Falk & Falk (No 2)
[2024] FedCFamC1F 97
•28 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Falk & Falk (No 2) [2024] FedCFamC1F 97
File number: SYC 4653 of 2019 Judgment of: CAMPTON J Date of judgment: 28 February 2024 Catchwords: FAMILY LAW – PROPERTY – Where the husband’s solicitors filed a Notice of Ceasing Act the morning of the trial, and his legal representatives attended obtaining leave to withdraw on termination of their retainer – Where the husband was not in attendance at the trial and did not make an application to attend electronically – Where the husband indirectly communicated a request for adjournment but did not did avail himself of the alternative mechanisms to make such application – Where the trial proceeded undefended – Where the husband is currently residing in a property of which the wife is the legal owner and the wife is residing in rental accommodation – Weight attached to direct initial financial contributions and the use made of them – Where the wife makes a Kennon v Kennon (1997) FLC 92-757 contention that her contributions were made significantly more arduous – Where the wife does not establish that contention – Where consideration is given to the use and application of capital by the parties over the lengthy period of time subsequent to their separation – Orders made adjusting the property of the parties 75 per cent to the husband and 25 per cent to the wife. Legislation: Family Law Act 1975 (Cth) ss 75 and 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 11, rr 3.10, 15.15 and 15.16
Cases cited: AJO & GRO (2005) FLC 93-218; [2005] FamCA 195
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 174; [2009] HCA 27
Barrett & Winnie (2022) FLC 94-093; [2022] FedCFamC1A 99
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Carter & Wilson (2023) FLC 94-129; [2023] FedCFamC1A 9
DJM & JLM (1998) FLC 92-816; [1998] FamCA 97
Edgehill & Edgehill [2007] FamCA 1102
Franklin & Ennis [2019] FamCAFC 91
Gollings & Scott (2007) FLC 93-319; [2007] FamCA 397
Horrigan & Horrigan [2020] FamCAFC 25
Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27
Kowaliw and Kowaliw (1981) FLC 91-092; [1981] FamCA 70
NHC & RCH (2004) FLC 93-204; [2004] FamCA 633
Pierce v Pierce (1999) FLC 92-844; [1998] FamCA 74
Rosati & Rosati (1998) FLC 92-555; [1998] FamCA 38
Saha & Lahiri (No 3) (2023) FLC 94-158; [2023] FedCFamC1A 144
Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52
Townsend & Townsend (1995) FLC 92-569; [1994] FamCA 144
Trevi & Trevi [2018] FamCAFC 173
Weir and Weir (1993) FLC 92-338; [1992] FamCA 69
Division: Division 1 First Instance Number of paragraphs: 138 Date of hearing: 26 February 2024 Place: Sydney Counsel for the Applicant: Mr Ahmad Solicitor for the Applicant: Dorter Family Lawyers and Mediators Solicitor for the Respondent: No appearance ORDERS
SYC 4653 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FALK
Applicant
AND: MR FALK
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
28 FEBRUARY 2024
THE COURT ORDERS THAT:
1.It is noted that the following definitions have the following meanings for the purpose of these Orders:
(a)"Suburb E Property" means the property situated at and known as O Street, Suburb E more fully described in folio identifier …;
(b)"Joint Bank Accounts" means the following bank accounts held in the parties joint names:-
(i)NAB bank account BSB Number … Account Number …83;
(ii)NAB bank account BSB Number … Account Number …85;
(iii)Q Bank account, account number …33;
(iv)Q Bank account, account number …33;
(v)Q Bank account BSB Number … Account Number …00;
(vi)Q Bank account BSB Number … Account Number …39;
(vii)Q Bank account BSB Number … Account Number …18;
(viii)U Bank account …88;
(ix)X Bank account sort code … account number …68;
(x)X Bank account sort code … account number …68;
(xi)Country Y (GPB) Account;
(xii)Country Y (Euro) Account;
(xiii)Country Y (USD) Account;
(xiv)Z Financial Services.
(c)"Suburb C Property" means the property situated at and known as B Street, Suburb C more fully described in folio identifier …;
(d)"Suburb D Property" means the property situated at and known as AA Street, Suburb D more fully described in folio identifier …;
(e)“Town CC Property” means the property situated at and known as BB Street, Town CC.
2.Within 90 days of the date of these orders, the husband pay to the wife $823,201.
3.That the wife be declared to be solely entitled to the whole of her interest in the Suburb C property and the wife shall indemnify and keep indemnified the husband in relation to all mortgage payments, statutory rates and charges, other expenses and liabilities in relation to the Suburb C property whenever and however arising.
4.That within 21 days of the making of these orders the husband will vacate the Suburb C property and shall leave the property in good repair and condition and leaving it intact of all fixtures and fittings, light fittings, blinds, curtains and fixed appliances.
5.That the husband is hereby declared to be solely entitled to the whole of his interest in the Suburb E property, Suburb D property and Town CC property and the husband hereby indemnifies and shall keep indemnified the wife in relation to all mortgage payments, statutory rates and charges, other expenses and liabilities in relation to the Suburb E property, Suburb D property and Town CC property whenever and however arising.
6.Within 14 days of the date of these orders, the parties will do all acts and things and sign all documents necessary to close the Joint Bank Accounts and pay the balance to the wife.
7.Within 21 days of the date of these orders, the wife shall do all things as are necessary to facilitate and make available for collection by the husband, at his expense:
(a)the contents of the storage facility, being as identified on pages 11-18 of Exhibit 12, excluding the art work “[…]”, being the single expert report of DD Valuers; and
(b)the joint artwork identified as Item 37 in the balance sheet at [58] of the reasons for judgment.
and the husband shall retain, as against the wife, the said contents and artwork.
8.Subject to the above orders, the husband is entitled to retain sole legal and beneficial ownership to the exclusion of the wife of:-
(a)all items of property and personality including motor vehicles, money, jewellery, art work, including that identified in order 7(b) and personal effects, including that identified in order 7(a) in his possession;
(b)all shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his sole name;
(c)all interests in life insurance policies and superannuation funds standing in his sole name.
9.Subject to the above orders, the wife is entitled to retain sole legal and beneficial ownership to the exclusion of the husband of:-
(a)all items of property and personality including motor vehicles, money, jewellery, art work, including “[…]” and personal effects presently in her possession subject to order 7 hereof;
(b)all shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in her sole name;
(c)all interests in life insurance policies and superannuation funds standing in her sole name.
10.Subject to the above orders:-
(a)the husband hereby indemnifies the wife from and in respect of all actions, claims, suits and demands as may be made against the wife in relation to all liabilities in the name of the husband or in his name jointly with any other person;
(b)The wife hereby indemnifies the husband from and in respect of all actions, claims, suits and demands as may be made against the husband in relation to all liabilities in the name of the wife or in her name jointly with any other person.
11.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 fourteen (14) 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 s 106A of the Family Law Act 1975 (Cth) 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 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 any such deed, document or instrument if the said deed, document or instrument is not returned to the submitting party within fourteen (14) days of the said document being forwarded to the other party’s solicitor by document exchange or to the other party by ordinary mail.
12.Within 28 days of the date of these orders, should any party wish to make any other application for costs of or incidental to the proceedings, they are to file and serve an Application in a Proceeding specifying the orders sought, and any affidavit in support thereof. Any Response to such Application in a Proceeding and affidavit in support thereof, shall be filed and served within 14 days thereafter.
13.Save and except for as provided by these orders and as to costs, all extant applications and responses of both the husband and the wife are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Falk & Falk has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
INTRODUCTION
By way of an Initiating Application filed 17 July 2019 Ms Falk (“the wife”) commenced proceedings in what was then the Family Court of Australia seeking adjustment of property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”), subsequent to the breakdown of her marriage with Mr Falk (“the husband”). The husband filed a Response to an Initiating Application on 19 September 2019 seeking different orders as to the adjustment of property.
The wife was born in 1958 and is currently 65 years old. The husband was born in 1963 and is currently 60 years old.
The parties commenced cohabitation in late 2008 and married in 2010. There are no children of the marriage. The parties separated on 10 April 2019 and were divorced in early 2021.
For the reasons that follow, on an undefended basis, the property of the parties is adjusted as to 25 per cent to the wife and 75 per cent to the husband. The husband shall provide the wife with vacant possession of her property at B Street, Suburb C (“the Suburb C property”) within 21 days. The husband shall pay to the wife the sum of $823,201 within 90 days.
The husband’s failure to appear at trial, and the final trial proceeding in his absence
On 24 November 2022 extensive trial directions were made listing the matter for final hearing over five days commencing 19 February 2024. Senior counsel for the husband drafted a Case Outline for the purposes of that trial filed on 15 February 2024. The wife’s Case Outline, also drafted by senior counsel, was filed on 16 February 2024, incorporating a minute of final orders sought.
On 15 February 2024 the Court advised the parties and their legal representatives that the hearing listed to commence on 19 February 2024 was unable to proceed on that date due to late changes to judicial unavailability. The parties arranged for a private mediation to occur on 19 February 2024 with Mr EE. On 19 February 2024, the wife, her solicitor and senior counsel and the husband’s solicitor and senior counsel attended and were present for the purposes of the mediation. The husband communicated that he had no intention to attend. The mediation was aborted.
The matter was listed on 20 February 2024 for further case management. The wife attended in person with her solicitor, senior counsel, and junior counsel. The husband attended in person with his solicitor. Directions were made standing the proceeding out of the list on that day, advising the litigants that the proceeding would be allocated further trial dates on short notice with priority.
On 21 February 2024, the following day, directions were made listing the trial to commence on 26 February 2024 for five days before me and for the preparation of a collaborative joint balance sheet. The latter direction was not the subject of compliance.
At 8.40am on 26 February 2024, being the morning of the first day of the trial, the solicitors for the husband filed a Notice of Ceasing to Act (Exhibit 1). Pursuant to r 3.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the solicitors for the husband had served a copy of the proposed Notice on the husband to his last known email address and last known residential address. The Notice recorded advice to the husband that the proceeding was listed for final trial commencing on 26 February 2024.
On 26 February 2024 the husband’s counsel and solicitor appeared, advising the Court that there was no current retainer in place and the solicitors no longer acted for the husband. Leave was sought to withdraw. That leave was granted. At 10.08am the husband was called three times outside of the courtroom. No appearance was made. The wife advised the court that she did not have a contact telephone number for the husband. Directions were made for the trial to be adjourned to 11.30am and for the wife to cause her solicitors to notify the husband by email that if there was no appearance by or on his behalf at 11.30am, the matter would proceed to be determined on an undefended basis. The wife complied with that direction; the email being sent at 10.24am (Exhibit 2).
At 11.30am the husband was called three times outside of the courtroom. No appearance was made. The undefended hearing commenced. During a short adjournment of the hearing, prior to 1.00pm, the wife provided to the Court an email from the husband forwarded to her solicitor at 11.58am from his email address – (Exhibit 11), recording as follows:
Dear [Mr EE],
I refer to your email below. There seems to be some confusion as I thought the matter had been adjourned to a later date. I understand from your email the matter is going to proceed despite the termination of my lawyers.
I would like to make an application to adjourn the hearing until I sort out the situation with my lawyer or get new representation. Can you kindly send through the details so that allow me to dial into the court so that I can make the application.
If you could hand up a copy of this email to the judge in the meantime until such time that I dial in make the application for adjournment.
The dial in details can be sent to this email address
[Mr Falk]
The following as identified by the Full Court in Saha & Lahiri (No 3) (2023) FLC 94-158 at [123] is apposite to the circumstances in this matter:
…requests for leave to appear at a hearing via electronic means or applications for adjournment, are generally required to be made formally and in accordance with the Rules. It is as well to be reminded of the observations by the Full Court in Buljubasic & Buljubasic [(1999) FLC 92-865]at 86,221–86,222:
… I think it is appropriate to observe that in this modern day there seems to be a tendency for people to believe that it is an appropriate way to communicate with courts, or this court at least, by sending facsimile transmissions to the registrar in the belief that they will come to the attention of the trial Judge. Ordinarily speaking, that is not a proper way for any litigant to seek to communicate with the court. Whilst it is appropriate to communicate with the registry about procedural matters in that fashion, no doubt, it is not an appropriate way for a litigant, whether represented or unrepresented, to seek to communicate with the judge who is to hear the case.
Ordinarily speaking, if a party to proceedings, whether represented or otherwise, seeks to have an indulgence from the court in the form of an adjournment or an extension of time for doing something which has been listed to be disposed of on a particular day, the litigant has an obligation either to appear before the court in person to seek that indulgence or to send a legal representative on his or her behalf to make a proper application to the court for that relief. It is not, generally speaking, an appropriate way to seek an adjournment of proceedings which are listed for hearing before the court to send a letter, whether by facsimile or otherwise, to the registry on the morning of the hearing setting forth the request for an adjournment and stating the grounds upon which the application is made.
(Footnotes omitted)
On a consideration of all of the above matters, I find that the husband was aware, or ought to have been aware, that the trial was listed to commence over five days from 26 February 2024, and that if he failed to appear the matter would proceed in his absence. The husband was not prevented from:
(a)Filing an Application in a Proceeding seeking such orders as he considered appropriate (including as to an adjournment of the trial) and evidence in support thereof, between 21 and 26 February 2024;
(b)Instructing alternate legal representatives to appear on his behalf at trial after he received notice from his prior solicitors of their intention to cease to act for him or the termination of their retainer;
(c)Appearing in person at the trial on his own behalf; or
(d)Filing an application pursuant to r 15.16 to appear electronically at the trial.
He adopted none of these options. Until the morning of the trial, he was represented by experienced solicitors and counsel.
I do not accept that the husband made an application for an adjournment of the trial. An indirect request communicated through the legal representative another other party is not an application. Should this conclusion be in error, the husband failed to identify why he could not or did not, as required by r 15.15(1), attend court in person at any time on 26 February 2024. He did not identify the duration of the adjournment sought. Each of these factors attract considerable weight in refusing any adjournment application.
I was satisfied that the husband has been given an adequate opportunity to be heard, and to present his case. The parties separated almost five years ago. This litigation commenced four and a half years ago. The proceeding has consumed 61 court listings, including defended interlocutory determinations and other listings for interlocutory hearing together with an appeal to the Full Court. Five days of scarce court trial time had been urgently set aside and allocated to this proceeding. Where the husband has had the opportunity to present evidence and argument putting forward his case, it is necessary for the Court to conclude this litigation for the sake of doing justice to the wife and to other litigants and stakeholders accessing the resources of court (Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 174 at [94]).
For all the above reasons, I was satisfied that it is in the interests of justice for the wife to proceed at trial in the absence of the husband on an undefended basis.
DOCUMENTS RELIED UPON
The wife relied upon:
·Her Further Amended Initiating Application filed 19 December 2023;
·Her affidavits filed 19 December 2023 and 26 February 2024;
·Exhibits to her affidavit filed 19 December 2023 (Exhibit 4). During the hearing the wife was advised that regard would only be had to those documents in this exhibit that were identified in submissions;
·Her financial statement filed 19 December 2023;
·Her Case Outline incorporating her minute of order sought filed 16 February 2024 (Exhibit 3);
·The document headed “interests in property, liabilities and financial resources – working version” being pages 20, 21 and 22 of the husband’s Case Outline filed 15 February 2024 (Exhibit 5);
·Paragraphs 297 – 299 and 313 – 328 inclusive of the husband’s affidavit sworn 12 December 2023 and filed 19 December 2023 (Exhibit 6);
·Affidavit of Mr FF, single real property valuation expert filed 12 February 2024;
·Affidavit of Mr GG, single forensic accounting expert filed 21 February 2024;
·Letter from Chairman, HH Limited to the husband dated 17 February 2015 (Exhibit 7);
·Husband’s Second Further Amended Response to an Initiating Application filed 2 February 2023 (Exhibit 8);
·Wife’s contended balance sheet for trial (Exhibit 9);
·Wife’s costs notice filed 26 February 2024 (Exhibit 10);
·Affidavit of the husband’s treating medical practitioner, Professor V, as to the husband’s diagnosis and prognosis filed 20 December 2023;
·Single expert report of DD Valuers dated 24 February 2022 as to the valuation of personality, watches, and other items (Exhibit 12); and
·Paragraphs 310 – 312 of the husband’s affidavit sworn 12 December 2023 and filed 19 December 2023 (Exhibit 13).
ORDERS SOUGHT BY THE WIFE
The wife seeks:
1. It is noted that the following definitions have the following meanings for the purpose of these Orders:
1.1 "[Suburb E] Property" means the property situated at and known as [O Street, Suburb E] more fully described in folio identifier […];
1.2 "Joint Bank Accounts" means the following bank accounts held in the parties joint names:-
1.2.1 NAB bank account BSB Number […] Account Number […83];
1.2.2 NAB bank account BSB Number […] Account Number […85];
1.2.3 [Q Bank] (HKD) bank account, account number […33];
1.2.4 [Q Bank] (AUD) bank account, account number […33];
1.2.5 [Q Bank] (HKD) bank account BSB Number […] Account Number […00];
1.2.6 [Q Bank] (AUD) bank account BSB Number […] Account Number […39];
1.2.7 [Q Bank] (AUD) bank account BSB Number […] Account Number […18];
1.2.8 [U Bank] account […88];
1.2.9 [X Bank] account sort code […]account number […68];
1.2.10 [X Bank] account sort code […]account number […68];
1.2.11 [Country Y] (GPB) Account;
1.2.12 [Country Y] (Euro) Account;
1.2.13 [Country Y] (USD) Account;
1.2.14 [Z Financial Services].
1.3 "Suburb C Property" means the property situated at and known as [B Street, Suburb C] more fully described in folio identifier […];
1.4 "[Suburb D] Property" means the property situated at and known as [AA Street, Suburb D] more fully described in folio identifier […];
1.5 “[Town CC] Property” means the property situated at and known as [BB Street, Town CC].
2. That there be a cash adjusting payment from the Husband to the Wife such that the Wife shall receive 37.5% and the Husband receive 62.5% of the net asset pool [at trial the wife particularised the value of this adjusting sum at $1,996,277].
3. That the Wife be declared to be solely entitled to the whole of her interest in the [Suburb C] property and the Wife shall indemnify and keep indemnified the Husband in relation to all mortgage payments, statutory rates and charges, other expenses and liabilities in relation to the [Suburb C] Property whenever and however arising.
4. That within 14 days of the making of these Orders the Husband will vacate the [Suburb C] property and shall leave the property in good repair and condition and leaving it intact of all fixtures and fittings, light fittings, blinds, curtains and fixed appliances.
5. That the Husband is hereby declared to be solely entitled to the whole of his interest in the [Suburb E Property, Suburb D] Property and [Town CC] Property and the Husband hereby indemnifies and shall keep indemnified the Wife in relation to all mortgage payments, statutory rates and charges, other expenses and liabilities in relation to the [Suburb E] Property, [Suburb D] Property and [Town CC] Property whenever and however arising.
6. Within 14 days of the date of these Orders, the parties will do all acts and things and sign all documents necessary to close the Joint Bank Accounts and pay the balance to the Wife.
7. Subject to the above Orders, the Husband is entitled to retain sole legal and beneficial ownership to the exclusion of the Wife of:-
7.1 all items of property and personalty including motor vehicles, money, jewellery, art work and personal effects including belongings of his held in storage;
7.2 all shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his sole name;
7.3 all interests in life insurance policies and superannuation funds standing in his sole name.
8. Subject to the above Orders, the Wife is entitled to retain sole legal and beneficial ownership to the exclusion of the Husband of:-
8.1 all items of property and personalty including motor vehicles, money, jewellery, art work and personal effects presently in her possession;
8.2 all shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in her sole name;
8.3 all interests in life insurance policies and superannuation funds standing in her sole name.
9. Subject to the above Orders:-
9.1 the Husband hereby indemnifies the Wife from and in respect of all actions, claims, suits and demands as may be made against the Wife in relation to all liabilities in the name of the Husband or in his name jointly with any other person;
9.2 The Wife hereby indemnifies the Husband from and in respect of all actions, claims, suits and demands as may be made against the husband in relation to all liabilities in the name of the Wife or in her name jointly with any other person.
10. Subject to the above Orders, each of the Husband and the Wife release the other from all actions, proceedings, claims, demands, debts, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.
11. 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 fourteen (14) 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 to 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 any such deed, document or instrument if the said deed, document or instrument is not returned to the submitting party within fourteen (14) days of the said document being forwarded to the other party’s solicitor by document exchange or to the other party by ordinary mail.
(As per the original)
The wife’s minute of order did not specify a period for the payment of the cash adjusting sum from the husband. During the hearing, she sought payment within 60 days of any order. The minute did not seek an order for the sale of the husband’s real property in the event he defaulted in paying the cash adjusting sum. The wife sought that an order in default of payment be made in the terms identified in the husband’s Second Further Amended Response filed 2 February 2023 (Exhibit 8). That response identified the husband seeking an order for the sale of his property at Suburb D, and after payment of selling costs, any mortgage, and any Capital Gains Tax (“CGT”):
5.Upon completion of the sale of the [Suburb D] Property pursuant to Order 4 of these Orders, the proceeds of sale will be paid in the following manner and priority:-
…
5.5in payment to the Wife such sum so as to result in her retaining 17.5% of the pool of assets of the parties as ultimately ascertained by the Court;
5.6 in payment to the Husband of the remaining balance.
(Emphasis in original)
The wife sought a contribution finding in her favour as to 33 per cent of the property of the parties and an adjustment to that finding in her favour of a further 4.5 per cent, such that she would receive 37.5 per cent of the property of the parties.
BACKGROUND
In 1995 the wife purchased the Suburb C property for $248,000. The funds used to pay the purchase price were comprised of $160,000 provided to her by her father and $80,000 from a loan secured by a mortgage over the property from KK Bank. The wife resided in that property from the time it was purchased until cohabitation.
The wife in her trial affidavit said, and I accept:
8.In 2007, about two years preceding cohabitation, the business [the husband] founded and which traded as [LL Limited] was sold to [AC Holdings]. I am not aware of, nor have I received any disclosure in these proceedings of the total share price. As part of that transaction, I am aware he received ordinary shares in [AC Holdings] at an issue price of $14.9529 per share that were subject to a voluntary escrow period of 3 years ending on 30 July 2010…
9.By the date of our cohabitation [the husband] remained employed by [LL Limited] as Chief Executive Officer. At this time [AC Holdings] had suffered a huge wipe in its market value and its share price had plummeted. Exhibited hereto and marked “[MF-2]” is a copy of share holding statement dated 10 May 2011 that identifies the balance of [AC Holdings] shares escrowed to 30 July 2010 as NIL and the balance of 129,063 ordinary fully paid [AC Holdings] shares at $711,137.13. Ultimately the value of the [AC Holdings] shares continued to plummet and to the best of my knowledge they became far less in value to [the husband].
(Emphasis in original)
In her Case Outline, the wife conceded, and I accept, that the husband received remuneration of $244,413 per annum from his employment at LL Limited.
Prior to cohabitation the wife was employed as a manager, earning approximately $120,000 per annum inclusive of superannuation and a company car. Shortly preceding cohabitation, she was made redundant from this role.
It was the wife’s evidence, and I accept, that the husband requested she not return to gainful employment, and that the husband said he would pay her a monthly allowance to “take care of him, the household and our financial and non-financial affairs”. She said, and I accept, that the monthly allowance was applied towards living expenses.
At cohabitation, the parties commenced to reside in the husband’s Suburb D property. The Suburb C property was rented out for $500 per week. The rental repayments were utilised to meet the expenses of the property and mortgage repayments. That property continued to be leased until 28 February 2017.
The parties lived at the Suburb D property until 2011, when the husband ceased to be employed by LL Limited. That property was thereafter, and continues to be, leased to tenants. It was the wife’s evidence, and I accept, that:
During the marriage [the husband] and I held joint accounts and at times the rental income received from each of the [Suburb D], [Suburb E] and [Suburb C] properties was pooled together into a joint account and paid towards each of the mortgage instalments and outgoings respectively for each property.
It is the wife’s evidence, and I accept, that between 2012 to 2019 the parties travelled together and resided overseas, including in Europe, and Country F, being a function of the husband’s employment. In her trial affidavit, the wife said, and I accept, that:
(a)From 2012 to 2015, [the husband] was employed as [a senior executive] of [HH Limited] in [the UK] where we had jointly relocated;
(b)In 2015 we relocated to [Country F] where, until 2018, [the husband] was employed by [MM Limited] as [a senior executive].
In her Case Outline the wife conceded, and I accept, that the husband received a remuneration of approximately $200,000 per annum plus bonuses pursuant to his employment in the United Kingdom with HH Limited, and received approximately $1,300,000, in addition to rent and travel expenses, pursuant to his employment in Country F with MM Limited.
Whilst the parties resided in Country F, the wife was employed by MM Limited as the husband’s personal assistant receiving $40,000 per annum. The wife said, and I accept, that she applied this income to household and living expenses.
On or around late 2011, the wife was appointed as a director and shareholder, with the husband, of L Pty Ltd. This company was the corporate trustee of the M Super Fund of which the husband and the wife were the members. On 30 June 2015 the parties appointed their accountant, Mr J of NN Financial Services, as the sole director and secretary of L Pty Ltd to meet Australian compliance regulations.
In or about late 2016, the husband and wife agreed that the wife would offer the husband’s son, Mr S and his partner, Ms OO, to live in her Suburb C property. In or around early 2017, Mr S and Ms OO commenced to reside in the Suburb C property. From that time the husband met the monthly repayments for the mortgage secured over the Suburb C property.
In her Case Outline the wife conceded that in mid-2018 the husband retired from employment when his health deteriorated, and that he has not been in paid employment since this time. She stated, and I accept, that the husband received a retirement package which consisted of him being paid his salary until 31 December 2018, 50 per cent of his salary from 1 January 2019 to 12 April 2019, and GBP2,000,000 payable in instalments on 31 December 2018 and 12 April 2019.
The husband and the wife returned to Australia in early 2019. They commenced living in a serviced apartment in Suburb C.
In early 2019, the husband caused the mortgage secured against the Suburb C property to be discharged, paying out $106,304.
The husband and the wife separated on a final basis on 10 April 2019. The wife moved out of the serviced apartment that day.
Events following separation
In 2019 the wife’s father died in Country PP. The wife said, and I accept, that she received no benefit from her late father’s modest estate, it passing to her mother. Her mother continues to live in Country PP.
Following separation, the wife transferred $1,000,000 from the parties joint Q Bank account. I accept the wife’s evidence as to the use and application of those funds, being;
(a)Partial property settlement payable to the husband pursuant to an order in August 2020 of $200,000;
(b)Legal fees, including this proceeding and two proceedings in the Supreme Court of NSW, in the sum of approximately $385,000; and
(c)Living expenses of approximately $363,000; and
(d)That $53,000 remains in wife’s bank account.
As to the husband’s use and application of the balance of funds in the joint account at separation, I accept the husband’s evidence, as relied upon by the wife, at paragraph 313 of his affidavit filed 19 December 2023:
313.After [the wife] withdrew approximately $1,000,000 AUD from our joint bank accounts between 8 April 2019 and 24 May 2019, I was left with HKD $2,637,753 (approximately $474,000 AUD) in those accounts. Since separation I have spent all of those funds as follows:-
(a)Approximately $172,000 AUD to pay for my living expenses noting that I had to replace my personal belongings and furnish the [Suburb C] property;
(b) Approximately $185,000 AUD for the purchase of items of jewellery which was gifted to [Ms SS] in return for her caring for me when I was seriously ill and paying some of my medical and travel bills;
(c) Approximately $44,000 AUD paid to my former solicitors, [QQ Lawyers];
(d)Approximately $54,000 AUD paid to [Ms SS] to meet my living and medical expenses as deposed to below.
(e) $5,000 AUD paid to [AD lawyers].
(f)Approximately $14,000 AUD paid to an account. I cannot recall what this payment was for, have no recollection of the bank account those funds were paid to. I have made enquiries and understand that this is not an account held in my name or [Ms SS’s] name. I continue to make inquiries to try and determine what this payment related to.
Exhibited hereto and marked with the letter “[F] 66” is a schedule setting out details of the above transactions.
(Emphasis in original)
The husband’s medical issues, power of attorney and appointment of a case guardian for the husband
The husband was admitted to hospital for problems in early 2020. He was transferred to a hospital in Sydney. A diagnosis was made with a serious prognosis. He was discharged from hospital in early 2020.
A summons was filed in the Supreme Court of NSW seeking the wife’s removal as the husband’s Enduring Guardian and Power of Attorney, and for Mr S, the husband’s aunt, Ms RR, and his sister, Ms R, all to be appointed in that position. In early 2020 a consent order was made in the Supreme Court of NSW, for the husband’s sister, Ms R, to be appointed to the positions of Enduring Guardian and Power of Attorney.
A short time later, this court, by consent, appointed Ms R as the husband’s Case Guardian in these proceedings.
In April 2020, the husband’s solicitor sent an email requesting the wife’s consent to the removal of Ms R as Case Guardian. The wife did not consent. On 1 June 2020, a registrar ordered the removal of Ms R as the husband’s case guardian.
The Suburb C property
In late 2019 the wife commenced proceedings in the Supreme Court of NSW seeking to recover vacant possession of the Suburb C property. The defendants to those proceedings were Mr S and Ms OO.
In April 2020, the wife was informed that the Mr S and Ms OO had vacated the Suburb C property, and that the husband was living in the property without the wife’s knowledge or consent. The wife asserts, and I accept, that the husband has occupied that property since at least mid-2020.
In mid-2020 the wife achieved a judgment in her favour in the Supreme Court for possession of the Suburb C property, with leave to issue a writ of possession for the property, and costs.
On 3 August 2020, the wife sought, in what was then the Family Court of Australia, an order for the occupation of the Suburb C property to the exclusion of the husband. On 18 August 2020, the husband filed a Response to an Application in a Case seeking orders for his sole occupation of the Suburb C property and an interim property payment from the wife of $392,442.
On 27 August 2020, orders were made on a defended basis by Rees J, pending further order, for the husband to have sole occupation of the Suburb C property, and for the wife to pay the husband $200,000 by way of interim property settlement. The wife says, and I accept, that at a later unknown date the husband’s current partner, Ms SS, also commenced to reside in the Suburb C property.
Access to superannuation
In July 2019, $710,030 was withdrawn from the bank account of the parties M Super Fund. In April 2020, $665,900 was redeposited into the account. The wife makes complaint as to a loss of $44,130 from the assets of the fund.
In December 2019, the M Super Fund had an investment in TT Investment Fund of $318,000. In March 2020, the wife received an email from UU Holdings Limited, the fund manager of TT Investment Fund, saying: “we have received your redemption request for [TT Investment Fund]”. The wife said she had not made such a request.
In April 2020 the redemption of investment with TT Investment Fund, in the sum of $278,360 was returned to the fund, however $23,669 was “missing.” While the evidence in the wife’s affidavit implies the husband either directly or directly obtained the benefit of the “missing” funds, such finding cannot be safely made on the evidence, leading to no finding made to that effect on this subject matter.
On 5 May 2021, the husband filed an Application in a Case in which he sought the sale of the Suburb D property with the proceeds of sale to be held on trust for him, for his entitlement in the M Super Fund to be paid to him in full, and that following compliance, for his interest in L Pty Ltd ATF M Super Fund be transferred solely to the wife. The wife opposed that application. It was heard on 19 and 23 July 2021. The husband’s relief for the sale of the Suburb D property was discontinued.
On 6 August 2021, Henderson J made orders on a defended basis releasing the husband’s full entitlement in the M Super Fund to him, and that following compliance, his interest in L Pty Ltd ATF M Super Fund to be transferred solely to the wife. The husband thereafter rolled his member entitlement in M Super Fund into his current fund known as “the [Falk] Family Super Fund”. In May 2022, the husband caused the Falk Family Super Fund to purchase an investment property at Town CC for $500,000 using cash and a mortgage advance of $250,000.
On 1 February 2022, Henderson J made orders for the wife to pay the husband’s indemnity costs of $42,108. On 28 February 2022, the wife filed a Notice of Appeal of the costs order. On 24 November 2022, orders were made by the Full Court discharging the costs order made on 1 February 2021, and ordering the wife to pay the husband’s costs as to his Application in a Case filed 5 May 2021 on a party-party basis and of the appeal of $23,792.
In March 2022, the parties engaged in a private mediation and reached an agreement reduced to writing. On 7 March 2022, the husband withdrew his consent to the compromise.
THE LAW
In determining claims for alteration of property interests between married couples, I am required to:
(a)Make findings as to the identity and value of the property (including superannuation interests), liabilities, and financial resources of the parties, or either of them, at the time of the final hearing, and determine the legal and equitable interests of the parties in such property;
(b)Consider, identify, and assess the contributions by the parties to the acquisition, conservation and/or improvement of their property, including financial and non-financial contributions and any contributions to the welfare of the family before, during and after the relationship came to an end;
(c)After consideration of altering the interests in the property of the parties on the basis of contributions, to consider whether there should be any further adjustment to either of the parties on account of the matters set out in s 79(4)(d)–(g) of the Act, including any relevant considerations under s 75(2); and
(d)Ensure that any order made is just and equitable.
Identifying the property of the parties
The wife’s balance sheet identifying her contentions as to the property of the parties was marked as Exhibit 9. She abandoned some items recorded in Exhibit 9 during the hearing. I find the property of the parties as at the date of the hearing to be:
Ownership Description Wife’s Value ($) Determined Value ($) ASSETS
1
Wife B Street, Suburb C 1,150,000 1,150,000 2 Husband AA Street, Suburb D 7,000,000 7,000,000 3 Husband O Street, Suburb E 1,075,000 1,075,000 4 Wife Motor Vehicle 3 15,000 15,000 5 Husband Motor Vehicle 2 600,000 600,000 6 Husband Motor Vehicle 1 50,000 50,000 7-14 Wife Bank accounts 53,206 53,206 16-19 Husband Bank accounts 53,046 53,046 15, 20, 21, 22 Joint Bank accounts 18 18 35 Husband Shares –various companies 11,195 11,195 36 Wife Shares 10,518 10,518 37 Joint Artwork 53,215 53,215 38 Wife “[…]” painting in wife’s possession 1,100 1,100 39 Husband Contents of Suburb D and Suburb C properties 8,750 8,750 40 Wife Household contents (located at wife’s residence) 29,790 29,790 41 Wife Chattels held in storage by wife 65,255 65,255 46 Husband Costs payable to husband by QQ Lawyers 242,395 0 47 Wife Funds in DFLM (wife’s current solicitors) Trust Account 43,141 43,141 Total 10,461,629 10,219,234 ADDBACKS Ownership Description Wife’s value ($) Determined Value ($) 48 Wife Legal fees to be paid by the wife in family law proceedings 602,243 602,243 49 Husband Legal fees paid by husband in family law proceedings 699,197 699,197 51 Husband Interim partial property settlement order of Justice Rees 65,000 0 52 Husband Cash withdrawn from NAB …66 between 19 January 2020 to 24 March 2020 52,500 0 53 Husband Jewellery gifted to Ms SS 185,000 0 Total 1,603,940 1,301,440 Ownership Description Wife’s Value ($) Determined value ($) LIABILITIES 58 Husband NAB mortgage secured over the Suburb D property 1,534,798 1,534,798 59 Husband CGT Payable on the sale of the Suburb D property 706,274 0 60 Husband VV Finance 183,315 183,315 61 Wife WW Finance 300,000 300,000 Total 2,724,387 2,018,113 ASSETS LESS LIABILITIES – NET NON SUPERANNAUTION PROPERTY $9,502,561 SUPERANNUATION Member Name of Fund Wife’s Value ($) Determined value ($) 62 Husband Falk Family Super Fund 493,071 493,071 63 Wife M Super Fund 84,072 84,072 64 Wife XX Superannuation Fund 10,183 10,183 Total 587,326 587,326 TOTAL SUPERANNAUTION AND NON SUPERANNAUTION PROPERTY $10,089,887 Items 1, 2 and 3 – real properties
As opined by the single real property valuation expert, Mr FF.
Items 4 – 6, 15 – 22, 35, 37 – 40, 49, 58 60, and 62 – 64
As agreed between the parties – see wife’s contention; husband’s admissions in Exhibit 5.
Items 7 to 14 – the wife’s bank accounts
As recorded in the wife’s financial statement.
Item 36 – the wife’s shares
As recorded in the wife’s financial statement; husband in Exhibit 5.
Item 41- chattels held by the wife in storage
As opined by the single expert valuer (Exhibit 12).
Item 46 – costs payable to husband by QQ Lawyers
The husband instructed QQ Lawyers in these proceedings. Pursuant to a costs agreement, QQ Lawyers appointed a manager and receiver to the husband’s real property to recover their costs. The husband commenced proceedings in the Supreme Court of NSW to restrain QQ Lawyers and the manager and receiver from dealing with the husband’s real property. An injunctive order made in that forum in mid-2020 preserving the status quo pending determination of the costs dispute between the husband and QQ Lawyers. That Supreme Court litigation is yet to be concluded.
The costs rendered by QQ Lawyers were assessed in mid-2021. The assessor determined that QQ Lawyers’ costs were reduced such that they would be required to repay to the husband $198,730. QQ Lawyers applied to review that cost assessment. Reasons on review were delivered mid-2022, determining that QQ Lawyers pay to the husband $239,140. In late 2022, QQ Lawyers appealed from the cost assessment review to the District Court. That appeal litigation is also yet to be concluded.
While the husband currently has the benefit of the costs assessment review, there is no evidence as to the likely outcome of the District Court appeal and any costs order that may follow, or as to the likely outcome of the Supreme Court proceedings and any costs determination arising therefrom.
For the reasons that follow, the husband’s paid legal fees in these proceedings will be notionally added back at Item 49. Implicitly, this includes the value of fees paid to QQ Lawyers. There is no evidence as to QQ Lawyers’ costs as paid being incurred for work other than undertaken for the purposes of these proceedings. To include Item 46 as an add back in addition to Item 49 would occasion a double counting. If this conclusion is in error, there uncertainty as to what the final wash up will be as to the value of what the husband might recover from costs paid, and as to any costs determinations in both the District Court and the Supreme Court litigation. It would be unsafe to decide as to whether the husband will receive the value of the review cost assessment, or as to the impact on that value of the final determinations of the Supreme and District Court proceedings, or as to the costs recovered from, or payable because of, each of those proceedings.
The addback of the item is rejected.
Item 47 – wife’s funds in DFLM Trust Account
See wife’s costs notice filed 26 February 2024 (Exhibit 10).
Addbacks generally
The Full Court in AJO & GRO (2005) FLC 93-218 identified that there are three categories where it may be appropriate to notionally addback an item of expenditure, being:
(a)Where the parties have expended money on legal fees: DJM & JLM (1998) FLC 92-816 at 85,262;
(b)Where there has been a premature distribution of matrimonial assets: Townsend & Townsend (1995) FLC 92-569 (“Townsend”)at 81,654; and
(c)In the circumstances outlined by Baker J in Kowaliw and Kowaliw (1981) FLC 91-092 at 76,644, including: “where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets”; or “where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value”.
The “concept of adding monies reasonably disposed of back into the pool ought to be the exception rather than the rule” (Townsend at [46], confirmed in NHC & RCH (2004) FLC 93-204). Parties are entitled to reasonably conduct their affairs post-separation in a manner that is consistent with them getting on with their lives (Gollings & Scott (2007) FLC 93-319 at [69]). The Full Court has indicated in circumstances where a party has provided some account of post-separation expenditure it is not incumbent or realistic to expect that they should provide a precise audit as to every item of post-separation expenditure (Edgehill & Edgehill [2007] FamCA 1102 at [60]). In Barrett & Winnie (2022) FLC 94-093 the Full Court accepted that it fell to the party who had benefited from a premature distribution to explain how funds had been applied, and that a failure to provide a satisfactory explanation could result in funds being notionally added back.
The Full Court in Bevan & Bevan (2013) FLC 93-545 analysed the concepts of notionally adding back property to a pool of assets when it no longer existed. It is important to carefully consider the evidence surrounding the disposal of property, and its importance to the property adjustment enquiry, so to ensure a just and equitable outcome. This was reinforced in Trevi & Trevi [2018] FamCAFC 173 (“Trevi & Trevi”) at [28] – [29] where the Full Court noted that it has been confirmed by earlier decisions of the Full Court that adding back does not necessarily occur whenever “a party has expended money realised from the disposition of assets that existed as at the date of separation”, the Full Court describing such a proposition as “unduly simplistic”. An important parallel proposition is that the parties do not “go into a state of suspended economic animation” after separation. Thus, reasonably incurred expenditure does not usually come within accepted categories of addback.
In Trevi & Trevi the Full Court confirmed that “adding back” is a discretionary exercise. When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity require it. In cases that are not “exceptional” justice and equity can be achieved, not by adding back, but by the exercise of a different discretion – usually by taking up the same as a relevant s 75(2) factor. Indeed, it has been said that the latter is “a course which is, perhaps, technically more correct” than adding back to the list of existing interests in property.
Items 48, 49, 60 and 61
In circumstances where the expenditure of each party on legal fees in these proceedings falls within one of the “clear” categories of addbacks as set out in AJO & GRO, being money or property that existed at separation and of which both parties had an interest in, it shall be included as an addback on the balance sheet. Similar considerations apply for liabilities that exist at the date of trial that have funded paid legal fees.
Items 48 and 49 will be added back and included. The liabilities relating to same, being Items 60 and 61, will be included.
Item 51
The wife relied on paragraph 318 of the husband’s trial affidavit to support this addback. It read as to the husband’s explanation of the use and application of the interim or partial property settlement, sourced initially from the $1,000,000 withdrawn by the wife from the joint account of the parties at separation:
On 27 August 2020, Orders were made for [the wife] to pay me the sum of $200,000 by way of partial property settlement, I have spent the entirety of these funds as follows:-
(a) Legal fees paid to [YY Lawyers] $100,000
(b) Legal fees paid to [ZZ Lawyers] $25,000
(c) Repayment of loan to [Mr J] $44,000
(d) Legal fees paid to [AD Lawyers], my solicitor acting in relation to claims I am pursuant against [QQ Lawyers] $10,000
(e)Accounting fees paid to [NN Financial Services] $21,000
The application of funds applied by the husband to pay legal costs of these proceedings have been added back at Item 49. The gravamen of this asserted addback of $65,000 is a combination of a repayment of a loan obtained from Mr J, the accountant, of $44,000, and payment of accounting fees of $21,000. The wife adduced evidence given by the husband in his trial affidavit that the loan from the accountant was applied to pay YY Lawyers, who acted for the husband in these proceedings (husband’s affidavit paragraph 317). The application of these funds have been added back Item 49. The payment of accounting fees is not exceptional. It has an overall tenor of reasonable expenditure. The addback of this item is rejected.
Item 52
The wife relied on paragraph 299 of the husband’s trial affidavit to support this addback. It read:
297.Whilst I was in hospital, cash withdrawals and online banking transactions were conducted in relation to my accounts totally $293,416.35.
298.Exhibited and marked “[F] 63” is a letter from [ZZ Lawyers] to DFLM dated 28 August 2023 providing disclosure in relation to those transactions.
299. By way of summary, those transactions were as follows:-
(a) $200,000 paid to [QQ Lawyers] by way of legal fees;
(b) $52,500 cash withdrawn by my son, [Mr S]. I have not sought repayment of those funds from [Mr S] in circumstances where, when he withdrew the funds, he needed to secure alternate accommodation to the [Suburb C] property and needed to visit me in hospital in [Town W];
(c)$11,327 paid from the loan account relating to the mortgage secured over [Suburb D] to my NAB account […82];
(d) $24,329 paid to my NAB credit card […66].
In the circumstances identified in the husband’s evidence, it is not exceptional for the husband to allow provision for Mr S as identified in paragraph 299(b). There is no evidence that the husband authorised, while hospitalised, Mr S to make the withdrawals from his account or that Mr S could repatriate the monies to the husband if demand was made. The add back is rejected.
Item 53
The wife relied on paragraph 313(b) of the husband’s trial affidavit to support this addback (see [40]).
It is not exceptional, in and of itself, that the husband had purchased jewellery, gifting it to his partner in recognition for her care of him. The evidence establishes his was health was significantly compromised by way of his medical condition. The evidence further establishes that the husband’s partner met some of his medical and travel costs. The item, albeit of significant value, will not be added back. It will be taken into account as the property of his partner in the adjustment to the contribution findings.
Item 59 – CGT payable on the sale of the Suburb D property
I accept the evidence of the single expert Mr GG and find as to the fact and quantum of CGT payable by the husband should there be a sale of the Suburb D property. The wife’s relief is for payment of a capital sum. It is only in default of payment that she seeks a sale of the Suburb D property. There is no evidence that the husband is unable to source or raise funds to pay any capital sum as is just and equitable. The husband may elect to liquidate property other than the Suburb D property to pay any capital sum to the wife. I do not accept that the evidence adduced at trial enables a finding that the disposal of the Suburb D property is likely to occur in the short or immediate future (see Rosati & Rosati (1998) FLC 92-555). The item will not be included as a liability but will be taken into account in the adjustment to the contribution findings.
Item 61 – WW Finance
See the wife’s costs notice filed 26 February 2024, as agreed by the husband in Exhibit 5.
IS IT JUST AND EQUITABLE TO ADJUST PROPERTY?
In Stanford & Stanford (2012) 247 CLR 108 the High Court observed that it is necessary for me to be satisfied that justice and equity will be achieved as part of the adjustment process pursuant to s 79 of the Act. The requirements identified in the High Court are readily satisfied in this matter having regard to:
(a)The long period of the relationship of the parties;
(b)The joining of the financial resources of the parties throughout the relationship;
(c)The parties relationship having broken down and them now living apart;
(d)The concession of each party as to property being adjusted to one another; and
(e)The necessity to determine the dispute as to the husband living in the Suburb C property, of which the wife is the legal registered proprietor.
The wife adopted a single pool approach as to the adjustment to superannuation and non‑superannuation property. Having regard to age of the parties and the husband asserting in the proceedings that he is retired, it is just and equitable to approach s 79 enquiry based on a single pool of superannuation and non-superannuation property.
CONTRIBUTIONS
I accept and find the retrospective values of the Suburb C, Suburb D and Suburb E properties at cohabitation as opined by the single expert valuer, Mr FF. I find that at the commencement of cohabitation:
(a)The wife directly contributed:
(i)The Suburb C property, valued at $800,000 less a mortgage of $130,150; and
(ii)Superannuation entitlements. The wife asserted it to have a value of $80,000. She did not adduce evidence to ground that opinion.
(b)The husband directly contributed:
(i)The Suburb D property, valued at $3,600,000 less a mortgage of an unknown sum;
(ii)The Suburb E property, valued at $470,000 less a mortgage of $535,000;
(iii)Motor Vehicle 4, valued at $300,000;
(iv)Cash savings with an unknown value;
(v)AC Holdings shares acquired in 2007 held in escrow until 30 July 2010. The shares were valued at $711,137 on 10 May 2011;
(vi)Furniture and contents with an unknown value; and
(vii)Superannuation entitlements of unknown value.
These direct financial contributions of each of the parties attract significant weight when regard is had to the use and application of that property (Pierce v Pierce (1999) FLC 92-844). The husbands motor vehicle and his shares had a combined value of around $1,000,000. The Suburb C, Suburb D, and Suburb E properties, as existed at cohabitation, remain in specie as at the date of the trial. The Suburb E property was the subject of tenancies from cohabitation to separation and for most period since separation. The Suburb D property was tenanted from 2011 until the date of the trial. The Suburb C property was the subject of a tenancy from the commencement of cohabitation to 28 February 2017, at which time the husband commenced paying the mortgage secured over that property until he discharged it in March 2019.
The rental payments received during the marriage from each of the properties were pooled into a joint account of the parties and applied by the wife to meet the mortgages and the outgoings for each of the three properties. The direct financial contribution of each of the pre-relationship properties of each the parties coupled with the other direct initial financial contributions of the husband significantly weigh in his favour.
Shortly prior to cohabitation the wife was employed as a manager earing $120,000 per annum. At cohabitation the husband was employed as a senior executive earning $244,413 per annum.
Throughout the relationship, the husband was the primary wage-earner in the relationship. His income is recorded earlier in these reasons. In the period between 2015 and 2018 the wife was employed as the husband’s assistant in Country F receiving $40,000 per annum.
The wife said, and I accept that, throughout the relationship she was responsible for:
(a)The management of the relocations of the parties.
(b)Performing all cleaning, washing, cooking, and undertaking general maintenance of their residences. The wife conceded during the last year that the parties lived in Country F, “a helper” was employed.
(c)The management of the financial affairs of the parties, including managing the payment of the mortgages and outgoings for the Suburb D, Suburb E, and Suburb C properties.
(d)Assisting the husband with his personal affairs.
I accept and find, as the wife submitted, that her homemaking and personal assistance facilitated the husband “to flourish in and focus solely on his career as a senior executive of global corporations” achieving significant income for the household. These factors weigh in her favour.
The wife contended that the husband created a “sustained pattern of coercive control and sexual violence” leading to her contributions being made significantly more arduous than they ought to have been such that they ought to be afforded greater weight (Kennon v Kennon (1997) FLC 92-757). The wife bears the onus to establish on the evidence to the requisite degree the facts and circumstances of the course of conduct subject to complaint and the nexus, either directly or by way of inference, as to how that conduct made her made her contributions significantly more arduous.
The conduct of the husband centred upon the terms of the parties sexual or intimate relationship between 2013 and separation, expanding to one instance of what the wife referred to as “physical violence” in March 2019, immediately preceding the separation, implicitly, as part of a sexual exchange when the husband. She said that the husband “repeatedly hit me […]. I did not consent to this and asked him to stop but he wouldn’t. I suffered significant bruises […].”
The wife submitted that the behaviour of the husband was coercive and controlling. This included the husband introducing other sexual persons into the marriage in intimate exchanges between he and the wife. It also included inviting these persons to dinners, theatre concerts, and holidays. The wife contends the coercion of the husband was by way of him “getting upset or having a tantrum if she was “not comfortable”, he saying she was stopping him from “being happy”. In her affidavit the wife said she did “not get along with all these persons”. Her case outline records “when the wife recorded her objection to some (but not all) of these third parties”. I find that on an unspecified number of the occasions subject of complaint there was a consensual aspect to the wife’s engagement in these activities with these other persons.
Upon the parties moving to Country F in 2015, the wife says, and I accept, that the husband engaged in casual sex with other people. The tenor of her evidence was that she may not have been, on all occasions, engaged in these encounters. She says, and I accept, that these encounters after 2015 occurred on a weekly basis, and that she booked travel for the husband and his various companions and “managed the logistics”. She said that she calculated, and I accept, that the husband spent $135,000 over a period of 2016 – 2019, being in the range of $33,750 per annum, for sex workers from websites. The wife’s evidence was that the husband’s conduct made he feel that she was constantly “walking on eggshells” around the husband and felt “like a sort of prisoner”. She said she was “the target of abuse” however she did not provide particulars or context. She said the husband would “constantly threaten” to leave her, again absent particularity and context.
The wife gave broad and summary evidence, absent any particularity, as to the husband “drinking heavily and taking [an illicit substance] regularly”. She did not particularise how much he drank or consumed, nor did she particularise its frequency save on a few occasions when he “drank all day until he blacked out”.
The wife submitted that the husband imposed on her “a raft of coercive and controlling rules”. By way of example, a written tripartite agreement drafted by the husband and including the wife and a person identified as “[Ms AB]” was exhibited to her affidavit. It recorded a set of rules and sanctions or penalties for the parties to the agreement.
The wife contended “putting together” specific events, including the way in which the parties governed themselves with Ms AB, enabled the drawing of a reasonable inference that the wife’s contributions were made more arduous than they ought to have been. I do not accept that submission. The draft document including Ms AB was not signed. There was no evidence adduced by the wife to demonstrate that the document was entered, or that the rules and penalties recorded in the draft were progressed or imposed, or its terms implemented by the parties.
The distinction between coercive and controlling sexual conduct and consensual sexual exchanges within an intimate dynamic uncloaks difficulties in evaluation, especially by way of inference. The terms and boundaries of intimate exchanges between parties differ from relationship to relationship. As was identified by the Full Court in Carter & Wilson (2023) FLC 94-129, the determination of what constitutes behaviour “that coerces or controls” must be considered in the context in which the conduct occurred. The mere fact that the husband’s conduct could be identified as sexually coercive and controlling does not, in and of itself, establish to the requisite degree that it was. Context is all important in reasonably grounding the finding promoted by the wife.
The evidence to ground the finding as sought by the wife could have been adduced with particularity as to time, content, frequency, and context, including identifying those occasions when she consensually engaged, or engaged absent apparent objection, to sexual activities with the husband and other persons. Her failure to adduce that evidence, when it was available to her, was not explained. The wife had the capacity to adduce evidence as to the frequency, quantity, and impact of the husband’s use of alcohol and an illicit substance. She did not materially do so. The wife carries the onus to ground from the evidence the finding of fact she sought, being as to a sustained pattern of coercive control and sexual violence. She has failed to do so.
Even if findings could be made as to the incidents of the husband’s coercive and controlling behaviour as alleged by the wife, there was a deficiency in the evidence as to how those incidents impacted upon the wife’s contributions. I am not satisfied that the wife has discharged her evidentiary burden to establish that her contributions were rendered more onerous by the conduct of the husband.
Findings have been made earlier in these reasons as to the wife’s use and application of part of the $1,000,000 withdrawn from the parties joint Q Bank account at separation, being reasonably expended or being reflected in items in the balance sheet.
The wife identifies in her Case Outline the husband drawing $348,191 and $308,939 from the mortgage secured over the Suburb D property post-separation. The asserted dates of the withdrawals are not identified. Her affidavit does not adduce evidence of these matters. The wife relied on evidence adduced by the husband in paragraphs of his affidavit tendered into evidence (Exhibit 6). That evidence is:
315.At the date of separation, on 10 April 2019, my loan account with NAB account number […31] secured over the [Suburb D] Property (“the [Suburb D] Loan”) had a balance of $852,000. Since separation, $348,191.43 has been drawn from that loan account to make the following payments:-
(a) Legal fees paid to [QQ Lawyers] $200,000
(b) Legal fees paid to [YY Lawyers] $3,850
(c)Payment to joint NAB account […85] to restore the account to a credit balance after it was overdrawn $3,210
(d)Payment to […] Credit Card […00] to pay for personal expenses which both [the wife] and I had charged to that card ([the wife] held a supplementary credit card with that account) $10,000
(e)Personal expenses $18,466
(f)Payment towards purchase of Motor Vehicle 1 $30,000
(g) Payment to [AD Lawyers] $20,000
(h)Interest accrued on the loan $62,891
Exhibited and marked “[F]67” is a schedule setting out details of the above transactions.
316.As deposed to earlier in my affidavit, between July 2019 and March 2020, I accessed $44,035.48 from my interest in the [M Super Fund] fund to pay for the following:-
(a) Accountant’s fees $16,530.88
(b) Land tax $11,004.60
(c) Legal fees paid to [YY Lawyers] trust account $16,500.00
317. On 15 May 2020 I borrowed $22,000 from my accountant, [Mr J] and on 5 August 2020 I borrowed a further $20,000 from [Mr J]. These funds were paid to [YY Lawyers’] trust account on account of my legal fees and disbursements.
318.On 27 August 2020, Orders were made for [the wife] to pay me the sum of $200,000 by way of partial property settlement. I have spent the entirety of these funds as follows:-
(a) Legal fees paid to [YY Lawyers] $100,000
(b) Legal fees paid to [ZZ Lawyers] $25,000
(c) Repayment of loan to [Mr J] $44,000
(d)Legal fees paid to [AD Lawyers], my solicitor acting in relation to claims I am pursuant against [QQ Lawyers] $10,000
(e)Accounting fees paid to [NN Financial Services] $21,000
Exhibited and marked “[F]68” is a schedule setting out details of the above transactions.
319.On 16 February 2021, I received $30,093.24, being my Superannuation accrued in [Country F] with [Z Financial Services]. I used those funds to put towards the purchase of my jeep on 10 March 2021. A copy of the bank statement for my NAB […83] account for the period 30 January 2021 to 31 March 2021 showing those transactions is exhibited at [F] 79.
320.On 22 February 2021, I was refunded the sum of $19,5000.23 from the funds held in the [YY Lawyers] Trust account. Those funds incorporated the $16,500 paid to them as deposed to above. I subsequently spent the $16,500 as follows:-
(a) Payment of $5,000 to [ZZ Lawyers] for legal fees on 24 March 2021
(b) Payment of $5,00 to [AD lawyers] for legal fees on 26 March 2021
(c) The balance of $6,500 on living expenses.
Exhibited and marked “[F] 69” are bank statements for my NAB account […83] for the period from 30 January 2021 to 31 March 2021 showing these transactions.
321. On 1 April 2021, I borrowed $107,000 from [AE Fund]. After paying for the lender’s legal costs ($4,000), establishment fees ($3,000) and interest in advance ($5,350) I received $94,650 into my NAB account […83]. I utilised the $94,650 made available to me as follows:-
(a) Legal Fees paid to [ZZ Lawyers] $30,000
(b) Legal fees paid to [AD Lawyers] $8,000
(c)Servicing [Motor Vehicle 3] to ensure its compliance with Australian safety regulations $6,648.18
(d)Living expenses $49,990.82
322.Pursuant to the Orders of 6 August 2023, I received cash of $856,925.60 from the [M Super Fund]. I rolled these funds into my new self-managed super fund the [Falk] Family Superannuation Fund. I have utilised those funds as follows:-
(a)Repayment of [AE Fund] Loan $122,350.00
(b) Investment in Shares through the [Falk] Family Superannuation Fund $126,999.56
(c)Purchase of Town CC Property through the Falk Family Superannuation Fund $300,619.69
(d)Funds spend importing Motor Vehicle 3 to Australia, repairing and maintaining it and storing it $87,307.40
(e)Living expenses $45,507.44
(f)Legal Fees paid to [ZZ Lawyers] $65,175.00
(g)Legal Fees paid to [AD Lawyers] $21,595.00
(h)Storage fees for artwork $5,990.44
(i)Accountant’s fees paid to [NN Financial Services] $56,015.00
(j)Superfund expenses $16,533.10
(k)Funds invested in relation to [motor vehicle] $2,500.00
(l)Transaction, the purpose of which I am unaware and in relation to which I am making further enquiries with NAB $16,297.00
Exhibited and marked “[F] 70” is a schedule summarising the above transactions.
323.A friend of mine, […], owns a [motor vehicle] which has fallen into a state of disrepair. In April 2022, I reached an agreement with [him] whereby I would pay for the costs of repairing, maintaining and storing the [vehicle] on the basis that when the car is sold these costs would be repaid to me and I would receive 10% of the sale price.
324.During the relationship I borrowed funds from NAB secured against the [Suburb D] property and on lent those funds to my friend, [Mr K]. I opened NAB loan account number […00] for that purpose. Between […] August 2021 and […] September 2021, [Mr K] repaid his loan and I brought the balance of the Loan account with NAB to Nil. Since that time, I have withdrawn $308,938.55 from that account and utilised those funds as follows:-
(a) Legal fees paid to [AD Lawyers] $37,650.90
(b) Legal fees paid to [ZZ Lawyers] $77,000.00
(c)Funds paid to [Ms SS] whilst residing with her in [Country F] in December 2021 and January 2022 $30,050.00
(d)Living expenses $120,419.66
(e)Land tax $8,980.54
(f)Payment to […], which I believe was fraudulent and which I have reported to NAB as such $10,010.00
(g)Transaction, the purpose of which I am unaware and in relation to which I am making further enquiries with NAB $17,000.00
(h)Funds invested in relation to [motor vehicle] $8,000.00
Exhibited and marked “[F] 71” is a schedule summarising the above transactions.
325.In the lead up to and since separation I have had significant health difficulties which culminated in my being admitted to hospital [in early 2020] after I suffered from [a medical condition]. Since separation, my health expenses have been significant, amounting to approximately $47,000. This does not include my health expenses while residing in [Country F] which were paid for directly by [Ms SS]. [Ms SS] was reimbursed for these costs from the $10,000 paid to her per month. A summary of my health expenses is exhibited and marked “[F] 72”
(Emphasis in original)
Some of the drawings on the mortgage of the Suburb D property are reflected in the balance sheet by way of paid legal fees in respect of these proceedings, or in other items, such as the husband’s current Motor Vehicle 1. Other sums were applied to fund living expenses, the husband not being in employment. Monies sourced from the husband’s member entitlement in M Super Fund were applied to the husband’s current superannuation fund to meet the cost of acquisition the acquisition of real property and shares by that fund that also are reflected as items in the balance sheet. Other funds were applied to servicing Motor Vehicle 3, also being an item in the balance sheet, or in meeting living expenses.
No submission was made that the evidence of the husband in his affidavit as adduced by the wife was inherently unbelievable or ought not to be accepted. I find that the husband has provided an adequate accounting of his use and application of capital drawn from the mortgage secured on the Suburb D property and his superannuation member entitlement post-separation. Of the funds drawn from the Suburb D mortgage post-separation, the husband’s evidence is that he has spent in the range of $152,000 on living and personal expenses, credit cards and restoring overdrawn accounts, being an average of around $30,000 annually. By comparison, the wife’s expenditure of capital for her living expenses is not dissimilar, not including her requirement to fund her rent.
The wife has not established on the evidence the husband inappropriately receiving or applying his superannuation property post-separation.
The wife makes other complaints as to the husband’s post-separation expenditure and conduct. The $475,000 retained by the husband from the joint bank account at separation is either reflected in paid legal fees, being an item in the balance sheet, or has been the subject of reasonable expenditure. Not dissimilar findings have been made as to the husband’s use and application of the $200,000 he received by way of interim property settlement.
I accept the tenor of the wife’s submission as to the husband having access to significant property of the parties by way of cash since separation of a greater quantum than that accessed by the wife. This factor weighs in favour of the wife but is tempered on consideration of the reflection of some of that property in the current balance sheet, and the husband’s use of that property for his reasonable living expenses over the close to five-year period since separation.
Since separation, the wife contends, and I accept, that she has been solely responsible for and paid the outgoings in relation to the Suburb C property. The husband has lived rent-free at Suburb C since a time commencing in the period between April and August 2020. The current outgoings paid by the wife for rates and strata fees are $142 per week. In addition, the wife has met the cost of her own rent since separation, from either the $1,000,000 she accessed at separation, or in mor recent times a combination of those funds and her income. It is currently $675 per week. The wife has paid the cost of storage of the husband’s personal items since the parties moved from Country F from the same sources. It is currently paid at a rate of $62 per week. During the period the husband has occupied the Suburb C property at no cost to him, he additionally retained the benefit of rental income from both the Suburb D and Suburb E properties. The wife did not particularise the net value of this benefit after payment of mortgages or other outgoings on his real properties in the evidence. These post-separation factors weigh in favour of the wife.
Conclusion as to contributions
The wife sought a contribution finding of 37.5 per cent in her favour of the property of the parties.
The Full Court in Horrigan & Horrigan [2020] FamCAFC 25 emphasised that the proper approach to the assessment of contributions is:
35 …well established that an assessment of contributions is not a mathematical exercise, but rather involves the identification and assessment of all of the parties respective contributions, in a holistic way across the course of the relationship and in the post separation period to the point of assessment.
As to that holistic assessment, all contributions must be weighed collectively and not by way of compartmentalising one against others or the remainder. Taking into account all the contributions identified in these reasons, the contributions are assessed as 20 per cent to the wife and 80 per cent to the husband. This will see the wife receiving property to the value of $2,017,977 and the husband receiving property to the value of $8,071,910.
ADJUSTMENT TO THE CONTRIBUTION FINDING
The wife is 65 years of age and reports that she is in fair health. I so find. She engages with a psychologist for support from time to time.
The wife obtained casual employment commencing from late 2020, and full-time work from late 2021. She is currently an assistant earning $110,000 per annum plus superannuation. I accept there is some uncertainty as to how long she will continue to work having regard to her age.
The husband is 60 years of age. Professor V opined, in October 2020, that the husband had “voluntarily rehabilitated”. He provided a diagnosis and opined that he does not need surgery “at the moment”, and that he should be reviewed again in six months. In March 2021, the Professor reviewed the husband and opined that he “just requires regular review now”, and that he does not require any tests apart from his routine medication. In respect of the husband’s life expectancy, Professor V said:
Although [the husband] was on death’s door (so to speak ) in early 2020, he has made a remarkable recovery and he now ,as mentioned , has [a less serious illness] in place. I would expect that he will have reduced life expectancy because of all this but his mortality over the next five years would only be in the vicinity of 5 to 10% provided he [complies with medical instructions].
(As per the original).
I find that the prognosis of the husband after his medical condition is generally positive.
The husband has not been employed since 2018. There is no evidence as to him being likely to undertake employment in the future. The evidence of the wife as to his capacity for future employment is speculative. It attracts little weight.
The contribution findings adjust significantly greater property to the husband compared to that of the wife. This factor attracts weight in the wife’s favour.
The husband lives with his de facto partner, Ms SS, who is 37 years old, has a degree, and is earning $200,000 per annum from her employment. She pays $2,000 per month towards her and the husband’s living expenses. He has indirect benefits by way of her property, including but not limited to, the jewellery he gifted to Ms SS acquired for $185,000. This factor weighs in favour of the wife. The wife has not re-partnered.
The husband’s Suburb D property has a current impregnated capital gains taxation liability of $706,274 that is not crystallised. This factor weighs in favour of the husband.
The wife was out of the workforce at the request of the husband from 2008 until late 2021. The role undertaken by the wife during the marriage has impacted on her current income and income earning capacity.
Each party’s superannuation entitlements are considered in a single pool of property.
The wife’s complaints as to that the husbands acted unreasonably or been malicious in the conduct of the proceedings does not attract weight. There is no evidence as to the value of additional costs incurred by the wife arising from this contended conduct. It may be a relevant consideration as to costs.
The wife’s contentions as to waste by way of consumption of alcohol and illicit drugs are difficult to attribute weight, being absent particularity as identified earlier in these reasons including the quantum expended. The submission as to waste by way of expenditure on websites for sexual services fails to consider the wife’s joinder on occasions to the product of those activities and the absence of particularity as to when this occurred over her objection. It is difficult to identify from the wife’s evidence what portion of this expenditure occasioned waste and what portion did not, and hence the weight to be afforded to this factor is problematic.
The wife conceded during the hearing that her complaints as to the husband’s disclosure did not ground a finding as to a failure to identify the property or income of the parties of the character identified in longstanding authorities such as Weir and Weir (1993) FLC 92-338. The complaint was that the husbands conduct in discharging his obligation of disclosure during the course of the litigation complicated the fact-finding process (see Franklin & Ennis [2019] FamCAFC 91 at [9]). Again, this may be a relevant consideration as to costs.
The wife sought an adjustment to the contribution finding of 4.5 per cent, in circumstances where her contribution finding as sought was achieved. A holistic consideration of the matters raised above, as are relevant, warrants an adjustment from the contribution findings on account of the matters set out in s 79(4)(d)–(g) of the Act in favour of the wife of 5 per cent. By way of cross check, in dollar terms, that equates to $504,494, a differential of $1,008,988.
CONCLUSION – JUSTICE AND EQUITY
The wife sought possession of her Suburb C property and proposes to occupy it. In circumstances where she was the sole registered proprietor of the property at the commencement of the relationship, and where the husband has other real properties, I am satisfied it is just and equitable for the wife to retain the Suburb C property. The wife sought for the husband to be given 14 days to vacate the property. A more reasonable period is 21 days to make removalist arrangements and to implement them. An order will be so made.
In paragraph 165 of the wife’s affidavit, she gives evidence as storing “the husband’s items” brought over from Country F, being those identified at Item 41 in the balance sheet and particularised in the single expert report, being Exhibit 12. She seeks for the husband to retain them save for Item 38, the artwork “[…]”. An order will be made for the wife to transfer to the husband any interest she has in those items and to facilitate the husband achieving access to the items.
Item 37 of the balance sheet is jointly owned artwork. The import of wife’s case is that the artwork is in the husband’s possession. There is no evidence that it is not. The husband at paragraph 327 of his affidavit gives evidence as to meeting storage expenses for “artwork” which forms “part of the matrimonial pool of assets”. The single expert opinion valuing the joint artwork was not placed adduced in evidence. In the circumstances and for the purposes of this determination, the item will be included in the husband’s and an order made facilitating it to the husband insofar as it is necessary.
The wife seeks the value of the joint bank accounts, being Items 15, 20, 21 and 22, total $18. Such order will be made to enable the accounts to be cleared and closed.
Paragraph 10 as sought by the wife in her minute of order will not be made. It purports to release each party from costs obligations. No submissions were made to support the making of such an order.
The wife currently has in her possession or will have:
Ownership Description Determination ($) ASSETS
1
Wife B Street, Suburb C 1,150,000 4 Wife Motor Vehicle 3 15,000 7-14 Wife Bank accounts 53,206 15, 20, 21, 22 Joint Bank accounts 18 36 Wife Shares 10,518 38 Wife “[…]” painting in wife’s possession 1,100 40 Wife Household contents (located at wife’s residence) 29,790 47 Wife Funds in DFLM Trust Account 43,141 Total $1,302,773 ADDBACKS 48 Wife Legal fees to be paid by the wife in family law proceedings 602,243 Total $602,243 LIABILITIES 61 Wife WW Finance 300,000 Total $300,000 TOTAL ASSETS – LIABILITIES $1,605,016 SUPERANNUATION Member Name of Fund Determination ($) 63 Wife M Super Fund 84,072 64 Wife XX Superannuation Fund 10,183 Total $94,255 TOTAL NET SUPERANNUATION + NON-SUPERANNUATION $1,699,271
To achieve $2,522,472 or 25 per cent of the property of the parties, the wife is required to receive an additional $823,201. Hence, to give effect to this adjustment of property, the husband will be required to pay to the wife $823,201.
The husband’s overall entitlement to the property of the parties identified in the balance sheet above of 75 per cent equates to $7,567,415.
Ownership
Description
Determination ($)
ASSETS
2
Husband
AA Street, Suburb D
7,000,000
3
Husband
O Street, Suburb E
1,075,000
5
Husband
Motor Vehicle 2
600,000
6
Husband
Motor Vehicle 1
50,000
16-19
Husband
Bank accounts
53,046
35
Husband
Shares – various companies
11,195
37
Joint
Artwork
53,215
39
Husband
Contents of Suburb D and Suburb C properties
8,750
41
Wife
Chattels held in storage by wife
65,255
Total
$8,916,461
ADDBACKS
49
Husband
Legal fees paid by husband in family law proceedings
699,197
Total
$699,197
LIABILITIES
58
Husband
NAB mortgage secured over the Suburb D property
1,534,798
60
Husband
VV Finance
183,315
Total
$1,718,113
TOTAL ASSETS – LIABILITIES
$7,897,545
SUPERANNUATION
Member
Name of Fund
Determination ($)
62
Husband
Falk Family Super Fund
493,071
Total
$493,071
TOTAL NET SUPERANNUATION + NON-SUPERANNUATION
$8,390,616
The husband accordingly holds property of $8,390,616. To receive 75 per cent of the property of the parties, he ought to achieve $7,567,415. Hence, $823,201 is payable to the wife.
The wife sought that the adjusting sum payable to her be paid within 60 days. She sought in default of such payment, that the husband’s Suburb D property be sold, and on completion of the sale for her to receive a percentage of the proceeds. I find that 90 days is a reasonable period for the husband to consider how he proposes to raise funds to make the cash adjusting payment to the wife. It will permit him sufficient time to liquidate such property as he considers appropriate to source those monies. The wife did not put the husband on notice as to seeking an order for the sale of the Suburb D property in default of him paying any cash adjusting sum. To make such an order could be said to deny the husband procedural fairness, notwithstanding the terms of his final relief sought in Exhibit 8. He provided notice to the wife that he proposed to amend his final relief sought, in his Case Outline, but failed to do so. The order sought for the sale of the Suburb D property in default of payment will be refused. The wife has a raft of remedies available to her by way of enforcement pursuant to ch 11 of the Rules, including seeking the sale of the husband’s real property, should he default in paying her the sum of $823,201. Interest will accrue in favour of the wife payable on the adjusting sum pursuant to the Act at the rate prescribed by the Rules from the date of default. The wife did not identify in submissions any prejudice if the default sale order was not made as sought. Costs incurred on enforcement can be recovered in the determination of that process.
Standing back, I find the distribution of the property of the parties in the terms identified above is appropriate and otherwise just and equitable. Orders will be made accordingly.
I certify that the preceding one hundred and thirty-eight (138) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 28 February 2024
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