy the Court it was necessary to make an adult child maintenance order – Discretion not enlivened – Application dismissed.
Legislation: Family Law Act 1975 (Cth) Pt VIII, ss 66K, 66L, 75, 75(2) 79, 79(2), 79(4), 80, 81 Cases cited: Barnell & Barnell (2020) FLC 93-961; [2020] FamCAFC 102
Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Burke and Burke (1981) FLC 91-055
Chang v Su (2002) FLC 93-117; [2002] FamCA 156
Crapp and Crapp (1979) FLC 90-615
Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
G and G (2000) FLC 93-043; [2000] FamCA 1075
Gould & Gould (2007) FLC 93-333; [2007] FamCA 609
HDM & MM [2006] FamCA 47
Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
Hicks & Trustee of the Bankrupt Estate of Hicks (2021) FLC 94-006; [2021] FamCAFC 19
Horrigan & Horrigan [2020] FamCAFC 25
Hurst & Hurst (2018) FLC 93-851; [2018] FamCAFC 146
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
JEL and DDF (2001) FLC 93-075; [2000] FamCA 1353
Keskin and Keskin (2019) FLC 93–932; [2019] FamCAFC 236
Kowalski and Kowalski (1993) FLC 92-342
Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21
Manolis & Manolis (No 2) [2011] FamCAFC 105
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Norman & Norman [2010] FamCAFC 66
Spalla & Spalla (2023) FLC 94-145; [2023] FedCFamC1A 87
Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52
Watson & Ling (2013) FLC 93-527; [2013] FamCA 57
Whiton & Dagne (2019) FLC 93-923; [2019] FamCAFC 192
Woodcock v Woodcock (1997) FLC 92-739
Division: Division 1 First Instance Number of paragraphs: 153 Date of hearing: 13–17 April 2023 Place: Sydney Solicitor for the Applicant: Mr Rogers of Barkus Doolan Winning The Respondent: Litigant in person ORDERS
SYC 1089 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FABRON
Applicant
AND: MS FABRON
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
1 SEPTEMBER 2023
THE COURT NOTES THAT:
A.The Court notes the following definitions for the purposes of these orders:
(1)"Act" means Family Law Act 1975 (Cth);
(2)"husband" means Mr Fabron born 1970;
(3)"wife" means Ms Fabron born 1965;
(4)"Suburb K property" means property situated at J Street, Suburb K in the State of New South Wales being the whole of the land contained in Folio Identifier … together with the improvements, fixtures and fittings erected there on and/or attached thereto, of which the wife and husband are the registered proprietors;
(5)"Suburb K property mortgage" means the mortgage to the Commonwealth Bank being mortgage registration dealing number …13, registered on the title of the Suburb K Property;
(6)"husband's bank accounts" mean the following bank accounts held solely in the name of the husband:
(a)Westpac account number #...38;
(b)Westpac account number #...28;
(c)L Bank account #...01; and
(d)Any other account held in the husband's sole name;
(7)"husband's motor vehicle" means Motor Vehicle 1, of which the husband is the registered owner;
(8)"husband's company" means the company M Pty Ltd of which the husband is a director and in which the husband holds 10 ordinary shares of 10 ordinary shares issued;
(9)"N Company" means the Country D company known as N Company which holds real property located in Country D of which he holds shares being a total interest of 22.4 per cent totalling 269 shares out of 1202 shares. Some of the shares are subject to a condition in favour of the husband's mother;
(10)"husband's interest in fields" means the husband's interest in fields in Region P, Country D being plots then registered under … and plots registered under … being a 25 per cent interest subject to a condition in favour of the Husband's mother;
(11)"husband's interest in a Country D apartment" means the 50 per cent bare ownership interest held by the husband in an apartment in Country D know as Q Property which includes:
(a)lot … a small apartment;
(b)lot … a lock up storage; and
(c)lot … which is a carpark;
of which the husband has bare ownership of 50 per cent of each;
(12)"husband's superannuation entitlement" means the husband's entitlement in any superannuation fund including but not limited to his superannuation entitlement with Superannuation Fund 1;
(13)"wife's bank accounts" means:
(a)ANZ account #...78;
(b)CBA off-set account number #...05;
(c)ANZ account #...76; and
(d)Any other account held in the wife's sole name;
(14)"wife's superannuation entitlement" means the wife's entitlement in the superannuation fund including but not limited to her superannuation entitlements with Superannuation Fund 2;
(15)"CBA Line of Credit loans" means:
(a)the CBA Line of Credit facility having BSB … account number …94; and
(b)the Line of Credit facility having BSB … account number …72;
which are both held in the husband and wife's joint names;
(16)"husband's loan from his mother" means the loan obtained by the husband from his mother valued at $187,973.
THE COURT ORDERS THAT:
1.Within 90 days of the date of these orders, the parties do all acts and things and sign all documents necessary to cause the Suburb K property to be listed for sale and sold for the best price reasonably obtainable in the following manner:
(a)List the Suburb K property for sale by private treaty or auction with an agent agreed upon between the parties within seven (7) days from the date of the making of these orders and if no agreement is reached, with such agent as determined by R Valuers ("agent");
(b)The list price or reserve price for the purpose of such sale shall be such price as agreed between the parties seven (7) days from the date of the appointment of the agent or in the absence of agreement, the price recommended to the parties by the agent;
(c)The parties shall each co-operate in every way with the agent including (without limiting the generality of the foregoing):
(i)Making the key available to the agent;
(ii)Allowing inspection of the property at all reasonable times requested by the agent;
(iii)Doing or saying nothing to hinder or prevent a sale being effected;
(iv)Ensuring the Suburb K property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and
(v)Signing all documents requested by the agent in relation to the listing for sale of the Suburb K property except a contract or agreement for sale which has not been authorised by the parties' solicitors.
(d)If the Suburb K property doesn't sell within three (3) months of first being listed then the parties do all things and sign all documents to cause the Suburb K property to be sold by auction with the agent or such other agent as agreed between the parties in writing;
(e)In reimbursement to the parties of costs associated with performing works to the Suburb K property provided such works are agreed to between the parties in writing;
(f)The reserve price for the purposes of the auction will be such price as agreed to by the parties in writing and in the absence of agreement then such price as determined by R Valuers;
(g)In the event the bidding at the auction does not reach the reserve price the parties may negotiate with the highest bidders or any other interested person and effect a sale of the Suburb K property at a price which is not more than five (5) per cent below the reserve price, or at such other price as the parties agree upon in writing;
(h)If the Suburb K property remains unsold four (4) weeks after the date of the first auction, the property shall be listed for sale by second auction with a new real estate agent as agreed between the parties and if there is no agreement as to the real estate agent, within five weeks of the first auction, the husband shall provide to the wife the name of three real estate agents (“real estate agents”) to act in respect of the sale of the Suburb K property and within a further seven (7) days of the husband providing to the wife the names of real estate agents, the wife shall select one of the real estate agents to act on the sale of the Suburb K property and Orders 1(c)–(g) herein will apply mutandis mutatis;
(i)If the Suburb K property remains unsold after the second auction, the husband and wife shall list the Suburb K property for sale by private treaty with the agent and shall accept any unconditional offer to purchase the Suburb K property which is greater than the amount five per cent below the second auction reserve price or such other lower price as the husband and wife agree in writing;
(j)If the Suburb K property remains unsold for a period of six (6) months after the date of these orders, each party has liberty to apply to the Court for further or other mechanical orders as to the method and price of sale of the property;
(k)The parties shall instruct S Lawyers to have the conduct of the sale on behalf of both parties or, such other solicitor as agreed upon by the parties in writing (“the solicitor”);
(l)The parties shall each execute a contract for sale in the form prepared by the solicitor having the conduct of the sale at the sale price; and
(m)Neither party may confer with any agent without the consent of the other party about sole or exclusive agency in respect of the Suburb K property or to any commission.
2.On completion of the sale of the Suburb K property the parties do all acts and things to cause the proceeds of sale to be paid in the following manner and priority:
(a)In payment of such sum as required to discharge the Suburb K property mortgage and the CBA Line of Credit facilities;
(b)In payment of the selling costs, agent’s commission, auction fees and the costs of any stylists if one is engaged;
(c)In payment of the usual conveyancing adjustments;
(d)In payment of such sum then remaining as follows:
(i)In payment to the wife of 44 per cent;
(ii)Then in payment to the wife of the further amount of $515,872 less the amount of $5,243.40; and
(iii)The remaining balance of the proceeds of sale shall be paid to the husband.
3.Pending the sale of the Suburb K property, the wife shall meet all expenses in relation to the Suburb K property including but not limited to all scheduled mortgage repayments, statutory rates and charges, and all payments necessary to maintain the property in good order and condition, as and when they fall due.
4.Pending the sale of the Suburb K Property, the parties be restrained from dealing with their interest in the Suburb K property save for the purpose of complying with these orders, including transferring, assigning, encumbering or further encumbering (including by causing or permitting any increase in the amount of any liability secured over or by reference to) any interest in the Suburb K property.
5.Except as provided to the contrary by these orders, the husband shall retain, to the exclusion of the wife, all of his rights, title and interests in:
(a)The husband's superannuation entitlement;
(b)The husband's motor vehicle;
(c)The husband's bank accounts;
(d)The company;
(e)The husband's interest in a Country D apartment;
(f)The husband's interest in fields;
(g)The husband's interest in N Company; and
(h)All other property and chattels of whatsoever nature and kind in his possession or control as at the date of the making of these orders or coming into existence in the future.
6.Except as provided to the contrary by these orders, the wife shall retain, to the exclusion of the husband, all of her rights, title and interests in:
(a)The wife's bank accounts;
(b)The wife's superannuation entitlement; and
(c)All other property and chattels of whatsoever nature and kind in her possession or control as at the date of the making of these orders or coming into existence in the future.
7.The husband be responsible for and shall indemnify the wife and keep her indemnified in respect of the following:
(a)The husband's credit card debt;
(b)The husband's debt to the Australian Taxation Office; and
(c)The husband's loan from his mother.
8.The wife be responsible for and shall indemnify the husband and keep him indemnified, in respect of the following:
(a)The wife's credit cards;
(b)Any tax liabilities existing or arising in the future relating to any asset the wife retains under the terms of these orders;
(c)All other liabilities existing now or arising in the future held in the wife's sole name or relating to any asset retained or received by the wife pursuant to these orders.
9.Each party forgives any loans owing from one to the other.
10.In the event that either party refuses or neglects to execute any deed, document or instrument to give effect to these orders within 14 days of such document being tendered for signature, a Judicial Registrar of the Federal Circuit and Family Court of Australia is appointed pursuant to s 106A of the Act to execute any such deed, document or instrument in the name of such party and to do all acts and things necessary to give validity and operation to any such deed, document or instrument and for the purpose of this order a party shall be deemed to have refused to execute any such deed, document or instrument, if the said deed, document or instrument is not returned to the submitting party within 14 days of the said document being forwarded to the other party's solicitor or the other party directly by email where an electronic document or by ordinary mail where a physical document.
Other Orders
11.All outstanding applications and any amendments thereto otherwise be dismissed.
Costs
12.Any application seeking a costs order, together with any affidavit in support, is to be filed within 28 days of the date of these orders and in the event no such application is filed within the time specified there shall be no order as to costs.
THE COURT DECLARES THAT:
13.Upon compliance with these orders, the liability of the wife pursuant to a costs order in favour of the husband made on 9 November 2020 shall stand satisfied.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fabron & Fabron has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION
These are property adjustment proceedings under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) between the applicant husband, Mr Fabron (“husband”) and the respondent wife, Ms Fabron (“wife”).
The wife was self-represented at the final hearing. Although she possesses relevant professional experience, the evidence indicated that she had not worked in such capacity since around 1998.
The proposals of the parties can be summarised as follows. The husband sought orders that the jointly owned former matrimonial home be sold and that, after discharge of the mortgage and sale costs, 45 per cent of the sale proceeds be paid to the wife, with the balance to him. In addition, the husband proposed that a superannuation splitting order be made, with a base amount of $243,893 to be allocated to the wife. According to the husband’s aide memoire setting out his calculation of the overall outcome, this will require, in addition to her share of the proceeds of sale, a cash payment of $280,000.
The wife’s proposed relief went through some evolution during the trial. She initially sought orders that the husband discharge the mortgage on the former matrimonial home and transfer it into her sole name. However by the conclusion of the trial, she amended her orders to seek that the matrimonial home be transferred into her name with its existing encumbrance of approximately $930,000, for the husband to pay her $270,000 to be applied to the mortgage and that the husband be ordered to pay adult child maintenance in the sum of $5,119.92 per month for the period 1 January 2024 until 31 December 2027 or 2028.
BACKGROUND
The wife was born in 1965 and is 57 years of age. The husband was born in 1970 in Country D and is currently 52 years of age.
The parties began living together in 1995 and were married in 1997. The date of separation was contested. The husband asserts that they separated under one roof in October 2012 and continued living together in the former matrimonial home until he vacated the property in August 2018. The wife asserts that they separated on around 5 June 2017, but continued living under the same roof until August 2018. The husband has since resided in rental properties and the wife has remained in the former matrimonial home. The parties did not suggest the difference in separation date was material. They continued to combine their finances until at earliest, the date in which the wife asserts separation had occurred.
The parties have three children, two of whom have reached majority. The remaining child, Y, was born in 2005 and is aged 17.
The parties divorced in 2021.
At the commencement of their relationship, the parties resided in Sydney. The husband worked as a financial professional and the wife worked as a professional.
Between 1997 and 1999, the parties lived in City U due to the husband’s work. From around 1998, the wife ceased work, having previously been employed as a manager, as she was not eligible to obtain a working visa in Country T. The parties returned to Sydney in 1999.
The husband continued his employment in the finance industry between 2000 and 2016.
The wife ceased formal full-time employment in 1998 the wife did not return to work until 2018. Since separation, she has worked on a casual basis, has also undertaken professional work on a contract basis.
In 2001, J Street, Suburb K (“Suburb K”) was purchased for over $550,000 in the names of the parties. It was the former matrimonial home. The purchase was funded by savings of approximately $100,000 from the husband, a gift of $185,000 from his parents, and a Westpac mortgage of $380,000 registered in the names of both parties.
Extensive renovations to Suburb K were undertaken in 2008, including the addition of a second storey. The total cost of these renovations was about $600,000, which was funded by a further loan from Westpac, and later refinanced with the Commonwealth Bank of Australia (“CBA”) which discharged the Westpac loans but did not increase the borrowings. Each time the parties remained jointly liable for these borrowings.
Although the evidence was not clear, it was undisputed that at some point, probably at the time of the CBA refinance, the parties established two revolving lines of credit with CBA, #...72 and #...94 both in the joint names of the parties. They also established a CBA offset account connected to the home loan mortgage account.
Two apartments were purchased in Suburb V in 2013. 1 W Street, Suburb V (“1 W Street”) was purchased for over $650,000, and 2 W Street, Suburb V (“2 W Street”) was purchased for over $450,000 (collectively the “Suburb V apartments”). Both apartments were purchased in the husband’s sole name. To settle the purchase of 1 W Street the husband obtained an investment loan from CBA for $540,000 (#...07), and additional finance secured against Suburb K in the amount of $160,000 being mortgage account #...07. To settle the purchase of 2 W Street the husband obtained an investment loan from CBA for $370,000 (#...08) and withdrew about $113,000 from the parties existing line of credit #...72 secured against Suburb K.
In 2016 the husband was made redundant, effective from mid-2016, from his position.
The Suburb V apartments were sold by the husband in 2017 for $900,000 and $660,000 respectively. These sales discharged mortgage accounts #...07 and #...08. The net proceeds of both sales, totalling $621,021.45, were deposited into the parties CBA joint account. From there the husband repaid a small loan of $13,631, repaid loan account #...07 used to purchase the Suburb V apartments, applied $142,855.36 to the revolving line of credit #...72 and $50,188.10 to #...94.
On 5 June 2017 the parties entered into an agreement, which it appears they drafted together, the apparent purpose of which was to settle a basis for a division of their assets (“the June 2017 agreement”). The wife relied upon this agreement in making her case. It is unnecessary to set out its terms in full. However, the following should be recorded to help understand some of the wife’s arguments.
The June 2017 agreement recited the separation of the parties from October 2012, and set out the then existing assets with their agreed value. It recited that the parties agreed to continue to live under one roof until the “Sunset Date” which was 31 December 2023. It included the following paragraph:
The husband was made redundant in [mid-2016] effective from [mid-2016] and has been looking for a job ever since. The wife has attended to the children’s education and upbringing and has not been working since approximately 1998. The wife has been studying to obtain [a postgraduate qualification] for 5 years and is due to complete the [qualification in] 2018.
(Wife’s affidavit filed 31 March 2023, annexure 87)
The agreement also provided for the following matters:
(a)the wife would receive Suburb K but the husband would continue service the mortgage secured against it;
(b)the husband would sell his interest in a Country D apartment valued at $464,000 and apply the proceeds to reduce the Suburb K mortgage to a debit balance of no more than $250,000 by the Sunset Date, because the wife expected to be able to service a mortgage debt of that size;
(c)The husband agreed to be responsible for private school fees, house expenses, an entertainment budget for the wife of $16,240 per annum, his own entertainment budget, extracurricular lessons for the children;
(d)The husband also agreed to buy the wife a new computer; and provide $50,000 “to cover costs associated with launching [the wife’s] […] career” $25,000 was to come from the sale proceeds of 1 and 2 W Street, and the balance on the earlier of the receipt of the proceeds of sale of the Country D apartment or 2019; and
(e)The management of various bank accounts.
Also in June 2017 the husband obtained new employment as a contracted consultant. His salary was $100,000, materially less than what he had earned in the past.
In 2018 the husband’s parents’ Country D company known as N Company sold a property it owned in Region P. As explained below, the husband holds shares in this company and has done so since 1998. He received EUR61,170 as a share of the proceeds of sale. In early 2018 the husband transferred $92,879, being the Australian dollar equivalent of EUR61,170. This amount was deposited into CBA joint account #...42. From that account the husband transferred $70,000 into the mortgage account #...00.
In June 2018, the wife transferred $140,000 from the CBA offset account, $145,000 from line of credit #...72, and $50,000 from line of credit #...94, a total of $315,000 into a CBA account #...05 held in her sole name.
In June 2018 the husband opened Westpac accounts in his sole name.
By reason of the sale of the Suburb V apartments, his redundancy and vested shares from his former employer, the husband accrued a substantial taxation liability in the financial year ended June 2017 of about $121,859. He entered into a payment plan with the Australian Taxation Office to discharge this liability, which required the first payment of $20,000 to be made in June 2018. The husband was unable to pay his tax liability in full because the wife had removed the $315,000 referred to in [24] above.
In July 2018, the husband received a further $46,353 from his father’s estate. These funds were placed into his Westpac account #...38, and he applied about $10,000 of this money to furnishing his separate accommodation and the balance to meet his taxation liabilities mentioned above.
The wife began undertaking casual work in October 2018. She earned $12,076 in the June 2019 financial year. She continued to earn money from this source. Her gross earnings for the financial years:
(1)1 July 2019 until 31 June 2020 were $24,092;
(2)1 July 2020 until 31 June 2021 were $23,742; and
(3)1 July 2021 until 31 June 2022 were $15,476.
The husband’s contract work was followed in 2019 by management positions with F Company providing financial advice to clients on capital raising on a taxable income of $230,000 per annum, which increased to $240,000 in late 2019. He remained in this position until 2021.
In 2020 the wife received an inheritance of $91,281. The inheritance was applied to Y’s school fees, the wife’s credit card debt and legal fees associated with an appeal in the Family Court of Australia (as it was then known).
In 2021, the husband commenced working at G Company in a management role on $280,000. He received a sign on bonus of $30,000. In 2022, his salary increased to $290,000, with a bonus of $30,000.
The final hearing commenced on 13 April 2023 for three days.
EXPERT EVIDENCE
Mr Z was jointly appointed by the parties to undertake a valuation of Q Property and the property situated and identified as Suburb AA at BB Street. Mr Z prepared a report in Country D language dated 29 March 2023. The Country D language and English versions of the report were marked Exhibit F.
COMPETING PROPOSALS
I summarised the parties’ competing proposals at the start of these reasons. The husband’s final proposed minute of order is detailed in Annexure “A”, set out at the conclusion of this judgment.
The wife sought orders as set out in Annexure “B”. At the conclusion of the hearing the wife altered her position and sought the transfer of the Suburb K property into her name with its existing mortgage, a payment from the husband of $270,000 and orders for adult child maintenance in the sum of $5119 until 2028. The wife proposed that the parties’ assets and liabilities otherwise fall as they currently lie. In the event the Court was not minded to order the payment of $270,000 the wife foreshadowed that she would seek orders for higher maintenance so that she might service the mortgage on the Suburb K property.
THE LAW
Part VIII of the Act sets out the legislative provisions relating to property orders that may be sought when parties are or were married. The central provision is s 79 of the Act, which gives the court power to make such orders for alteration of property interests as it considers appropriate.
Section 79(2) of the Act provides that:
The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Section 79(4) of the Act set outs the factors to be taken into account in considering what order, if any, should be made. These will be discussed in detail below.
Section 80 of the Act grants specific powers to make a range of different orders to adjust property interests.
Section 81 of the Act is also relevant, although the Full Court has held it is neither a “head of power” nor an absolute requirement; it reflects a policy of making orders which finally determine the financial relationship between the parties and avoid further proceedings, but this is only to be taken “as far as (is) practicable” (Crapp and Crapp (1979) FLC 90-615).
APPROACH TO BE TAKEN
In property proceedings under the Act, parties generally rely upon the “four step process” set forth in Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 in the determination of an application under s 79 summarised as follows:
(1)Identify and value, the parties' property, liabilities and financial resources at the date of the hearing;
(2)Identify and assess the contributions of the parties as referred to in s 79 of the Act and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties, whether examined on a global approach or an asset by asset approach;
(3)Identify and assess the other factors relevant including, the matters referred to in s 75 of the Act and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
(4)Consider the effect of the above and resolve what order is just and equitable in all the circumstances of the case.
In Stanford & Stanford (2012) 247 CLR 108 (“Stanford”), the High Court made clear at [37] it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. The Full Court in Bevan & Bevan (2013) FLC 93-545 (“Bevan”) at [72]–[73] has held that the decision in Stanford has not overruled the four step approach.
Stanford also made clear that the question of whether it is just and equitable to make an order “is not to be answered by assuming that the parties’ rights or interests in marital property are or should be different from those that then exist” (at [39]). In other words, at the time when the discretion may be exercised; and the requirement pursuant to s 79(2) that it would be “just and equitable” to make orders altering property interests should not be conflated with the requirements of s 79(4) of the Act (Stanford at [40]). The Full Court in Bevan at [73] emphasised that:
(a)although the pre-condition to making any order for property adjustment is a finding that it is just and equitable to do so in accordance with s 79(2) of the Act, this does not form a threshold issue, nor must the requirements of s 79 be followed in a particular order; and
(b)a determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4) and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.
The High Court has held that the very fact of separation may lead to the ready satisfaction of just and equitable requirement (Stanford at [41]–[42]). Here, the parties accept it would be just and equitable to make some form of adjustment. The court must also be satisfied that its proposed final orders are themselves just and equitable. I will return to this question later in these reasons.
I will therefore approach the determination of this matter by first identifying the assets and liabilities of the parties, then by dealing with s 79(4) factors, including s 75(2).
ASSETS, LIABILITIES AND FINANCIAL RESOURCES AT THE DATE OF THE HEARING
A balance sheet was tendered by the husband, which became Exhibit H. Although it was not a joint agreed position, the entries reflected the values that had been conceded throughout the hearing, with the key difference being that the husband contended there should be a separate pool in respect of his property interests held in Country D, which I deal with below. In relation to disputed items, I express my conclusions as follows, noting the reference to item numbers is a reference to the item number on Exhibit H.
Item 6 was a bank account held by the husband in Country D, ending in #...01. The values provided by the parties were not vastly different, and in the absence of any evidence to resolve the difference, I will adopt the value provided by the husband, as it is his asset.
Items 10–12 were three bank accounts held by M Pty Ltd. It was not clear why these items were on the balance sheet at all. Although the values were agreed, two bank accounts were said to have a nil balance, whilst the remaining one held $54. I will exclude these items for being de minimis. I will also exclude Items 8 and 18 for the same reason.
Item 14B was an ANZ Bank account held in the name of the wife, trading as CC Company. She asserted a nil balance, whilst the husband did not provide a suggested value. No submissions were made by the husband about what the value should be. I will exclude this item.
Items 26 is unpaid taxation liability of the husband from previous years of $3,535. I will include this liability.
Items 27, 28 and 34 are credit card debts currently owed by the parties. I will assume they relate to reasonable living expenses in the recent past. When making submissions about Item 36, the wife submitted her expenses were for her and the children, and referred to her financial statement. Item 34 appears to be in the same category. I am not persuaded to include Items 27, 28 and 34 on the balance sheet.
The wife asserted in submissions that her figure for Item 30, being a joint line of credit ending #...72, should be accepted. The husband did not object. I will adopt the wife’s figure of $143,493.68. In relation to Item 31, another line of credit ending #...94, the husband agreed with the wife’s submission that the figure should be $52,599.61. I will round up each figure.
Item 35 was said to be a loan from the husband’s mother. He submitted that he had borrowed a total of $166,405 (Exhibit C) which was used mainly for legal fees and experts’ fees. The husband argued that, in accordance with well-established authority the liability should ultimately be excluded and this should apply to the wife’s loan claimed to be owing to her mother as Item 36. The husband pointed out that the wife’s costs notice was deficient in that it did not give sufficient particularity about the source of payment of her legal fees. A further problem with including Item 36 is that the wife conceded there was no evidence from her mother establishing the amount owing. I will exclude Items 35 and 36.
The wife sought to include Item 38 as a joint liability of $31,463 being the balance of $54,404 to be paid for the youngest child’s private school fees to the end of 2023. The husband argued, and there was no dispute, that he is subject to an Administrative Appeals Tribunal (“AAT”) order to pay $2,549 per month or $22,941 per annum in this regard. However, I will include $31,463 as a joint liability since there appeared to be no dispute that the parents were jointly liable to the school for the fees.
Item 41 is the wife’s superannuation entitlements held with Superannuation Fund 2. Why the parties were unable to resolve the difference, being $58,199.77 as opposed to $58,200, is inexplicable. I will adopt the husband’s value as a rounded figure ($58,200).
Country D properties
The husband’s evidence about his property interests in Country Ds was as follows.
In 1998 the husband received a 15 per cent interest being 143 shares and 46 “bare ownership” shares out of a total of 1,202 shares in his parent's Country D company known as N Company. This company owns properties in Region P which the husband’s family use as holiday homes. The husband claimed the shares in N Company are subject to a condition, by which he meant a legal concept known to Country D law whereby the bare legal owner has no entitlement to any income derived from the shares. In 2000, N Company acquired a further apartment at 2 DD Street for EUR137,204. His parents provided the funds for purchase. In 2020, N Company acquired a carpark at 2 DD Street.
Between 2017 and 2018 the husband’s parents made property adjustment agreements between themselves pursuant to Country D law, the effect of which was to enable whoever survived the other to enjoy a privileged allocation from the deceased partner’s estate. The husband’s father died in 2018, and was survived by his mother. After his father’s death, as a result of the arrangements made by his parents, the husband received further shares in N Company which increased his interest to 22.4 per cent, held with his mother and two sisters. The husband claimed this continued to be a “bare” interest subject to the condition.
The agreed value of the husband’s shareholding in N Company is $319,458.
The husband also received a minority interest in fields at Town EE and Town FF in Region P also as bare owner subject to a condition. The interest in the Town EE fields is valued at $15,385, while the interest in Town FF is valued at $10,962.
In 2007, the husband was gifted from his parents an interest in an apartment in a residential complex known as Q Property in Suburb AA. The apartment came with a carpark and storage. The husband claimed this was a “50% bare ownership interest (subject to a [condition])” which was given a value of EUR54,000 in the relevant Country D legal instrument bestowing the half ownership on him (Husband’s affidavit filed 31 March 2023, paragraph 80). Consequently he claims he has no entitlement to any income derived from the property, while as a bare owner he is subject to liability for imposts upon the property. The apartment has been rented since 2007 but since the husband’s mother enjoys the legal condition, she receives all income to supplement her pension. The husband claimed he has never received any income or contributed to the apartment. The evidence from the husband was supported by a Country D certificate of ownership (Husband’s affidavit filed 31 March 2023, annexure MF23). The agreed value of the husband’s 50 per cent share in the apartment is $216,154.
Therefore, the total agreed value of the husband’s Country D property interests is $561,612.
The husband contended that the Court should adopt a two pool approach to the balance sheet, placing the Country D property interests into a separate pool because of the special restrictions in the form of the bare ownership. Furthermore, in circumstances where the husband is a minority shareholder in N Company, it was suggested that the proper approach would be to treat the company and the properties as a financial resource of the husband.
The wife argued that the husband had failed to disclose adequately his property interests in Country D. Accordingly, she contended that, although she agreed with the values of the disclosed property interests, the Court could have no confidence that those included in the balance sheet represented the entirety of the husband’s property interests in Country D. In support of the submission the wife contended that husband’s failure in disclosure is evidenced by “the delay in disclosure and the reluctance to be transparent and provide information which would narrow down the properties” (Transcript 17 April 2023, p.29 lines 27–29).
There was no dispute that expert valuers had been engaged to undertake a property search and identify all property held by the husband in Country D. However, the wife was not satisfied with the reports produced. When asked if she took any steps to cure the deficiencies she replied she undertook some title searches herself on a Country D website with limited success (Transcript 17 April 2023, p.31 lines 12–15). The wife argued that the Court could have no certainty as to the husband’s property interests in Country D, which was a direct consequence of his failure to comply with his obligations for disclosure. Accordingly, she contended, she should receive a larger share of the Australian property.
If there is persuasive evidence supporting a reasonably plausible conclusion of the existence of other undisclosed assets, it may be open to the Court to make a finding that such assets exist, or take account of the likely existence of other assets under s 79(4)(e) and s 75(2)(o) of the Act (HDM & MM [2006] FamCA 47 at [27]; Gould & Gould (2007) FLC 93-333 at [27]). Thus, the Court may be persuaded that it would be appropriate to make an order beyond the ascertained property, provided that any order made on this basis can be seen to achieve substantial justice relative to the subject non-disclosure (Hicks & Trustee of the Bankrupt Estate of Hicks (2021) FLC 94-006 at [87]), or all known assets should be awarded to the innocent party, on the basis that the party who refuses to disclose the assets is in fact hiding them (Chang v Su (2002) FLC 93-117 at [60]). But there must be evidence to support the necessary inferences.
I found the wife’s evidence with respect to the purported existence additional Country D properties to be confusing and unpersuasive. The inferences she sought to draw from the tender of expert’s reports (Exhibits F and G) were not compelling or easy to follow. The wife has chosen to represent herself and frankly agreed that she had taken no step in the four years since these proceedings were commenced to engage any investigations in Country D to substantiate her assertions about undisclosed property. The husband gave extensive disclosure about his property interests in Country D. I am not satisfied that the wife has established any inadequacy in disclosure which leads to the conclusion the husband has undisclosed or hidden assets in Country D.
In my view, the Country D property interests should be included on the balance sheet. The parties’ relationship lasted for at least fifteen, if not twenty, years. The evidence shows a practical union of lives and property. I accept that the evidence shows the wife made no contribution to the Country D property interests, but neither did the husband according to his evidence. He received at least part of his Country D interests by way of inheritance, but this of itself is not a sufficient reason to treat them separately (see Dickons & Dickons (2012) 50 Fam LR 244 (“Dickons & Dickons”), below at [74]). As explained above at [23], an amount of $92,879 was received by the husband in 2018 from the sale of Country D property, and this was used for the joint purposes of the parties to the marriage. So the Country D property interests were not kept entirely separate up to the date of trial. They are unarguably property of the husband and have agreed values. I accept however that their current values reflect the constraints created by the affectation of the legal condition, which denies to the husband access to income, and their co-ownership with members of the husband’s family, all of which mean the value cannot be easily realised in an open market. I see no particular benefit or prejudice to either party by including the Country D assets in the overall pool rather than excluding them and treating them as financial resource of the husband. If the latter course was taken it would affect the question of adjustment in the wife’s favour under s 79(4)(e). Ultimately, the same broad position is reached, but including the Country D assets in the overall property pool is simpler.
Conclusions and asset pool
Based on these conclusions, the asset pool is as follows:
Ownership
Description
Agreed value
ASSETS
1.
Joint
Suburb K (50 per cent wife/ 50 per cent husband)
$3,400,000
2.
Husband
Motor Vehicle 1
$16,500
3.
Husband
Shares in M Pty Ltd
$1,000
4.
Husband
L Bank #...06
$1,763
5.
Husband
L Bank #...01
$1,672
6.
Husband
Westpac #...28
$7,175
7.
Husband
Westpac #...38
$3,568
8.
Husband
Household contents
$5,000
9.
Husband
Rental bond
$4,000
10.
Husband
Country D property
$562,959
11.
Wife
ANZ #...78
$273
12.
Wife
ANZ #...76
$200
13.
Wife
ANZ #...22
$1,090
14.
Wife
Household contents
$5,000
Total
$4,010,200
LIABILITIES
20.
Joint
Mortgage Suburb K (jointly and severally liable)
$733,618
21.
Joint
Line of credit #...72 (50 per cent wife and 50 per cent husband)
$143,494
22.
Joint
Line of credit #...94 ( 50 per cent wife and 50 per cent husband)
$52,600
22.
Joint
CBA #...42 (50 per cent wife and 50 per cent husband)
$1,311
23.
Joint
School fees (50 per cent wife and 50 per cent husband)
$31,463
24.
Husband
Unpaid tax from prior years
$3,535
24.
Wife
HELP debt
$30,170
Total
$996,191
SUPERANNUATION
Member
Name of Fund
Type of Interest
Agreed value
25.
Wife
Superannuation Fund 2
$58,200
26.
Husband
Superannuation Fund 1
$538,264
27.
Husband
Superannuation Fund 2
$74,852
Total
$671,316
NET POOL (INCLUDING SUPERANNUATION):
$3,685,325
Consequently, if there was no property adjustment, with the percentages rounded, the husband would hold 66 per cent and wife hold 34 per cent of the total net assets. As noted, both parties agreed it was not appropriate to leave the assets and liabilities undisturbed.
I turn now to consider the application of Pt VIII of the Act and the factors set forth in s 79 and s 75(2).
CONTRIBUTIONS
I will deal first with s 79 of the Act. Section 79(4) sets out the considerations to be taken into account by the Court in determining what order (if any) should be made under s 79 in property settlement proceedings.
There was no dispute that I should take a global approach to the asset pool (Norbis v Norbis (1986) 161 CLR 513). In accordance with s 79(4) of the Act, the Court must consider all the contributions, both financial and non-financial, to the acquisition, conservation, and improvement of the parties’ assets, as well as to the welfare of the family during cohabitation and after separation, in a broad overall sense, eschewing precise mathematical calculations (Norman & Norman [2010] FamCAFC 66; Kowalski and Kowalski (1993) FLC 92-342; G and G (2000) FLC 93-043; Burke and Burke (1981) FLC 91-055), although an evaluation of each party’s respective contributions is necessary (JEL and DDF (2001) FLC 93-075). Assumptions about equality of contributions should not be made, and there is no assumption that equal division is the starting point for any exercise of the Court’s discretion (Mallet v Mallet (1984) 156 CLR 605 at 610, 613, 625, 635–6 and 646–7).
In Dickons & Dickons, the Full Court explained the approach to contributions as follows:
17.…it is self-evident that financial contributions (whether direct or indirect) can be made to a relationship that have an effect on the property of the parties without those financial contributions finding their way directly into, or being directly linked to, specific property or, indeed, directly to the totality of the property available for distribution at the time of trial. Financial contributions can be made to the “...acquisition, conservation or improvement...” of property “...directly or indirectly...” (s 79(4)(a). Emphasis added). A financial contribution can be made indirectly by, for example, the use by parties of income or assets for purpose A freeing up the use of other income or assets for purpose B. Moreover, a particular financial contribution might have been used wholly in discretionary expenditure which, but for that contribution, would not have been available to the parties or would have required borrowings or a diminution of capital. Such a contribution can also, in that way, be seen, for example, as an indirect contribution to the conservation of property. Indeed, the principles discussed for example in In the Marriage of Kowaliw [1981] FamCA 70; (1981) FLC 91-092 and In the Marriage of Townsend [1994] FamCA 144; (1995) FLC 92-569, can be seen as an exception to that general proposition.
18. Any and all such contributions, whether or not they sound in, or are directly linked to, the property available for distribution, should be considered and assessed together with the nature, form and extent of all other contributions of all types contemplated otherwise by s 79(4).
19. That is true of assets or income generated within the relationship and it is equally true of assets or income coming from outside of the relationship (for example, as here, in the form of inheritances). In the same way, s 79(4) specifically requires the Court to take into account contributions made to the welfare of the family (and substantively and “...not in any merely token way...”; see, Mallett v Mallett [1984] HCA 21; (1984) 156 CLR 605 at 636 per Wilson J) notwithstanding that those contributions may not be, or cannot be seen to be, directly linked to the available property at trial, or any increase or decrease in the value of the property.
20. Put another way, consistent with authority, the s 79 discretion involves as a necessary requirement that “... trial Judges weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such an assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment.” (In the Marriage of Aleksovski [1996] FamCA 111; (1996) FLC 92-705 at 83,437). In Aleksovski, Kay J outlined the well-known “gold bar” analogy and said “[w]hat is important is to somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship” (at 83,443).
21. Those same principles can be expressed as saying that the requirements of the section are met by approaching the assessment of contributions holistically and by analysing the nature, form, characteristics and origin of the property currently comprising that to which s 79 applies, and, in turn, analysing the nature, form and extent of the contributions (of all types) contemplated by s 79. That task is also undertaken by reference to the nature and form of the particular marriage partnership manifested by the particular circumstances of this particular marriage. Is it, for example, a relationship, as Deane J put it in Mallett at 640-641 “...where the parties have adopted the attitude that their marriage constituted a practical union of both lives and property...” or is it, for example, a union where parties lived very separate domestic and financial lives?
The holistic approach has been endorsed many times in subsequent Full Court decisions (Jabour & Jabour (2019) FLC 93-898 at [31]–[87] (“Jabour”); Horrigan & Horrigan [2020] FamCAFC 25 at [35]–[49]; Barnell & Barnell (2020) FLC 93-961 at [30]–[43] (“Barnell”); Benson & Drury (2020) FLC 93-998 at [35]).
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage
Initial contributions
At the time of the commencement of the relationship, neither party had assets of significance.
Financial contributions during the relationship
It was common ground that the husband made the vast majority of financial contributions during the relationship. The wife conceded that from 1998 to her asserted date of separation in 2017, the husband “paid all family expenses from his income and from family resources in [Country D]” (Wife’s affidavit filed 31 March 2023, paragraph 19).
In addition to the contributions already noted above under the Background section of these reasons, I take account of the following.
From the commencement of the relationship until 1998, the wife was employed earning a salary of around $81,000. The evidence indicated that she applied her income towards the parties’ living expenses. The wife ceased working at this point until 2018.
The husband was employed at all times during the relationship in the financial services industry, save for a twelve month period commencing in mid-2016. At this point, he was earning a salary of approximately $335,000 per annum. Upon being made redundant, the husband received a payment of $182,861. The wife did not dispute that between 1998 and 2018 the husband made all financial contributions, including using his income to service the mortgages secured against Suburb K and 1 and 2 W Street.
Following the parties’ marriage, the husband’s parents also made significant contributions to assist the parties. The husband set out a series of payments said to have been made by his parents, totalling at least $700,000 (Husband’s affidavit filed 31 March 2023, paragraph 80). The husband was also gifted a 50 per cent bare ownership interest, subject to a condition, in an apartment in Country D (“the Country D Apartment”), which was valued at EUR54,000.
In 1998, the husband also received an interest (of 143 shares and 46 bare ownership shares out of a total of 1,202 shares) in his parent’s company in Country D, known as N Company. The interest is also subject to a condition, with the husband’s mother retaining any income. N Company holds two apartments in Region P, Country D, which are used as family holiday homes. N Company is discussed further below.
As noted, the husband contributed a total of $285,000 in cash to the purchase of Suburb K, which included a gift of $185,000.
The wife disputed that the $185,000 was a gift from the husband’s parents. The wife’s submissions on this issue were somewhat confusing. She appears to concede that the husband’s parents did make a gift of some money to the husband, however, not in the amount of $185,000. The wife tendered handwritten notes which she claimed were contemporaneous records prepared by her of the parties’ financial transactions in the years 2000 and 2001 (Wife’s affidavit filed 31 March 2023, annexure 6). These refer to an amount of $185,000 against a date “3.4” which the wife claims meant “3 April 2001” accompanied by the notation “t’fer to P A/C”. She argued that the $185,000, which was transferred from an overseas account, was most likely comprised of the husband’s savings or the sale of his shares in a Country D company. There was no evidence that the amount of $185,000 was related to the sale of shares in a Country D company, but the husband tendered a bank statement that showed the $185,000 was received into #...16 on 4 April 2001 received from overseas, and recalled it came from Country D. The wife agreed that her own evidence showed that by 1 October 2000 $183,535.56 had been saved from the earnings of the husband, and the amount of $185,000 was entirely separate. She could not satisfactorily explain why the amount of $185,000 should be considered savings from the husband’s earnings, when she had recorded an entirely separate amount on her own document for savings, namely, $183,535.56.
The thrust of the wife’s argument here appeared to be that if the funds came from the husband personally, they should be treated as an equal contribution of both parties due to the wife’s homemaker contribution.
I prefer the husband’s evidence in this regard and find the amount of $185,000 was a gift from his parents. I find that this gift should be treated a contribution by the husband. I accept the mortgage of $380,000 which was used to acquire Suburb K was a contribution by both parties. Similarly, the total borrowings for the renovations to Suburb K were joint contributions.
The wife accepted that the husband had received other financial gifts from the parents as contended by the husband. He claimed in his evidence that he received the following additional gifts from his parents which were used by him to reduce the mortgage secured against Suburb K:
(1)$182,276 received on 8 February 2007 into the parties joint Westpac account #...16 then paid towards the Suburb K mortgage; and
(2)$201,209.51 received on 7 November 2012 and deposited into the parties joint CBA account #...42, and then $190,000 was transferred into the CBA mortgage account #...00.
(Husband’s affidavit filed 31 March 2023, paragraph 80)
The wife contested the assertion that the $182,276 was received from the husband’s parents and used to reduce the mortgage secured against Suburb K. She tendered a letter from Westpac dated 13 February 2007 showing that on 8 February 2007 the parties drew down a Westpac Home Loan account #...10 from which the $182,276 was paid into #...16 (Wife’s Affidavit filed 31 March 2023, annexure 50). I accept this evidence is correct. The $182,276 was borrowed jointly by the parties.
The wife did not contest that the $201,209.51 was applied towards the mortgage of Suburb K.
During the marriage the husband received a number of property interests in Country D, which have been described already (See [58]–[62] above).
1 and 2 W Street were negatively geared during the relationship. The income received from the units was not sufficient to cover the expenses such as strata levies and interest payments. The husband applied funds available in two CBA lines of credit to fund shortfalls between the rent collected, and expenses such as strata levies and interest payable on the investment loans. The units were sold in 2017, with the net proceeds of sale totalling $621,021.45.
It was clear that to the wife the June 2017 agreement had great significance. According to her since that agreement anticipated that the husband’s Country D apartment would be sold for $461,000 it should have been unnecessary to sell the Suburb V apartments.
Financial contributions post-separation
Following separation, the wife has remained in Suburb K, with the husband moving out in August 2018. The wife contended that she has made greater contributions since separation. Since July 2019, she has exclusively serviced the mortgage over Suburb K. She presently works on a casual basis.
The wife gave evidence that she has withdrawn $20,000 from her superannuation to cover living expenses, as well as borrowing funds from family and friends. She received an inheritance of $91,280.63 in 2020 following the death of her aunt. These funds were applied to the payment of Y’s school fees, credit card debts, and a costs order following her unsuccessful appeal.
In December 2022, the wife sold her car in order to assist in discharging an outstanding debt for Y’s school fees.
After his redundancy, the husband commenced contract work in mid-2017 until 2018 on a significantly reduced salary of $100,000 per annum. In 2019, he obtained a position as a manager on a salary of $230,000. He changed jobs in 2021, and presently earns a salary of $290,000 per year. The husband has continued to make child support payments.
The wife argued that the husband’s parents’ contributions should be “ignored” or “cancelled out” by the period between mid-2016 until 2017, when the husband was not working following his redundancy.
The wife argued:
[WIFE]: … In terms of contributions up until separation I only have two other points. One is that those contributions – that the husband’s ability to not work during the year mid-2016 to 2017 was to a large extent because of the financial buffer we had. And part of that can be attributed to the contribution by the parents. So in that sense I say they cancel each other out.
HIS HONOUR: Sorry, can you explain that a bit more?
[WIFE] : We were in a very strong position in mid-2016 when the husband became redundant. He received a redundancy payment of, on his evidence, I think 180 or 190,000. I have the bank statements showing 144,000 was received into the account. But other than that, on – our expenses didn’t change during that financial year because we had savings to pay for all of those expenses for the remaining nineish months of the year. The husband wasn’t working. And until the husband sold assets one year later we lived on savings. And part of the reason those savings were so high can be, in general, referable to the fact that the husband received a contribution of 200,000 in – I can’t recall if it’s 2011 or 2012. But in the same way as your Honour is saying taking a global approach, we had that buffer partly because of the contribution of the husband’s parents.
HIS HONOUR: Yes. But this cancelling out argument. What’s that?
[WIFE]: That’s probably not the correct terminology. But what I’m saying is that the husband’s contributions aren’t additional because they have then been removed by the husband not working for a year. They’re – at the point of separation in 2017 they don’t appear in our agreement. Those funds don’t exist anymore.
HIS HONOUR: So are you saying I ignore that contribution through the husband’s parents because he chose not to work?
[WIFE]: Yes, your Honour, that’s the effect of it. That’s the reason he could not work or – sorry, one of the reasons is that we had built up enough money, enough savings to live off for that period.
(Transcript 17 April 2023, p.60 lines 5–37)
HIS HONOUR: Yes, but – no, I can’t understand why any of that matters unless you say there was an obligation on the husband to go out and get a job. Is that what you’re saying?
[WIFE]: Well, that is, in a sense, what I am saying. Because - - -
HIS HONOUR: Well, he said he tried and he couldn’t get it. Are you saying his failure should be held against him?
[WIFE]: Yes, your Honour. Because throughout this proceedings it has been made very clear that – by the husband that I haven’t done enough to earn income. When I have been [working] full time in a job that doesn’t pay very well. Whereas the husband didn’t even take a low paying job in circumstances where there were a lot of expenses and he had dependents.
HIS HONOUR: So he should have taken, what, any job that was offered so that your standard of living was maintained. Is that - - -
[WIFE]: Not necessarily. I mean, from my point of view, I – any job will do.
Obviously I’m not fussy myself about what job to do. That’s - - -
HIS HONOUR: So the husband shouldn’t be? Just trying to understand where you’re coming from, [Ms Fabron].
[WIFE]: I think the husband should have been less fussy, yes, your Honour.
(Transcript 17 April 2023, p.61 lines 23–47)
I do not accept this argument. It should be noted that the wife did not commence paid work until late 2018 and she did not advance any argument that during the husband’s redundancy she made a greater or indeed any financial contribution. I am not persuaded by the wife’s argument that the husband’s inability to find paid work for the year following his redundancy should in some way negate his parents’ gifts nor in some way lessens the husband’s overall financial contribution. I accept his evidence that he made reasonable efforts to obtain new employment after redundancy.
The wife then argued that her post separation contribution was greater because during the course of the marriage and following their separation, the husband has prioritised “lifestyle elements” including private school fees and holidays rather than amassing property (Transcript 17 April 2023, p.47 lines 5–15). As a result, so she argued, at the time of the final hearing the parties only own Suburb K, despite the husband earning a considerable income for most of his working life. She contends that her focus was on maintaining ownership of Suburb K, in the face of pressure by the husband to sell.
The wife gave evidence that after the husband left Suburb K he continued to service the mortgage and cover the expenses of the wife and children until June 2018. The wife tendered an email sent by the husband on 1 June 2018, in which he raised concerns that the parties’ cash flow was insufficient to meet their expenditure and indicated that he may need to redraw against Suburb K (Wife’s affidavit filed 31 March 2023, annexure 75). The husband proposed several alternate options the parties could take to reduce their expenditure. The wife conceded that after receiving the email from the husband she drew down $200,000 from Suburb K mortgage and other accounts and then used these funds to service the mortgage. The wife argued that in drawing down the funds from Suburb K she was able to “save” Suburb K by preventing the husband selling the property for less than market value.
The wife applied the funds drawn down to service the mortgage secured against Suburb K until July 2019, following which she made the mortgage payments for Suburb K from her income, loans from her mother and to a large extent from the child support she received from the husband.
When the wife was questioned whether it may have been prudent to sell the house given she was unable to service the mortgage other than by using money borrowed from joint facilities or financial assistance from others, she replied that she wanted to keep Suburb K and that she was unable to work out alternative housing options for herself and the children. She further argued that in light of the husband’s salary of approximately $230,000 it was her “view that [it] …wasn’t a reasonable stance to need to sell the property” and to do so would have been unfair in light of the June 2017 agreement (Transcript 17 April 2023, p.46 lines 32–34).
Ultimately the wife argued that as it was her efforts that ensured the parties retained Suburb K’s increase in value since June 2018, and this should be treated as a financial contribution on her part. I do not accept these arguments. It is obvious that by redrawing or drawing down borrowed funds, to service the mortgage and “save” Suburb K, the wife increased the parties’ liabilities. I take account of the fact that after July 2018 the wife used part of her income and borrowed funds from family to help service the mortgage. I treat these considerations as financial contributions by the wife. But it is settled that the capital gain in value of a piece of real estate as the result of market forces is in the nature of a windfall, for which neither party can take full credit, with the increase being a contribution by both parties (Hurst & Hurst (2018) FLC 93-851 at [26]; Whiton & Dagne (2019) FLC 93-923 at [34]; Jabour at [44]–[47] and [84]; Barnell at [41]–[42]).
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage
The parties both made arrangements for renovations to be undertaken on Suburb K.
The husband gave evidence that he oversaw the acquisition, financing, and management of 1 and 2 W Street. The wife accepted that the husband was mostly responsible for managing the two units, however she successfully defended an application in the NSW Land and Environment Court.
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent
It was not disputed that the wife undertook the majority of the care of the children whilst the husband was at work. However, the parties were in dispute as to the extent of the husband’s role in parenting the children immediately following their births, as well as continuing through their schooling years up to separation.
The husband’s evidence was that he assisted with getting the children ready for school, and managed drop offs and pickups from school and extracurricular activities. He also contended that he was responsible for cleaning the home, including doing the washing up, and preparing meals. It was his case that prior to 2006, work commitments meant that he was unable to make significant contributions to the family, however this changed in 2006 upon moving jobs.
The wife returned to university in 2012 to complete a postgraduate qualification. During this time, the husband asserted that she would often study late hours, leaving him responsible for getting the children ready for school, as well as organising pickups on occasion.
The wife contended that she was in charge of all household and garden chores, as well as cleaning, laundry, grocery shopping, and cooking, except when on occasion she would request the husband’s assistance. She argued that his work commitments meant that he was not significantly involved in the children’s schooling or lives. The wife continues to care for all three children, who reside with her and are studying.
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
None of the proposed orders will have any effect on the earning capacity of either party.
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
This is discussed further below.
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
This factor is not relevant.
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Since October 2018, despite some degree of disputation, the husband has paid child support pursuant to administrative assessments, after an AAT determination.
ASSESSMENT OF CONTRIBUTIONS
The wife argued that the husband almost exclusively made the direct financial contributions, whilst she was almost exclusively responsible for parenting the children and as homemaker. The husband argued that he made by far the greater financial contributions and contributions should be assessed at 60 per cent in his favour. I accept this argument. I do not diminish or discount the substantial contribution of the wife as homemaker and parent, but in my view contributions overall should assessed as 60 per cent in the husband’s favour.
In reaching this conclusion I have considered the wife’s argument that if the Suburb V apartments had not been sold by the husband in 2017 they would have increased in value. She claimed his decision to sell at that point in time has resulted in the parties losing significant capital gain, when according to the June 2017 agreement those apartments should have been retained. In this connection she also argued that according to the June 2017 agreement, the sale of the Country D apartment should have realised $464,000 whereas only about $92,879 was received by the husband from this sale. I do not accept these arguments.
Murphy J pointed out in Watson & Ling (2013) FLC 93-527 at [33], the Court has “long eschewed the notion of ‘negative contributions’”, in a passage cited with approval in Keskin and Keskin (2019) FLC 93–932 at [39]. In the same passage Murphy J went on to say:
33.… Nevertheless, it might be argued that the “non-dissipating party” can be seen to have made a disproportionally greater indirect contribution to the existing legal and equitable interests (for example to their preservation) if it is established that, but for the other party’s unilateral dissipation, those existing legal and equitable interests would have been greater or had a greater value.
In my view, in no relevant sense has the wife shown the husband unilaterally dissipated assets by selling the Suburb V apartments. The evidence was clear that in 2017 the parties, and particularly the husband, who was in 2017 solely responsible for financial contributions, were financially stressed because the husband had lost his employment. The sale of the Suburb V apartments was reasonable and rational in the circumstances. But in any event, as mentioned above at [104], any capital gain would have been treated according to settled principles as an equal contribution by the parties. The fact that the Country D property failed to realise as much as expected was a result of market forces and the attitude of the other members of the husband’s family over which he had no control.
I now turn to s 79(4)(e) of the Act.
SECTION 75(2) ADJUSTMENT
The Act requires me to take into account the matters referred to in s 75(2), so far as they are relevant, when considering what orders should be made in these proceedings. As disclosed in the arguments of the parties, the following matters are relevant.
(a) the age and state of health of each of the parties
The wife is presently aged 57 and describes herself as being in “reasonably good health”. The husband is aged 52 and did not point to any health issues.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
I have set out the assets of the parties already. Both have a capacity for appropriate gainful employment, although the husband clearly has a far greater earning capacity.
The husband remains employed on a salary of $290,000 per year.
The wife gave evidence that she commenced working on a casual basis in 2018. During 2020, she applied for a number of professional positions, but was unsuccessful. She has subsequently trained to become a professional and has completed two consultations, receiving $3,700 for each.
The husband did, however, refer to some evidence that the wife may have performed work for GG Company and HH Company. This appeared to be on a contract basis, however limited disclosure was provided concerning this work.
As noted already, the husband has superannuation of $671,316.45 but will not be able to access this for a number of years. The wife has modest superannuation.
(d) commitments of each of the parties that are necessary to enable the party to support
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain;
(e) the responsibilities of either party to support any other person; and
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation
The parties’ three children continue to reside with the wife. Two of the children have reached majority, aged 19 and 22, whilst the remaining child is aged 17. This child is due to turn 18 in 2023. All three children continue to study. I accept that day to day living expenses for these children will fall primarily on the wife. The likelihood is that Y will continue to live with the mother while he undertakes any tertiary study.
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable
Apart from the wife’s assertions that her standard of living is significantly below that of the husband’s, I am not satisfied that there is any evidence to justify such a conclusion. She has continued to live in Suburb K since separation until the final hearing.
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income
The wife also referred to s 75(2)(h) in relation to an outstanding HECS debt for fees for her training as a professional. This is already listed as a liability on the joint balance sheet, so I will not take into account a second time here.
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
The marriage was long on any view of the evidence, and I accept it affected the earning capacity of the wife.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken in to account
The evidence about the Country D properties leads to the ready inference that once the constraints caused by the legal conditions and ability to realise, identified above at [61], are removed, the values may increase and the husband may begin to receive income or be able to sell his interests, although it is not possible to know either when the constraints may be removed, what actual impact this will have on values or what level of income may come into the husband’s hands. It is nonetheless appropriate to take account of these potentialities under s 75(2)(o) of the Act.
The husband also submitted that a number of adjustments should be made. Pursuant to earlier orders, the husband paid the costs of three valuations at first instance. He contended that there should be a reimbursement by the wife of 50 per cent of the total cost of these valuations, being $3,800. I accept the wife is liable for these amounts but I do not see the need for any specific adjustment for them. I take them into account in assessing the adjustment for s 75(2) factors overall.
The wife also has an outstanding costs order against her in the Full Court dated 9 November 2020 in the sum of $5,243.40. The husband contended that this amount should also be deducted from any payment due to the wife. I agree this is a court order should be specifically complied with by the husband receiving from the wife’s share of the assets $5,243.40.
The June 2017 agreement should be further mentioned here. The existence of the agreement is a matter to be taken into account. Recently, in Spalla & Spalla (2023) FLC 94-145 Chistie J, sitting as the Full Court, referred to Woodcock v Woodcock (1997) FLC 92-739 and Bevan and explained at [31]:
(a) It is only possible to oust the jurisdiction of the Court by final order or a qualifying financial agreement (and previously by approved maintenance agreement);
(b) An agreement other than a financial agreement will be relevant as evidence of what the parties intended and of the financial arrangements in place at the time and subsequently;
(c)In that sense any agreement is relevant but not in and of itself determinative.
I have taken account of the June 2017 agreement as disclosing a range of intentions and assumptions about the division of the parties’ assets between June 2017 and December 2023. It gives an insight into what the parties themselves viewed as a just and equitable outcome in June 2017 and is one matter which the Court may take into account in forming its own conclusion about a just and equitable outcome. However, it does not bind the Court in any sense and circumstances have changed. On any view, the agreement according to its own terms will soon come to an end by effluxion of time. The Court must reach its own view about the appropriate assessment of contributions and any adjustment pursuant to s 79(4)(e), as well as making a separate determination of what is a just and equitable outcome at the date of trial. The exercise of discretion is not fettered by the June 2017 agreement.
Conclusion
The husband argued that there should be no further adjustment on account of s 75(2) factors. The wife was not very clear about what percentage adjustment should be made for her future needs.
In my view, there should be an adjustment in the wife’s favour taking account of s 75(2) factors of four per cent. The husband is younger by some years, clearly has a greater earning capacity, and great future financial resources likely to accrue to him from his superannuation entitlement, and his interests in Country D.
Accordingly, the assets should be divided 56 per cent in the husband’s favour and 44 per cent in the wife’s favour.
This outcome can be achieved by the sale of Suburb K, with the parties to receive sufficient funds from the net proceeds of sale, after discharge of secured facilities and sale costs, to give each their entitlement, with the other assets and liabilities, including superannuation remaining undisturbed. The ultimate sale price of Suburb K cannot be known at present. So, the appropriate way to ensure each party receives their entitlement is to take the present agreed total value of the net assets excluding Suburb K, but including superannuation, the husband’s Country D property interests and the other assets of the parties, which is $1,215,303. The husband holds about 98.4 per cent of these assets, and wife holds 1.6 per cent, with a net value of $18,862. On an overall division of 56/44 per cent the wife requires a payment of $515,872, being 44 per cent of $1,215,303 less $18,862. I will order the wife to receive 44 percent of the net proceeds of sale of Suburb K together with a payment of $515,872 from the husband’s share of the net proceeds of sale, less the amount of $5,243.40 to satisfy the order for costs made on 9 November 2020.
In my view there is no alternative to the sale of Suburb K. There is no just and equitable outcome which would enable the wife to retain Suburb K, and service the necessary mortgage, according to her own evidence of her earning capacity. I have taken account of the fact that Y is finishing Year 12 so the sale should take place within 90 days of the Court’s orders.
WHETHER THE PROPOSED ORDERS ARE JUST AND EQUITABLE
Section 79(2) of the Act provides that:
The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Although the parties agree that it would be just and equitable to make an order adjusting their property interests, s 79(2) requires the Court to be satisfied itself that its proposed orders are just and equitable, after standing back from its preliminary assessment (Manolis & Manolis (No 2) [2011] FamCAFC 105 at [65]–[66]).
The High Court in Stanford commented at [36] on the meaning of “just and equitable” as follows:
The expression "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.
(footnotes omitted)
I also take account of the caution expressed in Stanford at [40] that to conclude that making an order is “just and equitable” only “because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act”.
The husband proposed an order splitting his superannuation. However in view of the wife’s age, and lower earning capacity, I am satisfied that it is just and equitable for her to receive her overall entitlement in a form that she can access immediately upon compliance with the Court’s orders.
In my view, the proposed outcome is just and equitable in the circumstances of this case.
Since the precise outcome of the sale of Suburb K cannot be known I do not see any point in setting out the table of likely assets and liabilities on a notional basis. I consider the explanation of the outcome given above to be sufficient for the purposes of the parties.
ADULT CHILD MAINTENANCE
As noted earlier, the wife sought as part of her relief adult child maintenance for Y in the sum of $5,119.92 per month for the period 1 January 2024 until 31 December 2027 or 2028. She invokes the Court’s discretion in s 66L of the Act for this purpose, which is in the following terms:
(1)A court must not make a child maintenance order in relation to a child who is 18 or over unless the court is satisfied that the provision of the maintenance is necessary:
(a) to enable the child to complete his or her education; or
(b) because of a mental or physical disability of the child.
The court may make such a child maintenance order, in relation to a child who is 17, to take effect when or after the child turns 18.
(2)A court must not make a child maintenance order in relation to a child that extends beyond the day on which the child will turn 18 unless the court is satisfied that the provision of the maintenance beyond that day is necessary:
(a) to enable the child to complete his or her education; or
(b) because of a mental or physical disability of the child.
(3) A child maintenance order in relation to a child stops being in force when the child turns 18 unless the order is expressed to continue in force after then.
There was no submission that Y suffered from any mental or physical disability. The wife relies upon s 66L(2)(a) and must establish, therefore, the order she seeks is “necessary” to enable Y to complete his education, after school, because, as noted earlier, he is in Year 12 and will turn 18 in 2023.
Section 66K expands upon the concept of “necessary” by specifying matters which the Court must take into account. I have taken them all into account. They include however the income, earning capacity, property and financial resources of the parent or each parent, the commitments of the parents necessary to enable them to support (i) himself or herself; or (ii) any other child or another person that they have a duty to maintain; and the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child.
The wife’s trial affidavit did not specifically address the question adult child maintenance for Y at all. There was no particular evidence of his needs, ability to support himself, his current or likely current expenses or ability to contribute to the household. The wife will receive a substantial amount of money as a result of the orders I propose to make. I have also taken account of her likely maintenance of Y under s 75(2) of the Act in reaching the percentage division of the parties’ assets. The wife agreed that Y will in all likelihood finish school as a healthy young adult male. There was no reason put forward why he could not support himself or contribute to the household by undertaking casual or other employment while studying at a tertiary level. Many students do. I am unable to find that adult child maintenance is necessary. This application of the wife’s will be dismissed.
COSTS
The husband seeks an order that the wife pay his costs of and incidental to these proceedings. The wife did not appear to seek an order for costs, and she was self-represented. Neither party has achieved their proposed outcome. It may be appropriate that there be no order as to costs. However, I will order that any application for costs be filed and served within 28 days of the date of this judgment, and thereafter if no application is filed there shall be no order as to costs.
CONCLUSION
For all the foregoing reasons I am satisfied the orders set out at the commencement of these reasons should be made.
I certify that the preceding one hundred and fifty-three (153) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 1 September 2023
ANNEXURE “A” – ORDERS SOUGHT BY THE HUSBAND
A. The Court notes the following definitions for the purposes of these Orders:
A.1 "Act" means Family Law Act 1975 (Cth);
A.2"Husband" means [Mr Fabron] born […] 1970;
A.3 "Wife" means [Ms Fabron] born […] 1965;
A.4"[Suburb K] property" means property situated at [J Street, Suburb K] in the State of New South Wales being the whole of the land contained in Folio Identifier […] together with the improvements, fixtures and fittings erected there on and/or attached thereto, of which the wife and husband are the registered proprietors and subject to the loan secured by the way of the [Suburb K] property mortgage;
A.5"[Suburb K] property mortgage" means the mortgage to the Commonwealth Bank being mortgage registration dealing number […13], secured on the [Suburb K] Property;
A.6"Husband's bank accounts" mean the following bank accounts held solely in the name of the husband:
A.6.1 Westpac account number [#…38];
A.6.2 Westpac account number [#...28];
A.6.3 [L Bank] account [#...01];
A.6.4 Any other account held in the husband's sole name;
A.7"Husband's motor vehicle" means [Motor Vehicle 1], of which the husband is the registered owner;
A.8 "Husband's company" means the company [M Pty Ltd] of which the husband is a director and in which the husband holds 10 ordinary shares of 10 ordinary shares issued;
A.9 "[N Company]" means the [Country D] company known as [N Company] which holds real property located in [Country D] of which he holds […] shares being a total interest of 22.4% totalling 269 shares out of 1202 shares. [Some of the] shares are subject to a [condition] in favour of the husband's mother;
A.10"Husband's interest in fields" means the husband's interest in fields in [Region P, Country D] being plots then registered under […] and plots registered under […] being a 25% interest subject to a [condition] in favour of the Husband's mother;
A.11 "Husband's interest in a [Country D] apartment" means the 50% bare ownership interest held by the husband in an apartment in [Country D] know as [Q Property] which includes:
A.11.1 lot […] a small apartment;
A.11.2 lot […] a lock up storage; and
A.11.3 lot […] which is a carpark;
of which the husband has bare ownership of 50% of each;
A.12 "Husband's superannuation entitlement" means the husband's entitlement in any superannuation fund including but not limited to his superannuation entitlement with [Superannuation Fund 1].
A.13"Wife's bank accounts" means:
A.13.1 ANZ account [#...78];
A.13.2 CBA off-set account number [#...05];
A.13.3 ANZ account [#...76];
A.13.4 Any other account held in the wife's sole name.
A.14"Wife's superannuation entitlement" means the wife's entitlement in the superannuation fund including but not limited to her superannuation entitlements with [Superannuation Fund 2];
A.15 "CBA Line of Credit loans" means:
A.15.1the CBA […] Line of Credit facility having BSB […] account number […94]; and
A.15.2 the [CBA] Line of Credit facility having BSB […] account number […72];
which are both held in the husband and wife's joint names;
A.16"Husband's loan from his mother" means the loan obtained by the husband from his mother valued at $187,973;
A.17"adjustment payment" means the sum required to be paid to the respondent as is required for the respondent to receive/retain interests to the value of 50% of the total value of the interests of the parties pursuant to these Orders including superannuation entitlements of the parties following a superannuation splitting order taking effect out of the husband's superannuation interests.
ORDERS:
1.That the husband and wife do all acts and things and sign all documents necessary to cause the [Suburb K] property to be listed for sale and sold for the best price reasonably obtainable in the following manner:
1.1.list the [Suburb K] property for sale by private treaty or auction with such agent as agreed between the parties within 7 days from the date of the making of these Orders and if no agreement which such agent as determined [R Valuers] ("agent");
1.2. the list price or reserve price for the purpose of such sale shall be such price as agreed between the parties 7 days from the date of the appointment of the agent or in the absence of agreement, the price recommended to the parties by the agent;
1.3.the parties shall each co-operate in every way with the agent including (without limiting the generality of the foregoing):
1.3.1. making the key available to the agent;
1.3.2.allowing inspection of the property at all reasonable times requested by the agent;
1.3.3.doing or saying nothing to hinder or prevent a sale being effected;
1.3.4.ensuring the [Suburb K] property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and
1.3.5. signing all documents requested by the agent in relation to the listing for sale of the [Suburb K] property except a contract or agreement for sale which has not been authorised by the parties' solicitors.
1.4.if the [Suburb K] property doesn't sell within 3 months of first being listed then the parties do all things and sign all documents to cause the [Suburb K] property to be sold by auction with the agent or such other agent as agreed between the parties in writing;
1.5.in reimbursement to the parties of costs associated with performing works to the [Suburb K] property provided such works are agreed to between the parties in writing;
1.6.the reserve price for the purposes of the auction will be such price as agreed to by the parties in writing and in the absence of agreement then such price as determined by [R Valuers];
1.7.in the event the bidding at the auction does not reach the reserve price the parties may negotiate with the highest bidders or any other interested person and effect a sale of the [Suburb K] property at a price which is not more than 5% below the reserve price, or at such other price as the parties agree upon in writing;
1.8.if the [Suburb K] property remains unsold 4 weeks after the date of the first auction, the property shall be listed for sale by second auction with a new real estate agent as agreed between the parties and if there is no agreement as to the real estate agent, within 5 weeks of the first auction, the husband shall provide to the wife the name of 3 real estate agents to act in respect of the sale of the [Suburb K] property and within a further 7 day of the husband providing to the wife the names of 3 real estate agents as referred to above, the wife shall select one of the real estate agents nominated by the husband to act on the sale of the [Suburb K] property and Order 1.3 – 1.7 herein will apply mutandis mutatis;
1.9.if the [Suburb K] property remains unsold after the second auction, the husband and wife shall list the [Suburb K] property for sale by private treaty with the agent and shall accept any unconditional offer to purchase the [Suburb K] property which is greater than the amount 5% below the second auction reserve price or such other lower price as the husband and wife agree in writing;
1.10.if the [Suburb K] property remains unsold for a period of 6 months after the date of these orders, each party has liberty to apply to the Court for further or other mechanical orders as to the method and price of sale of the property;
1.11. the parties shall instruct [S Lawyers] to have the conduct of the sale on behalf of both parties or, such other solicitor as agreed upon by the parties in writing (“the solicitor”);
1.12. the parties shall each execute a contract for sale in the form prepared by the solicitor having the conduct of the sale at the sale price;
1.13.neither party may confer on any agent without the consent of the other party any right to any sole or exclusive agency in respect of the [Suburb K] property or to any commission.
2. That on completion of the sale of the [Suburb K] property the parties do all acts and things to cause the proceeds of sale to be paid in the following manner and priority:
2.1.in payment of such sum as required to discharge the [Suburb K] property mortgage and the CBA Line of Credit facilities;
2.2. in payment of the selling costs, agents commission, auction fees and the costs of any stylists if one is engaged;
2.3. in payment of the usual conveyancing adjustments;
2.4. in payment of such sum then remaining as follows:
2.4.1. in payment to the wife of 45% together with the adjustment payment (or such sum as then remains outstanding) less any amount unpaid by the wife pursuant to Order 3); and
2.4.2. the remaining balance of the proceeds of sale shall be paid to the husband.
3. That pending the sale of the [Suburb K] property the wife shall meet as and when the same falls due all expenses in relation to the [Suburb K] property including but not limited to all scheduled mortgage repayments, statutory rates and charges, and all payments necessary to maintain the property in good order and condition and the wife shall be and hereby is restrained from any dealing with her interest in and/or to the [Suburb K] property save in accordance with these Orders, including but not limited to being restrained from transferring, assigning, encumbering or further encumbering (including by causing or permitting any increase in the amount of any liability secured over or by reference to) her interest in the [Suburb K] property.
Superannuation split
4. That paragraphs 5 - 8 have effect from the operative time and the operative time is 4 business days from service of a certified copy of sealed Orders on the trustee.
5. That having been afforded procedural fairness, these Orders bind the trustee of [Superannuation Fund 1].
6.That a base amount of $243,893 is allocated, in accordance with s 90XT(4) of the Act, to the wife out of the husband's [Superannuation Fund1] having number […].
7. That in accordance with Section 90XT(1)(a) of the Family Law Act 1975:
7.1.the wife is entitled to be paid the base amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001;
7.2.the husband's entitlement in the husband's [Superannuation Fund 1], is correspondingly reduced.
8.That the trustee of [Superannuation Fund 1], [Superannuation Fund 1 Pty Ltd] ("the trustee") shall do all such acts and things and sign all such documents as may be necessary to:
8.1.calculate, in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001, the base entitlement created for the wife by these Orders; and
8.2.pay the entitlement whenever the trustee makes a splittable payment out of the husband's interest in the said fund.
9. That except as provided to the contrary by these Orders, the husband shall retain, to the exclusion of the wife, all of his right, title and interest in:
9.1.the husband's superannuation entitlement following the superannuation splitting orders taking effect pursuant to these Orders;
9.2. the husband's motor vehicle;
9.3.the husband's bank accounts;
9.4.the company;
9.5.the husband's interest in a [Country D] apartment;
9.6. the husband's interest in fields;
9.7. the husband's interest in [N Company];
9.8. all other property and chattels of whatsoever nature and kind in his possession or control as at the date of the making of these Orders or coming into existence in the future.
10.That except as provided to the contrary by these Orders, the wife shall retain, to the exclusion of the husband, all of her right, title and interest in:
10.1.the wife's bank accounts;
10.2. the wife's superannuation entitlement;
10.3. all other property and chattels of whatsoever nature and kind in her possession or control as at the date of the making of these Orders or coming into existence in the future.
11. That the husband be responsible for and shall indemnify the wife and keep her indemnified in respect of the following:
11.1. the husband's credit card debt;
11.2. the husband's debt to the Australian Taxation Office;
11.3. the husband's loan from his mother.
12. That the wife be responsible for and shall indemnify the husband and keep him indemnified, in respect of the following:
12.1.the wife's credit cards;
12.2. any tax liabilities existing or arising in the future relating to any asset the wife retains under the terms of these Orders;
12.3. any liability owed to [JJ School];
12.4. all other liabilities existing now or arising in the future held in the wife's sole name or relating to any asset retained or received by the wife pursuant to these Orders.
13. That each party forgives any loans owing from one to the other.
14. That in the event that either party refuses or neglects to execute any deed, document or instrument to give effect to these Orders within 14 days of such document being tendered for signature, a Judicial Registrar of the Federal Circuit and Family Court of Australia is appointed pursuant to s 106A of the Act to execute any such deed, document or instrument in the name of such party and to do all acts and things necessary to give validity and operation to any such deed, document or instrument and for the purpose of this order a party shall be deemed to have refused or neglected to execute any such deed, document or instrument, if the said deed, document or instrument is not returned to the submitting party within 14 days of the said document being forwarded to the other party's solicitor or the other party directly by email where an electronic document or by ordinary mail where a physical document.
Other Orders
15. That the Amended Response to Initiating Application filed by the wife on 5 July 2019 and any amendments thereto otherwise be dismissed.
Costs
16. The wife shall pay the applicant's costs of and incidental to these proceedings.
ANNEXURE “B” – WIFE’S PROPOSED MINUTE OF ORDER
1. That the husband shall within 21 days from the date of these Orders do all acts and things to sign all documents presented to him by the wife as are necessary to transfer to the wife all of his right, title and interest unencumbered in the property situated at [J Street, Suburb K] in the State of New South Wales (“the [Suburb K] property”) being the whole of the land contained in Folio Identifier […] together with the improvements, fixtures and fittings erected thereon and/or attached thereto, of which the wife and husband are the registered proprietors.
2.Simultaneously with the compliance of the husband with his obligation under Order 1 hereof:
2.1 the husband shall discharge the mortgages with CBA which are held in the husband and wife’s joint names, and shall indemnify the wife in relation to same;
2.2the husband shall indemnify the wife in relation to all payments in respect of rates, taxes, charges, insurance and expenses in relation to repairs and improvements due or accruing in respect of the [Suburb K] property.
3. Except as any provision in these Orders provides to the contrary, the husband and wife are declared the sole legal and beneficial owners to the exclusion of the other of the following:
The wife to retain:
3.1 the wife’s bank accounts
3.2 the wife’s superannuation entitlement
3.3 the household contents from the [Suburb K] property
3.4 all other personal property (including choses in action) of whatsoever nature and kind in the possession of the wife at the date of making these Orders.
The husband to retain:
3.5 the husband’s bank accounts (in [Country D] and in Australia)
3.6 the husband’s interest in [M Pty Ltd]
3.7 the husband’s motor vehicle
3.8 the husband’s superannuation entitlement
3.9 the husband’s interests in [N Company] and any other property holdings or interests in property or future entitlements to property in [Country D]
3.10 all other personal property (including choses in action) of whatsoever nature and kind in the possession of the husband at the date of making these Orders.
4. That the husband indemnifies the wife and keep the wife indemnified in respect of any other liability, debt or loan in his name solely or jointly with any other person or entity or for which he is otherwise liable as at the date of these Orders including but not limited to:
4.1 the husband’s credit card debt;
4.2 the husband’s debt to the Australian Taxation Office;
4.3 the husband’s loan from his mother;
4.4 any tax liabilities existing or arising in the future relating to any asset the husband retains under the terms of these Orders.
5. That the wife indemnifies the husband and keep the husband indemnified in respect of any other liability, debt or loan in her name solely or jointly with any other person or entity or for which she is otherwise liable as at the date of these Orders including but not limited to:
5.1 the wife’s credit card;
5.2 the wife’s HELP debt;
5.3 the wife’s loan from her mother;
5.4any fees due to [JJ School], other than the amounts previously ordered to be paid by the husband;
5.5 any tax liabilities existing or arising in the future relating to any asset the wife retains under the terms of these Orders.
6. That in the event that either party refuses or neglects to execute any Deed, document or instrument to give effect to the Orders made herein within seven (7) days of such document being tendered for signature, the Registrar of the Federal Circuit and Family Court of Australia, Sydney is hereby appointed pursuant to Section 106A of the Act to execute any such Deed, document or instrument in the name of such party and do all acts and things necessary to give validity to the operation of any such Deed, document or instrument and for the purposes of this Order a party shall be deemed to have refused or neglected to execute and such Deed, document or instrument if the said Deed, document or instrument is not returned to the submitting party within seven (7) days of the said document being forwarded to the other party’s solicitor by document exchange or to the other party by ordinary mail.
7. In the event the Court does not consider it just and equitable to make Orders 1 and 2 and instead orders a reduced, or no, payment from the husband to the wife, then that the husband pay adult child maintenance to the wife for [Y] in the sum of $5,119.92 per month for the period 1 January 2024 to 31 December 2027.
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