Falkner & Candle (No. 2)
[2021] FamCA 247
•29 April 2021
FAMILY COURT OF AUSTRALIA
Falkner & Candle (No. 2) [2021] FamCA 247
File number(s): PAC 623 of 2018 Judgment of: FOSTER J Date of judgment: 29 April 2021 Catchwords: FAMILY LAW – PROPERTY – Property Adjustment – where discussion of applicable principles – where just and equitable to make property orders – where assessment of contributions favouring the wife – where adjustment in favour of husband by reason of s 75(2) considerations –where orders made accordingly. Legislation: Family Law Act 1975 (Cth) ss 75(2), 79, 79(2), 79(4) Cases cited:
Bevan & Bevan [2014] FamCAFC 19
Chapman & Chapman [2014] FamCAFC 91
Farmer & Bramley [2000] FamCA 1615; (2000) FLC 93-060
Falkner & Candle and Anor [2019] FamCA 471
Falkner & Candle [2020] FamCA 246
Horrigan & Horrigan [2020] FamCAFC 25
Kessey & Kessey (1994) FLC 92-495
Stanford & Stanford [2012] HCA 52
Number of paragraphs: 107 Date of hearing: 16 and 17 December 2020 and 6 April 2021 Place: Parramatta Counsel for the Applicant: Mr Gardiner Solicitor for the Applicant: Coleman Greig Lawyers Case Guardian for the Respondent: Mr Bousattout ORDERS
PAC 623 of 2018 BETWEEN: MS FALKNER
Applicant
AND: MR CANDLE
Respondent
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
29 APRIL 2021
THE COURT ORDERS THAT:
1.That the wife pay to the husband or as he may direct in writing the sum of $604,168 less any amount outstanding from the husband to the wife in respect of any costs order together with interest accrued thereon within three months from this date.
2.That within seven days from this date the husband do all acts and things necessary to transfer to the wife his shareholding in C Pty Ltd ACN … and that subsequent to such transfer the wife shall indemnify and keep the husband forever indemnified in respect of any loans owing by the husband to C Pty Ltd and from any liability howsoever arising including any liability to the Australian Taxation Office arising from the trading affairs of C Pty Ltd.
3.That within 14 days from this date the wife cause to be transferred to the husband the shareholding of C Pty Ltd in K Pty Ltd and that subsequent to such transfer the husband indemnify and keep C Pty Ltd forever indemnified in respect of any liability howsoever arising including any liability to the Australian Taxation Office arising from the trading affairs of K Pty Ltd.
4.That the husband and wife shall do all acts and things and sign all documents necessary as and when required in order to give effect to the validity and operation of these orders.
5.If either the husband or wife refuses or neglects to sign or execute and return a document implementing the above orders within seven days of a written request to do so, then a registrar of the Parramatta Registry of the Family Court of Australia is hereby appointed under s 106A of the Family Law Act 1975 to sign and/or execute such document on behalf of the defaulting party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Falkner & Candle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:
On 15 February 2018 the applicant wife filed an Initiating Application seeking property adjustment orders under s 79 of the Family Law Act 1975 (Cth) (“the Act”).
In that application, in summary, the wife sought the following orders:
(a)that the husband do all things necessary to transfer to the wife his shareholding and interest in C Pty Ltd;
(b)that the husband do all things necessary to transfer to the wife his interest in the real estate property at Town D and that concurrently with such transfer the wife do all things necessary to release the husband from the mortgage presently secured over the said property and pay to the husband the sum of $475,000;
(c)that the husband do all things necessary to cause the wife to be released from the mortgage presently secured over the property known as Town B;
(d)that the husband and wife do all things necessary to sell the real estate property L Street, Town M New South Wales and after payment of selling costs and discharge of mortgage the balance be divided equally between the husband and wife;
(e)that the wife do all things necessary to transfer to the husband her shareholding and any interest in K Pty Ltd;
(f)that there be a superannuation splitting order in favour of the husband out of the wife’s interest in the Candle Family Super Fund in the sum of $144,000.
The husband on 29 March 2018 filed a Response to the wife’s Initiating Application. In that Response he sought, in summary, the following orders:
(a)that the wife pay to the husband the sum of $2,680,000 or any other amount determined by the court to make payment to the husband of 50 per cent of the net assets of the parties and in consideration of that payment the husband transfer to the wife his shareholding and other interest in C Pty Ltd;
(b)that the husband transfer to the wife his interest in the real estate property Town D and that concurrently with such transfer the wife do all things necessary to release the husband from the mortgage presently secured over the said property and pay to the husband the sum of $415,000;
(c)that concurrently with the payment in (a) above the husband do all things necessary to cause the wife to be released from the mortgage presently secured over the property known as Town B;
(d)that the husband and wife do all things necessary to sell the real estate property L Street, Town M and after payment of selling costs, discharge of mortgage secured over the said property and discharge of the mortgage secured over the Town N property the balance be divided as to $415,000 to the husband and the balance to the wife;
(e)that in respect of any money or other liability found to be owing by the husband to the husband’s mother Ms Mills that the husband and wife pay such liability equally;
(f)that the parties do all things necessary to transfer motor vehicle 1 registration … to the husband and that the husband thereafter indemnify the wife from all or any liability in relation to the said vehicle;
(g)that the husband and wife do all things necessary to appoint a liquidator to windup K Pty Ltd and that the wife pay any initial payment to be made to the liquidator;
(h)that there be a splitting order as to 50 per cent of the net value of the Candle Family Super Fund in favour of the husband.
Subsequent to the commencement of the proceedings the husband’s mother referred to above was granted leave to intervene in the proceedings and was joined to the proceedings as the second respondent. In her Response filed 20 December 2018 the second respondent sought an order that the husband and wife pay to her the sum of $180,000 together with interest calculated from 30 May 2010 by reason of monies advanced by the second respondent.
Subsequently, the second respondent was removed from the proceedings as a consequence of interim orders that resolved her claim as referred to below.
During the course of the proceedings there had been difficulties with the husband failing to comply with directions and changing legal representatives from time to time. On 16 April 2019 it was noted that there was a prospective application for the appointment of a case guardian for the husband, the husband at that time being an inpatient in a mental health facility.
On 2 July 2019 interim orders were made in the context of an interim application filed by the wife on 5 June 2019 for the sale of the real estate property at Town B. The wife was appointed trustee for sale of the said property and upon sale and discharge of the mortgage encumbrance secured over the property, the balance of proceeds of sale were to be held on trust in a controlled monies account by the wife’s solicitors in the joint names of the parties pending further order or agreement. Otherwise, the husband was ordered to vacate the property not less than 21 days prior to settlement of the sale: Falkner & Candle and Anor [2019] FamCA 471.
Subsequently, the husband was ordered to pay the wife’s costs in the sum of $12,500 arising from the interim application filed 5 June 2019: Falkner & Candle [2020] FamCA 246.
Subsequently on 20 January 2020 further interim orders were made in the context of a further interim application made by the wife. Orders were in the following terms:
THE COURT NOTES THAT FOR THE PURPOSES OF THESE ORDERS
A.“C Pty Ltd”, ACN …: of which:
A.1. The Applicant is the Director;
A.2. The Applicant holds 1 of 2 ordinary shares;
A.3. The First Respondent holds 1 of 2 ordinary shares;
A.4.C Pty Ltd operates a franchise business known as F Company Suburb E/Town P.
B.“The Candle Family Super Fund” means the company known as Candle Family Super Pty Ltd, ACN … of which:
D.1.The Candle Family Super is the Corporate Trustee of the Candle Family Super Fund (which is noted below);
D.2. The Applicant and First Respondent are the Directors;
D.3. The Applicant holds 1 of 2 ordinary shares;
D.4. The First Respondent holds 1 of 2 ordinary shares.
C.“the Candle Family Super Fund” means the self-managed superannuation fund known as Candle Family Super Fund, ABN …, of which the Applicant and First Respondent are the only two members.
D.“the Candle Family Properties” means the company known as Candle Family Properties Pty Ltd ACN … which is the bare trustee for the Suburb Q property (which is noted below), of which:
F.1. The Applicant and First Respondent are the Directors;
F.2. The Applicant holds 1 of 2 ordinary shares;
F.3. The Respondent holds 1 of 2 ordinary shares; and
F.4. The Candle Family Properties does not trade in its own right.
E.“the Loan Agreement” means the Loan Agreement made 17 August 2001 between the First Respondent, Second Respondent and Ms R who is the First Respondent’s former partner. Annexed and marked “A” is a true copy of the Loan Agreement.
F.“the Town B property” means the property situated at and known as Town B in the State of New South Wales and being described in Folio Identifier …, of which the First Respondent is the sole proprietor.
G.“the Suburb Q property” means the property situated at and known as AF Street, Suburb Q in the State of New South Wales and being described in Folio Identifier …, owned by the Candle Family Properties on behalf of The Candle Family Super Fund as Corporate Trustee for the Candle Family Super Fund.
H. “the parties” means the following persons:
J.1. The Applicant, Ms Falkner;
J.2. The First Respondent, Mr Candle; and
J.3. The Second Respondent, Ms Mills.
I.“the Town N property” means the property situated at and known as Town D in the State of New South Wales and being described in Folio Identifier …, of which the Applicant and First Respondent are the joint proprietors.
BY CONSENT IT IS ORDERED:
Final Orders
1. That within 30 days from the date of these Orders, the Applicant shall:
1.1Make a cash payment to the First Respondent totalling $184,000, subject to the obligation in Order 3 below;
1.2Do all acts and things and sign all documents necessary to cause the discharge and/or refinance of the mortgage in favour of F Company held in the joint names of the Applicant and First Respondent and secured over the Town N property into the Applicant’s sole name.
2.That simultaneously with the Applicant complying with her obligations pursuant to Order 1 above, the First Respondent shall do all acts and things and sign all documents necessary to transfer to the Applicant the whole of his right, title and interest in the Town N property and the Applicant shall thereafter be declared the sole owner at law and in equity of the Town N property.
3.That within 30 days from the date of these Orders, the Applicant shall make a cash payment to the Second Respondent totalling $180,000, with an amount totalling $90,000 to be deducted from the payment which the Applicant is required to make to the First Respondent pursuant to Order 1.1 above.
4.Subject to the payment being made pursuant to Order 3 above, the Second Respondent shall vacate the Suburb Q property on or before 25 February 2020.
5.That until such time that the Second Respondent vacates the Suburb Q property pursuant to Order 4 above the following is to occur:
5.1The Second Respondent is to do all acts and things necessary to provide access to the Suburb Q property to any and all tradesman and/or real estate agent/s as arranged by the Applicant, to facilitate the sale process including the undertaking of minor repairs on the Suburb Q property;
5.2That for the purposes of Order 5.1 above, the Applicant is to give the Second Respondent 72 hours’ notice of any access required with such access to occur where practicable between the hours of 9:00am to 5:00pm; and
5.3That the Applicant and First Respondent be restrained from causing painting works and/or replacement of carpet to be undertaken at the Suburb Q property.
6.That the Applicant and/or the First Respondent have liberty to apply on 7 days’ notice to the Second Respondent for the issue of a Writ of Possession in the event the Second Respondent fails to vacate the Suburb Q property pursuant to Order 4 above.
7. That simultaneously upon the Applicant’s compliance with Order 3 above:
7.1the Applicant and First Respondent shall be released from any debt or other liability which is found to be owed or alleged to be owed by the Applicant and the First Respondent to the Second Respondent;
7.2the Second Respondent is hereby restrained and injuncted from pursing any further action against the Applicant and First Respondent in respect of the Loan Agreement or any amounts she alleges is owed pursuant to the Loan Agreement; and
7.3the Applicant and First Respondent, including in their capacities as Directors of The Candle Family Super Fund, such entity being the Corporate Trustee of the Candle Family Super Fund and as members of the Candle Family Super Fund, are hereby restrained and injuncted from pursuing any action against the Second Respondent in respect of the Loan Agreement and/or in relation to her occupying the Suburb Q property.
8.That pending payment by the Applicant to the Second Respondent pursuant to Order 3 above, the Applicant and First Respondent are restrained in their capacities as Directors of The Candle Family Super Fund, such entity being the Corporate Trustee of the Candle Family Super Fund, from causing the sale or transfer of the Suburb Q property.
9.That in the event the Applicant fails to comply with Orders 1 and/or 3 above within a further 14 days from the date of such compliance, the Applicant and First Respondent shall do all acts and things and sign all documents necessary to cause the sale of the Town N property in accordance with the sale provisions contained in Order 10 below, and for the proceeds of sale to be paid in the following manner and priority:
9.1Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;
9.2 Payment of the legal costs on the sale;
9.3In payment to F Company of the amount required to effect a discharge of the mortgage secured over the Town N property;
9.4In payment of the balance of monies owing pursuant to Orders 1.1 and/or 3 above; and
9.5 The balance thereafter to be paid to the Applicant.
10.That subject to the preceding Orders in relation to the sale of any real property as contemplated in Order 9 above, the Applicant and the First Respondent shall give effect to the following conditions of sale in relation to the sale of the Town N property:
10.1The property shall be listed for sale by private treaty with such real estate agent as selected by the Applicant.
10.2The Applicant and the First Respondent shall instruct a conveyancer/solicitor selected by the Applicant to act on the conveyance of the property.
10.3The list price of the property shall be such amount as is agreed between the Applicant and First Respondent and failing agreement within 14 days of the appointment of the agent pursuant to 10.1 above then the list price will be as nominated by the real estate agent appointed to sell the property.
10.4The sale price of the property shall be such amount as is agreed between the Applicant and First Respondent and failing agreement any offer to buy the property that is at least 90% of the list price shall be accepted by the Applicant and First Respondent as the sale price.
10.5The Applicant and First Respondent are to co-operate in every way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer and the Applicant and First Respondent are restrained from doing or saying anything to hinder or prevent a sale being effected.
10.6That upon agreement being reached for sale of the property the Applicant and First Respondent shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the agent or their solicitor.
10.7The contract of sale shall provide for completion within 42 days after the date of the contract.
10.8In the event that the property is not sold by private treaty on or before 6 months from the date of listing then the Applicant and First Respondent shall do all acts and sign all documents as are necessary to sell the property by auction and the following shall apply:
10.8.1The property shall be listed with the agent appointed under 25.1 above for sale by auction within a further 3 months;
10.8.2The Applicant and First Respondent shall execute all documents requested by the auctioneer for sale of the property by auction;
10.8.3The reserve price of the property shall be such amount as is agreed between the Applicant and First Respondent and failing agreement being reached between the Applicant and First Respondent 21 days prior to the auction, then the reserve price shall be nominated by the auctioneer;
10.8.4The Applicant and First Respondent shall each pay to the auctioneer one half of any sums requested for advertising or auction expenses and if one of the Applicant and First Respondent pays all of the expenses, that party shall be reimbursed from the proceeds of sale in respect of one half of such payments before any division between the Applicant and First Respondent;
10.8.5The Applicant and First Respondent shall give such instructions as are necessary to a solicitor to prepare a contract of sale and provide it to the auctioneer prior to the auction no later than the date sought by the auctioneer;
10.8.6The Applicant and First Respondent agree to co-operate in every way with the auctioneer in relation to the sale by auction including allowing inspection of the property at all times reasonably requested by the auctioneer and ensuring that the property is clean, neat and in good order at the time of any inspection and on the day of auction and the Applicant and First Respondent are restrained from doing or saying anything to hinder or prevent a sale being effected;
10.8.7That the Applicant and First Respondent attend at the auction and negotiate with the highest bidder in the event of the reserve price not being reached;
10.8.8The sale price of the property shall be any amount in excess of the reserve price but in the event of the reserve price not being reached the sale price of the property shall be such amount as is agreed between the Applicant and First Respondent or failing agreement any offer received after the auction to buy the property at a price that is at least 90% of the reserve price shall be accepted by the Applicant and First Respondent; and
10.8.9That upon agreement being reached for sale of the property, paragraphs 10.6 and 10.7 shall apply.
10.9 That the proceeds of sale be applied in accordance with Order 9 above.
11.In the event that the Town N property is not sold at the auction pursuant to Order 10.8 above or within 14 days after the date of the auction by further negotiation, then the Applicant and First Respondent shall cause a further auction of the property to be held and for that purpose the provisions of Order 25.8 above shall apply and in the event the property remains unsold, the property shall continue to be re-submitted for auction at 3 monthly intervals until sold.
12.That in the event either of the Applicant, First Respondent or Second Respondent refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these orders, then the Registrar of this Court shall be appointed pursuant to section 106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
13.That the balance of the Second Respondent’s Response to Initiating Application filed 20 December 2018 and Response to Application in a Case filed 13 January 2020 be dismissed with no Order as to costs, which the Second Respondent might have otherwise sought against the Applicant or First Respondent.
NOTATIONS
A.Insofar as the payment which is to be made to the Second Respondent pursuant to Order 3 above, the Applicant and First Respondent agree to contribute $90,000 each towards this sum in full and final settlement of the Second Respondent’s claim.
B.Insofar as the cash payment that is to be made to the First Respondent pursuant to Order 1.1, the Applicant and First Respondent have agreed that such payment shall constitute the entirety of the First Respondent’s entitlement in respect of that property pursuant to section 79 of the Family Law Act.
Interim Orders
14.That upon the Applicant having made payment to the Second Respondent pursuant to Order 4 above, the Applicant and First Respondent in their capacities as Directors of:
A.Candle Family Super Pty Ltd, ACN … (“the Corporate Trustee”), being the Corporate Trustee of the Candle Family Super Fund, ABN … (“the Fund”); and
B.Candle Family Properties Pty Ltd ACN … (“the Bare Trustee”), being the Bare Trustee for the Suburb Q property;
shall forthwith do all acts and things and sign all documents necessary to effect the sale of the Suburb Q property in accordance with the conditions contained in Order 15 below and upon settlement of such sale occurring, the Applicant and First Respondent are to cause the proceeds of sale to be applied in the following manner and order of priority:
4.1Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;
14.2 Payment of the legal costs on the sale;
14.3In full discharge of the mortgage secured on title of the Suburb Q property;
14.4In payment to the Applicant and/or First Respondent in respect of any monies advanced in accordance with Order 15.4 below; and
14.5Any balance remaining to be deposited into the Westpac Business One Flexi Account held in the name of the Fund, being account number …23, (“Westpac Business One Account”), and each party be restrained from accessing such funds except in the ordinary course of managing the Fund.
15.That in order to effect the sale of the Suburb Q property in accordance with Order 14 above, the Applicant and First Respondent shall give effect to the following conditions of sale:
15.1The Suburb Q property shall be listed for sale by private treaty with the real estate agency trading as V Real Estate (the agent);
15.2The parties are to instruct Ms T of W Conveyancing to act as conveyancer;
15.3The list price at which the property shall be listed shall be mutually agreed upon by the Applicant and First Respondent or, in the absence of agreement reached within 14 days of the date of these Orders then the list price will be as recommended by nominated by the agent;
15.4If in the opinion of the agent, the sale of the Suburb Q property is likely to be enhanced by any staging, repairs and/or minor works (such as painting and decorating) then the Applicant and First Respondent shall do all things to undertake all such works as recommended, and if either party shall incur any costs associated with such works at first instance, then he/she shall be reimbursed by the Fund upon the sale of the property;
15.5The Applicant and First Respondent shall accept all offers that are at least 90% of the list price or such other offers as mutually agreed.
15.6The Applicant and First Respondent are to co-operate in every way with the agent in relation to the marketing of the Suburb Q property for sale including making the key readily available, allowing inspection of the Suburb Q property at all times reasonably requested by the agent and ensuring that the Suburb Q property is clean, neat and in good order at the time of inspection by any prospective buyer and the Applicant and First Respondent are restrained from doing or saying anything to hinder or prevent a sale being effected.
15.7That upon acceptance of any offer in accordance with Order 15.4 above, the Applicant and First Respondent shall execute a contract of sale and sign all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the agent or their conveyancer.
15.8The contract of sale shall provide for completion within 42 days after the date of the contract or as otherwise agreed.
15.9In the event that the Suburb Q property is not sold by private treaty on or before 6 months from the date of listing then the Applicant and First Respondent shall do all acts and sign all documents as are necessary to sell the Suburb Q property by auction in accordance with the following conditions:
15.9.1The Suburb Q property shall be listed with the agent appointed under Order 15.1 above with an auction date to occur within 3 months of this order becoming operative and the agent shall be responsible for appointing the auctioneer to conduct the auction;
15.9.2The Applicant and First Respondent shall execute all documents requested by the auctioneer for sale of the Suburb Q property by auction;
15.9.3The reserve price of the Suburb Q property shall be such amount as is agreed between the Applicant and First Respondent and failing agreement being reached between the Applicant and First Respondent 21 days prior to the auction, then the reserve price shall be nominated by the auctioneer;
15.9.4The Applicant and First Respondent agree to co-operate in every way with the auctioneer in relation to the sale by auction including allowing inspection of the Suburb Q property at all times reasonably requested by the auctioneer and ensuring that the Suburb Q property is clean, neat and in good order at the time of any inspection and on the day of auction and the Applicant and First Respondent are restrained from doing or saying anything to hinder or prevent a sale being effected;
15.9.5That the Applicant and First Respondent attend at the auction and negotiate with the highest bidder in the event of the reserve price not being reached;
15.9.6The sale price of the Suburb Q property shall be any amount in excess of the reserve price but in the event of the reserve price not being reached the sale price of the Suburb Q property shall be such amount as is agreed between the Applicant and First Respondent or failing agreement any offer received after the auction to buy the Suburb Q property at a price that is at least 90% of the reserve price shall be accepted by the Applicant and First Respondent; and
15.9.7That upon agreement being reached for sale of the Suburb Q property, paragraphs 15.6 and 15.7 shall apply.
15.10In the event that the Suburb Q property is not sold at the auction pursuant to Order 14.8 above or within 14 days after the date of the auction by further negotiation, then the Applicant and First Respondent shall cause a further auction of the Suburb Q property to be held and for that purpose the provisions of Order 15.8 above shall apply and in the event the Suburb Q property remains unsold, the Suburb Q property shall continue to be re-submitted for auction at 3 monthly intervals until sold.
15.11That the proceeds of sale be applied in accordance with Order 14 above.
16.That the Applicant and First Respondent shall within 7 days from the date of these Orders, do all things and sign all documents necessary to jointly instruct X Accountants (the Auditor) to prepare a report which addresses the following:
16.1Any issues of non-compliance by the Fund pursuant to the Superannuation Industry (Supervision) Act 1993;
16.2Any action required to be undertaken by the Fund to remedy the issues of non-compliance identified by the Auditor; and
16.3The penalties likely to be imposed on the Fund arising from the issues of non-compliance identified by the Auditor; and the cost of the report is to be paid from available funds held in the accounts belonging to the Fund except however should either of the Applicant or Second Respondent funds such costs at first instance then he/she shall be entitled to be reimbursed by the Fund.
17.That the Applicant and First Respondent shall within 7 days from the date of these Orders, do all things and sign all documents necessary to jointly instruct the single expert appointed in relation to value C Pty Ltd, namely Mr Y of Z Company to prepare an updated valuation of the said entity as at 31 December 2019 and the parties shall otherwise comply with all requests and provide all materials are requested by the single expert to assist in the preparation of the valuation.
18.That in the event either the Applicant or the First Respondent refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these orders, then the Registrar of this Court shall be appointed pursuant to section 106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
19.The Applicant and/or the First Respondent shall have liberty to relist the matter on 7 days’ notice as to any issues of compliance with Orders 14 to 17 inclusive.
IT IS FURTHER ORDERED THAT
20.The solicitor for the Applicant wife is to forward an electronic typescript of the document marked “A” as amended to the Court within two business days.
THE COURT NOTES THAT
21.The orders comprised in the final orders made today resolve in their entirety the orders sought by the Second Respondent.
22. The Second Respondent be removed as a party to these proceedings.
These further interim orders resolved the parties’ entitlement in the Town N property on a final basis and further resolved the claim by the second respondent.
On 7 May 2020 Mr AA was appointed Case Guardian for the husband.
On 21 May 2020 proceedings were remitted to the List Clerk to await allocation of final hearing dates. On 17 September 2020 proceedings were listed for final hearing commencing 16 December 2020.
At trial the wife relied upon her primary affidavit sworn 29 April 2020 and the affidavit of Dr BB, her treating general practitioner. The husband at trial relied upon his primary affidavit sworn 20 May 2020.
Otherwise, the parties relied on a Single Expert report from Mr Y as to the value of C Pty Ltd sworn 1 April 2021.
The final hearing proceeded on 16 and 17 December 2020. On 17 December 2020 it was noted that the updated Single Expert report as to the parties’ corporate entities was not available. Proceedings were adjourned part heard to 6 April 2021 on which date judgment was reserved.
Context
The wife at the time of trial was 56 years of age, the husband was also aged 56.
The parties commenced cohabitation in 2003 and married in 2008.
The parties separated in early February 2017, with an earlier separation from December 2015 to April 2016.
There are no children of the parties’ relationship, however, there are two children from the wife’s prior relationship who at the time of the commencement of cohabitation were aged 13 and nine. The eldest child was part of the parties’ household in 2007/2008 for about a year and the youngest for about two or three years from 2012. There is one child of the husband’s former relationship who at the time of cohabitation was aged 14. The child was part of the parties’ household for about three years from 2005. On balance, nothing turns on the presence of the children in the household.
In 2003 at the commencement of cohabitation, the parties had the following assets and liabilities:
(a)the wife:
(i)a home unit property at CC Street, Suburb DD having a modest equity of about $20,000;
(ii)a home at EE Street, Suburb FF in which she resided having equity of about $125,000;
(iii)superannuation with AH Super Fund having a value she estimates of about $120,000. Her superannuation benefit statement evidences a balance of her superannuation as at 10 May 2005 of $145,593.
(b)The husband:
(i)a half interest in the real estate property at 1 GG Street, Suburb JJ that was encumbered by mortgage;
(ii)some superannuation;
(iii)a car and some personal effects;
(iv)an outstanding income tax liability of $21,170 arising from the 2002 and 2003 financial years;
(v)some credit card debt.
At the commencement of cohabitation the wife had been working in the finance industry for some 25 years. The wife had some formal qualifications in finance.
At the commencement of cohabitation the husband was a self-employed.
C Pty Ltd
In 2005 the company C Pty Ltd was incorporated and commenced trading as F Company Suburb E.
On incorporation of the company the parties became directors and shareholders. The parties initially worked together in the business until 2010 when the husband ceased to have any involvement in the business after he was removed as a director following litigation commenced by him against AH Bank.
F Company in Suburb E operated by the company is subject to a franchise agreement with G Pty Ltd. The core part of the business is principally writing loans for H Bank. The wife holds a license which is used for writing nonconforming loans through various non-bank financial institutions.
As at April 2020 the wife estimates that the business has a current portfolio comprising of about 1,500 customers with over 1,900 individual loans.
For the short period that the husband was engaged in the business the husband undertook marketing activities and would meet with customers to complete applications for finance. The wife was then responsible for structuring and finalising the applications, submitting the applications, managing the application process throughout and dealing with and managing the client relationship through the settlement. Following settlement of the loan the wife was responsible for managing the ongoing client relationship.
In the period between December 2009 and December 2010 the husband rarely attended at the business offices or client meetings. At this time the company was in dispute with AH Bank and F Company. Subsequently, the dispute was resolved in 2010 and, in summary, the dispute was resolved as follows:
(a)that the husband receive a payout of $100,000;
(b)that the husband resigned as a director of C Pty Ltd;
(c)that the husband was not permitted to work for or make contact with the F Company Franchise Network or C Pty Ltd;
(d)that the husband be permitted to remain as a shareholder of C Pty Ltd and receive remuneration by way of wage and/or dividend from C Pty Ltd.
Subsequent to December 2010 the wife has been the sole director of C Pty Ltd and solely responsible for the ongoing conduct and management of the business. In subsequent years the business has flourished and in four of the years the business has been in the top 10 per cent of F Company franchises.
More recently the business has been impacted by the opening of a new F Company franchise in nearby Suburb Q, the impact of the Financial Services Royal Commission in 2019 that saw a number of loan products removed from the market and the ongoing COVID-19 pandemic from early 2020.
The wife has continued to conduct the business of C Pty Ltd since separation without contribution or input from the husband. She has paid herself a salary from the business averaging about $200,000 per annum since separation with her salary in the 2020 financial year being in the sum of $238,000.
As at the date of trial the wife estimated that C Pty Ltd had cash reserves on term deposit of a little over $1 million, substantially representing retained profits that had not been distributed by way of dividend.
In anticipation of property settlement orders that may require the transfer of the C Pty Ltd business to her, the wife incorporated the company KK Pty Ltd. The company has not traded save that the wife has deposited $5,000 into the company account.
K Pty Ltd
In about March 2010 this company was incorporated with the sole shareholder being C Pty Ltd.
Initially C Pty Ltd injected capital of about $70,000 into the company. Over a period of years the company has been involved in various small business enterprises. Unfortunately, none of those enterprises were successful and none continue to trade.
Over the years C Pty Ltd provided financial support for the company for the purchase of stock and equipment for the various business enterprises and paid wages for staff who were employed from time to time to assist in the running of the various enterprises.
In what can be inferred to be a tax minimisation arrangement, C Pty Ltd paid management fees to K Pty Ltd in the period from 12 June 2013 to 14 June 2017 totalling $420,818. No services were in reality rendered by K Pty Ltd to C Pty Ltd.
Subsequent to the parties’ separation in February 2017, the husband failed to have any involvement in the activities of K Pty Ltd. The wife assumed responsibility for winding down the activities of K Pty Ltd, including the terminating of staff and sale of stock and equipment including motor vehicles. K Pty Ltd now remains as a non-trading entity with no value.
Real Property Holdings
Subsequent to the commencement of cohabitation the parties occupied the Suburb JJ property as their home until 2007. In March 2004 the property was transferred into the names of the parties as joint tenants when they refinanced the property with a mortgage of $360,000 to fund a payment of $50,000 to acquire the husband’s former partner’s interest in the property. Subsequent to the parties vacating the Suburb JJ property in 2007 the property was occupied by the husband’s mother, the former second respondent in these proceedings. The husband’s mother remained in the property until 2010 when she moved into the property at Suburb Q owned by the parties’ superannuation fund. The Suburb JJ property was thereafter rented until sold in July 2015 for $540,000. The net proceeds of sale were approximately $18,000.
In 2004 the wife sold her Suburb FF property. The proceeds of sale of about $100,000 were applied to the start-up costs associated with C Pty Ltd. Later in 2010 the wife sold her Suburb DD property there being no net proceeds of sale as the property had been further encumbered by the wife in trading in public company shares.
In 2007 the parties purchased the adjoining property at 2 GG Street, Suburb JJ for $550,000 with a mortgage of $512,000. The parties contributed towards the initial deposit and the balance of purchase monies from funds then available. The parties occupied this property as their home until it was sold in 2011 for $660,000. The net proceeds of sale were about $146,000.
In 2011 the parties purchased vacant land at LL Street, Suburb MM for $617,000. Subsequently, a home was constructed on the property at a cost of approximately $1 million with the purchase and construction costs funded by way of a AH Bank loan of $1.2 million and funds advanced by C Pty Ltd in the sum of $400,000 by way of shareholders loans. The parties occupied the property as their home until 2015 when the property was sold for $1,875,000. The net proceeds of sale of about $600,000 were then applied to the purchase of a property at QQ Street, Suburb NN.
On sale of the 2 GG Street property the parties in 2011 purchased property at Town D for $392,000. The parties resided in this property whilst their home at Suburb MM was being constructed and after moving into their new home the property was tenanted until 2017 at which time it was occupied by the wife following final separation. Subsequent to separation the wife has met all outgoings in relation to the property including mortgage repayments and has expended considerable sums totalling about $335,000 on renovations and improvements. The parties’ interest in this property were resolved on a final basis by the interim orders referred to above. To fund the necessary capital payment to the husband as provided for in the interim orders, the wife refinanced the mortgage secured over the Town N property by increasing the loan by about $435,000 to a new total of $763,000. The increase in loan funded the payment of $184,000 to the husband and the $90,000 payable by the wife to the second respondent.
The property at QQ Street, Suburb NN was purchased in 2015 for $1,575,000 with a mortgage secured in the sum of $1,650,000 to cover the purchase price and stamp duty. This property was occupied by the parties until final separation.
In 2016 the wife in her name purchased property at RR Street, Suburb SS for the sum of $950,000. The wife resided in this property briefly during a period of separation.
In September 2016 the husband in his name purchased the property at Town B for $830,000 with a mortgage of $900,000 to cover the purchase price and stamp duty. As at March 2018 the outstanding mortgage balance on the property as disclosed by the husband was $860,000. This property was sold pursuant to interim orders made during the course of these proceedings. The husband occupied this property as his main residence until July 2019. Until May 2018 mortgage payments were funded from the parties’ income. The husband was put on notice that if he wished to retain the property as his primary residence he would be required to meet outgoings and mortgage payments as they fell due and payable. Notwithstanding by June 2019 mortgage arrears had accumulated to the sum of $21,256. As a consequence interim orders were made as referred to above on 2 July 2019 appointing the wife as trustee for sale. The property was sold in late November 2019 for $950,000 with an outstanding mortgage balance of $940,905. By reason of mortgage debt including arrears and unpaid outgoings there was a shortfall on sale of $20,809 in addition to which the wife incurred expenses of $15,426 in preparing the property for sale. These costs were funded by way of loan from C Pty Ltd.
In 2017 the parties purchased property at L Street, Town M for $850,000 with a mortgage advance of $892,000 to cover the purchase price and stamp duty. The property was purchased with a view to a quick renovation and ready sale. Renovations costing about $100,000 were undertaken at the property with those funds being advanced by way of shareholders loan from C Pty Ltd. This property was sold after separation.
Candle Family Super Fund
In March 2010 the parties resolved to form a self-managed superannuation fund. For that purpose the company Candle Family Super Pty Ltd was incorporated to be the trustee of the fund. The parties were both directors and equal shareholders of the trustee company.
Subsequent to creation of the fund, the parties rolled over their then superannuation entitlements into the fund. The wife contributed $157,335 and the husband $26,016.
Subsequently, the parties resolved that the fund would acquire the real estate property at TT Street, Suburb Q as an asset. To facilitate the purchase the company Candle Family Properties Pty Ltd was incorporated. The property was purchased for $360,000 and funded in part by a AH Bank loan of $288,000. This Suburb Q property was occupied by the husband’s mother from the time of purchase until February 2020. Orders were made on 20 January 2020 facilitating sale of the property. As a consequence of the husband’s mother residing in the property the parties’ self-managed super fund was, it appears, noncomplying, the property being occupied by a related party. Negotiations are ongoing with the Australian taxation office in an endeavour to resolve non-compliance issues.
In October 2011 the fund acquired a home unit property at VV Street, Suburb E using the company AK Pty Ltd. The property was purchased for $215,000 with a mortgage of $172,000. This property was sold in April 2017 for $406,000 with the net proceeds of sale being paid into the fund.
In September 2014 the fund acquired commercial premises at WW Street, Suburb XX using the company YY Pty Ltd for the sum of $208,000 with a mortgage advance from AH Bank of $135,000. The property was leased to K Pty Ltd for the purposes of that company’s various activities. The property was sold in June 2016 for $280,000 with proceeds of sale being deposited into the fund.
In June 2018 following separation the wife elected to roll $400,000 of her superannuation entitlements in the superannuation fund to a commercial fund ZZ Super Fund. As at 8 April 2020 the balance of the wife’s interest in this commercial fund was $429,953.
Subsequently, the Candle Superannuation Fund was closed resulting in further funds being rolled into the parties’ commercial super funds. As at trial the wife’s balance in the ZZ Super Fund was $653,772 and the husband’s $257,301.
The Parties to the present
In May 2017 the wife was admitted to hospital following a health incident. She underwent surgery in July and August 2017. The episode impacts upon her function both at home and work and in performing her day-to-day tasks. The wife is having regular reviews. Otherwise, the wife was diagnosed with cancer in early 2018 subsequently having surgery over a period in late 2018. The wife quite properly describes her health as “guarded”.
However, it is not asserted that the wife’s health impacts adversely on her ability to continue to conduct the business of C Pty Ltd.
The wife is presently in a relationship that has been a de facto relationship since mid-2018. She resides with her partner in her Town N property.
The husband has not worked since separation. On 16 April 2019 the husband voluntarily admitted himself to H Private Hospital as a consequence of what he asserts to have been a panic attack. He was admitted for alcohol and cannabis abuse and presented with a history of anxiety and depression. He discharged himself the following day.
Subsequently, on 1 June 2019 the husband was scheduled by police following a report of suicidal ideation whilst under the influence of alcohol and taken to J Hospital. He was detained at the hospital overnight under the provisions of the Mental Health Act 2007 and released the following afternoon.
Since separation he has continued to receive payments from C Pty Ltd and K Pty Ltd. In the 2017 year he received income payments totalling $138,333 and in the 2018 year from C Pty Ltd $83,333. In addition, superannuation contributions were made on behalf of the husband in 2017 and in 2018 totalling $13,458. Otherwise, the husband has had the use of a fully funded motor vehicle 1 with C Pty Ltd meeting lease payments and registration and insurance costs totalling in the 2017 and 2018 years $24,425 per annum. The husband traded in the vehicle in April 2020 and purchased a motor vehicle 2 for $41,000. He asserts that the vehicle now has a value of $35,000.
In May 2018 the wife resolved that C Pty Ltd would cease making income payments to the husband in circumstances where he provided no services to the company and had received significant lump sums totalling $402,051 from sale of investment properties referred to below:
(a)the Suburb SS property was sold in May 2017 for $1,100,000. Each of the parties received from the proceeds of sale $98,000;
(b)the Suburb NN property was sold in August 2017 for $1,820,000. Each of the parties received $221,844 from the proceeds of sale;
(c)the parties’ proposed purchase of a property at S Street, Town B was rescinded post separation and each of the parties received by way of refund of the deposit and stamp duty the sum of $17,566;
(d)the Town M property was sold in March 2018 for $1 million. Each of the parties received $64,641 from the proceeds of sale.
In total each of the parties received from the above transactions $402,051.
In addition, the husband received a further sum of $184,000 in consideration of transferring his interest in the Town N property to the wife as referred to above, $90,000 of which was required to be paid to the second respondent to remove her from the proceedings.
In November 2019 the husband and wife were both paid a dividend of $206,896 from C Pty Ltd in circumstances where earlier dividends were applied to meet repayments necessary to fund repayment of shareholders loans referred to above and the parties’ joint property outgoings including mortgage payments.
The wife has limited information as to funds that have been retained by the husband from funds received by him.
On 30 September 2020 the wife and her partner Mr AB purchased real estate property at AC Street, Town AD as tenants-in-common in equal shares for the sum of $1,550,000. The purchase was funded by a bridging loan in the sum of $1,618,142 pending sale of the wife’s Town N property and a property owned by her partner at Town AD.
In early November 2020 the wife sold her Town N property for $780,000 with the net proceeds of sale after discharge of mortgage being $12,475. The wife’s partner sold his Town AD property receiving net proceeds of $615,671. The wife and her partner applied their net proceeds of sale towards reduction of the bridging loan that funded the purchase of AC Street.
Subsequent to the reduction in the balance outstanding on the bridging loan, the wife and her partner arranged for the mortgagee to split the loan secured over the AC Street property into two separate facilities to reflect their respective contributions to the purchase and associated costs. The wife is responsible for the sum of $870,345 to the mortgagee with her one half interest in the Town AD property having a value of approximately $775,000.
The Approach to Property cases
The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford [2012] HCA 52 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19 and Chapman & Chapman [2014] FamCAFC 91.
In Stanford the majority [at 120] said as to ss 79(2) and 79(4):
... the requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. ... while the power given by s 79 is not “to be exercised in accordance with fixed rules”, nevertheless, three fundamental propositions must not be obscured.
The first of these propositions is for the Court to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.
The second is that although s 79 confers a broad power on the Court, it is not a power that is to be exercised according to an unguided judicial discretion. It must be exercised in accordance with legal principles, including the principles which the Act itself lays down.
The third is that the question of whether the order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters set out in s 79(4). 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 majority then said [at 122]:
... The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.
Thus the process ordinarily involves a staged process.
The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4) (Stanford supra). This consideration addresses the prohibition in s 79(2) of the Act.
The Court needs to conclude that it would be unjust or unfair to leave property rights intact.
In many cases, such as this matter, this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
In particular, as in this matter, such a circumstance arises where both parties seek adjustive orders but are unable to agree as to same. As the parties readily conceded it is clearly just and equitable to make adjustive orders under s 79.
The Asset Pool
At the conclusion of evidence the parties tended a working draft balance sheet: Exh “H”.
Following submissions in relation to that document the asset pool for consideration comprises the following:
Assets:
Wife Half share AC Street Town AD $ 775,000
Joint Interest in C Pty Ltd $ 2,425,000
Husband Motor Vehicle 1 $ 35,000
Wife Interest in KK Pty Ltd $ 4,490
Wife Sale proceeds Suburb SS property $ 98,000
Husband Sale proceeds Suburb SS property $ 98,000
Wife Sale proceeds Suburb NN $ 221,844
Husband Sale proceeds Suburb NN $ 221,844
Wife Sale proceeds Town M $ 64,641
Husband Sale proceeds Town M $ 64,641
Wife Refunds rescinded Town B property sale $ 17,566
Husband Refunds rescinded Town B property sale $ 17,566
Husband Interim property order January 2020 $ 94,000
Wife Sale proceeds Town N $ 12,475
Wife ZZ Super Fund Superannuation $ 653,772
Husband ZZ Super Fund Superannuation $ 257,301
$ 5,061,140
Liabilities
Wife Mortgage AC Street, Town AD $ 870,345
Joint Shareholders loan due to C Pty Ltd $ 477,407
$ 1,347,752
Net Pool: $ 3,713,388
Contributions and s 75(2) considerations:
In Kessey and Kessey (1994) FLC 92-495 (Full Court) at 89,151 the Full Court made clear that ultimately all that is necessary is to evaluate the weight that should be given to each party’s contributions relative to the contributions of the other party:
“... In many – indeed probably in most – property settlement cases the Court has to evaluate and assess contributions to property in the absence of precise valuations of the contributions in question. Indeed, where the contributions to property are indirect or non-financial, precise valuation is impossible, and even where the contributions are direct or financial so that a valuation might be provided, other factors (not capable of precise mathematical statement) may well have eroded the initial value of such contributions. In a case such as the present, it is not necessary to arrive at precise mathematical valuations of the parties’ contributions - all that is necessary is to evaluate the weight that should be given to each party’s contributions relative to the contributions of the other party.”
In Farmer & Bramley[2000] FamCA 1615; (2000) FLC 93-060, Kay J clearly stated two things, namely:
68.The Court’s task is to evaluate all of the contributions from the time of the commencement of the parties’ relationship until the time of the hearing and to give such weight to such contributions as the Court thinks is appropriate in the circumstance.
69.There is nothing in the legislation that requires s 79(4)(a)(b) and (c) contributions to be measured only in terms of what either party contributed to the assets of which the parties are presently possessed.
As the Full Court recently said in Horrigan & Horrigan [2020] FamCAFC 25:
[35]It is 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. (Pierce v Pierce (1999) FLC 92-844; Singerson & Joans [2014] FamCAFC 238; Dickons v Dickons (2012) 50 Fam LR 244 and Marsh & Marsh (2014) FLC 93-576; Lovine & Connor and Anor (2012) FLC 93-515 at [39]-[42]).
The assessment of contributions in this matter is distinguished by the evidence that is common ground that since 2010 the husband has made minimal contribution to the accrual of assets by reason of funds available to the parties through the operations of C Pty Ltd.
The course of the parties’ contributions from the commencement of cohabitation to final trial is examined in detail above and need not be repeated here.
It was contended by counsel for the wife that the wife made significantly greater financial and non-financial contributions particularly in terms of management of the parties’ financial affairs than that of the husband. Otherwise, it is contended that the wife had significant assets to that compared to the husband at the commencement of cohabitation.
Complaint was made on behalf of the wife as to the husband’s dissipation of capital payments received by him from the sale of various real estate properties and otherwise. That complaint is addressed by the parties’ agreement that such payments be included in the asset pool for adjustment purposes.
Overall, in terms of contributions it was contended on behalf of the wife that contributions should be assessed as to 65 per cent to the wife and as to 35 per cent to the husband.
The husband, being represented by his case guardian at final trial, contended for an assessment of contributions as being equal. With respect, such a contention ignores the reality of the evidence that from 2010 to date of hearing the wife has overwhelmingly contributed to the accrual of the present asset pool with her primary role in the ongoing conduct of C Pty Ltd, providing a significant resource in terms of the ability of the parties to invest in real estate and service at times significant debt.
The net asset pool for consideration is in the sum of $3,713,388. An adjustment as sought by the wife creates disparity between the parties of 30 per cent of the pool. In money terms that disparity would be $1,114,016. In considering contributions of the parties as discussed above, it is considered that an appropriate holistic assessment of contributions would be, as asserted on behalf of the wife, as to the wife 65 per cent and as to the husband 35 per cent. Such an assessment would create the disparity as referred to.
Otherwise, the Court is required to consider the relevant matters set out in s 75(2) of the Act.
Both parties are 56 years of age. The wife historically has had health issues as referred to above and it is accepted that her overall health circumstances are guarded. The husband has had health issues which from the available evidence are indicative of some underlying psychological or psychiatric circumstances exacerbated by alcohol and cannabis addiction.
The wife was candid with the Court and evidence is that she anticipates being able into the foreseeable future, to conduct the ongoing business of C Pty Ltd. That business represents a significant financial resource to her in terms of future income. Her more recent taxable income was in excess of $200,000 per annum with, otherwise, retained profits accumulating in the balance sheet of the entity and being available for distribution to her by way of dividend, so as to offset the shareholders loan owed by her to the company. On the other hand, the Court is comfortably satisfied that at least in the circumstances as presented to the Court at trial the husband has little capacity for employment and will live on capital available to him and his superannuation when available.
Both parties only have commitments to support themselves and no responsibility to support any other person.
It is the husband’s evidence that he is not in receipt of any government pension notwithstanding his employment circumstances.
The wife is residing in a de facto relationship and owns a one half share of the property in which she resides with her partner. They contribute jointly to the living expenses.
The present entitlements of the party by way of contribution assessment see a disparity between them of about $1,114,000.
In all the circumstances, it is considered appropriate that there be an adjustment in favour of the husband by reason of relevant s 75(2) circumstances of 2.5 per cent.
Overall, that would see the entitlements of the parties in the present asset pool to be 62.5 per cent to the wife and 37.5 per cent to the husband create a disparity between the parties overall of about $928,347.
Such a result would see the husband entitled to the sum of $1,392,520.5.
He has in his possession or has had assets as follows:
Husband Motor Vehicle 1 $ 35,000
Husband Sale proceeds Suburb SS property $ 98,000
Husband Sale proceeds Suburb NN $ 221,844
Husband Sale proceeds Town M $ 64,641
Husband Refunds rescinded Town B property sale $ 17,566
Husband Interim property order January 2020 $ 94,000
Husband ZZ Super Fund Superannuation $ 257,301
$ 788,352
The wife would thus be required to pay to the husband the sum of $604,168.
The wife herself has received significant capital distributions as referred to above and C Pty Ltd has available to the wife cash assets of just under $1 million, reflecting substantially retained profits over the last few financial years.
In all of the circumstances of this matter, it is considered that this result is overall just and equitable. Orders will be made accordingly.
I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster. Associate:
Dated: 29 April 2021
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