Fu & Tiao
[2023] FedCFamC1F 393
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fu & Tiao [2023] FedCFamC1F 393
File number(s): SYC 2850 of 2020 Judgment of: SCHONELL J Date of judgment: 19 May 2023 Catchwords: FAMILY LAW – PROPERTY – Where both parties sought financial adjustment following a 25 year marriage – Where the parties agreed that the contributions up until separation were equal – Where the wife sought a 2.5 per cent adjustment for her contributions to the date of hearing – Where an adjustment is warranted for her maintenance of and contribution to the parties’ properties – Where the wife sought a 2.5 per cent adjustment under s 75(2) of the Family Law Act 1975 (Cth) for the husband’s failure to provide disclosure – Where the Court is not satisfied that the husband failed to make full and frank disclosure – Where the husband sought an adjustment for his future needs – Where the Court is satisfied that an adjustment ought to be made – Just and equitable outcome found to be that the parties’ property be divided equally. Legislation: Family Law Act 1975 (Cth) ss 75, 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Briese and Briese (1986) FLC 91-713; [1985] FamCA 23
Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Franklin & Ennis [2019] FamCAFC 91
Gollings & Scott (2007) FLC 93-319; [2007] FamCA 397
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (intervener) (2003) FLC 93-143; [2003] FamCA 395
Horrigan & Horrigan [2020] FamCAFC 25
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Kannis & Kannis [2002] FamCA 1150
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Oriolo & Oriolo (1985) FLC 91-653; [1985] FamCA 54
Singerson & Joans [2014] FamCAFC 238
St John v St John (1979) 6 Fam LN N14
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Weir and Weir (1993) FLC 92-338; [1992] FamCA 69
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Division 1 First Instance Number of paragraphs: 62 Date of hearing: 15 May 2023 Place: Sydney Counsel for the Applicant: Ms Bridger Solicitor for the Applicant: Swiftly Legal Counsel for the Respondent: Ms Shea Solicitor for the Respondent: NS Legal ORDERS
SYC 2850 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FU
Applicant
AND: MR TIAO
Respondent
order made by:
SCHONELL J
DATE OF ORDER:
19 MAY 2023
THE COURT ORDERS THAT:
1.Within 28 days of the date of these orders, the parties shall do all acts and things and sign all documents necessary to list the properties at B Street, Suburb C NSW (“the Suburb C property”), and D Street, Suburb E NSW (“the Suburb E property”), for sale for the best price reasonably obtainable in the following manner in respect of each property:
(a)The parties shall appoint such agent as the parties agree upon in writing to have the conduct of the sale on behalf of both parties, and in the absence of agreement as to an agent within seven (7) days of the date of these orders, the applicant wife (“the wife”) shall forthwith nominate three agents in writing from which the respondent husband (“the husband”) shall, within a further seven (7) days select one, and failing which the wife will select one who will be the agent appointed, and the costs of and incidental to such appointment is to be borne equally between the parties.
(b)The parties will list the properties for sale by public auction within twelve (12) weeks of the appointment of the agent or otherwise as advised by the agent.
(c)The reserve price for sale by public auction shall be such price as the parties agree upon in writing, or in the absence of agreement reached within seven (7) days of appointment of the agent, as nominated as the fair market value by the agent.
(d)The parties shall each co-operate in every way with the agent, including:
(i)Making the keys to each property available to the agent;
(ii)Allowing inspection of the properties at all reasonable times requested by the agent;
(iii)Not doing or saying anything to hinder of prevent a sale from being effected;
(iv)Ensuring that the property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers, and
(v)Signing all documents requested by the agent in relation to the listing for sale of the properties.
2.Within seven (7) days of the date of these orders, the parties are to do all acts and things necessary and sign all necessary documents to cause a bank account with the Westpac Bank to be opened in their joint names for the purposes of holding the proceeds of sale of the properties pending distribution in accordance with these orders (“the sale proceeds account”).
3.Pending sale of the properties, the wife shall pay as and when due:
(a)All municipal and water rates and taxes in respect of the properties, and
(b)All repayments in respect of the Suburb C property mortgage.
4.Upon settlement of the sale of the properties, the proceeds of sale shall be paid in the following manner and priority:
(a)The amount required to discharge the Suburb C property mortgage;
(b)All costs and expenses of associated with the sale of the properties, including:
(i)Legal fees;
(ii)Agent’s commission, and
(iii)Costs of and incidental to the appointment of the agent;
(c)Balance of proceeds to be deposited into the sale proceeds account.
5.Within seven (7) days of the date that contracts for sale of the Suburb C property are exchanged, the parties shall do all acts and things necessary and sign all necessary documents in order to jointly instruct an agreed accountant (and in the absence of agreement, the wife shall nominate three accountants and the husband shall select one within seven (7) days of receiving the wife’s nominations, and failing which the wife will select one who will be the accountant appointed) to prepare and provide to the parties a written calculation as to the capital gains tax payable in respect of the Suburb C property, and the costs associated with obtaining such calculation will be paid from the sale proceeds account.
6.Following receipt of the capital gains tax calculation, the parties shall do all acts and things and sign all documents necessary to pay and distribute the remaining funds in the sale proceeds account, less an amount equivalent to 120 per cent of the capital gains tax calculation, in the following manner and priority:
(a)50 per cent of the balance remaining to be paid to the wife plus the sum of $149,128; and
(b)The remainder to the husband.
7.Within three (3) months of the end of the financial year in which the Suburb C property is sold, the parties shall do all acts and things and sign all documents necessary to cause their income tax returns to be lodged with the Australian Taxation Office, and any capital gains tax assessed as payable by the Australian Taxation Office shall be paid from the balance of funds held in the sale proceeds account.
8.In the event there are funds remaining in the sale proceeds account after the payment of capital gains tax by the parties, then the balance will be distributed equally between the parties.
9.In the event there is a shortfall in the funds available in the sale proceeds account to pay the parties’ capital gains tax liability, then the parties will contribute to the shortfall in equal proportions.
10.Other than as specifically provided for in these orders, each party is solely, legally and beneficially entitled, to the exclusion of the other party, to all real and personal property in his or her ownership, possession or control as at the date of these orders, including but not limited to monies on deposit, superannuation, motor vehicles, furniture and personal effects.
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 Fu & Tiao has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
These are proceedings for financial adjustment following a 25 year relationship. The parties’ affidavits addressed a broad suite of allegations, however, by the time the matter came to submissions the issues between the parties had significantly narrowed.
The parties were in agreement that the contributions over the course of the relationship were equal. The applicant (“the wife”) contended, however, that there should be a 2.5 per cent adjustment in her favour for the period between separation in January 2017 and the hearing as a consequence of the wife’s contributions to the support of the parties’ adult child and her direct financial contribution in meeting the shortfall in the expenses for the investment properties and a reduction in the mortgage balance.
For his part, the respondent husband (“the husband”) contended that the contributions should be found to be equal to the time of hearing.
The wife sought an adjustment in her favour under s 75(2) of the Family Law Act 1975 (Cth) of 2.5 per cent based upon what she contended were issues of non-disclosure by the husband. Thus, the wife sought overall a division of the parties’ assets as to 55 per cent to her and 45 per cent to the husband.
The husband contended there should be an adjustment in his favour under s 75(2) in view of the fact that he is older than the wife, that he has health issues, and that he is not working whereas the wife remains in employment. The husband contended overall that the parties’ assets should be divided as to 51 per cent to the husband and 49 per cent to the wife.
The parties were also in agreement as to how their assets in a structural sense should be divided. In that respect, the parties agreed that their real property should be sold and that, after making an allowance for capital gains tax, the balance should be divided in the proportions as referred to above.
The wife relied upon the following documents:
(1)Amended Initiating Application filed 27 July 2022;
(2)Affidavit of wife filed 27 April 2023;
(3)Affidavit in reply of wife filed 11 May 2023;
(4)Financial Statement of wife filed 27 April 2023; and
(5)Case Outline document filed 12 May 2023.
The husband for his part relied upon the following documents:
(1)Response to Initiating Application filed 29 August 2022;
(2)Affidavit of husband filed 9 May 2023; and
(3)Financial Statement of husband filed 9 May 2023.
There was some short cross-examination of each of the parties.
BACKGROUND FACTS
The wife was born in 1962 and is currently 61 years of age.
The husband was born in 1958 and is currently 65 years of age.
The parties commenced cohabitation in 1991 and were married in late 1991.
The parties separated in January 2017 and a divorce order was made in early 2020.
The wife has not re-partnered whereas the husband remarried in 2022.
There are two children of the parties’ marriage, being Mr F born 1993 who is currently 30 years of age and Mr G born 1997 who is currently 26 years of age.
At the time of the parties’ separation there were no children under the age of 18 years.
In circumstances where there is agreement that the contributions to the date of separation are equal, then it is superfluous to recite the historical matters of contribution, particularly where much of it is disputed and unresolved by cross-examination given the very sensible concession referred to above. I will therefore only address such matters of history as are necessary to either resolve the remaining matters of contention or inform my ultimate findings.
At the time of separation, the husband was working in Country H and ceased working in Country H after early 2019. The husband ultimately retired from all forms of employment in mid-2022.
At the time of separation, the parties’ youngest child Mr G was engaged as a student in full time study. The wife gives unchallenged evidence as follows in her affidavit:
26. From 2018 until the end of 2019, I was solely responsible for paying for [Mr G’s] tuition ($21,819), accommodation ($652 or $782 each month), travel, and living costs. …
27. Although [Mr G] has been employed […] since 2020, he continues to live with me, and I pay all our household expenses.
At the time of separation, the parties were the owners of two properties, being an investment property in Suburb C (“the Suburb C property”) and the former matrimonial home at Suburb E.
Since the time of separation, the wife has had occupation of the former matrimonial home which is unencumbered.
The wife gives evidence that in the period post the parties’ separation she has effected improvements to the former matrimonial home, having spent approximately $33,000 between 2017 and the date of hearing (wife’s affidavit filed 27 April 2023, paragraph 21). The wife gives the following evidence in relation to the investment properties:
7. …
a.The [Suburb C] Property and the [J Street] Property arc negatively geared. According to my tax returns from the financial years ending in 2017 to 2021, the total “net rental property loss” I incurred was $241,019. For the financial year ending in 2022, I received “net rent” of $5,394 from the [Suburb C] property. In addition to tax-deductible expenses, I have also paid down the principle in respect of the mortgage secured against the [Suburb C] Property from January 2017 to date, which amounts to more than $79,176.
(Wife’s affidavit filed 11 May 2023)
NON-DISCLOSURE
The wife contended that the husband had failed to make a full and frank disclosure.
The authorities make plain that a party to financial proceedings is required to make a full and frank disclosure (see Oriolo & Oriolo (1985) FLC 91-653 (“Oriolo”); Weir and Weir (1993) FLC 92-338 (“Weir”)). The case law is reinforced by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The duty of disclosure is absolute. It is a continuing obligation throughout the litigation and until the point of judgment. It does not relate simply to documents but includes information pertinent to all relevant and material facts.
Justice Hutley observed in St John v St John (1979) 6 Fam LN N14:
… faced with the party whose affairs were tangled and who did not give the assistance within his power to disentangle them the trial Judge in my opinion was well entitled to simply take the view that it lies upon that party to devise means to comply with the order. If the burden is impossible, he cannot complain as he is the author of his own misfortune.
In Kannis & Kannis [2002] FamCA 1150, the Full Court underscored the relevance and consequence of a failure to disclose:
51. Whether the non-disclosure is wilful or accidental, is a result of misfeasance, or malfeasance or nonfeasance, is beside the point. The duty to disclose is absolute. Where the Court is satisfied the whole truth has not come out it might readily conclude that the asset pool is greater than demonstrated. In those circumstances it might be appropriate to err on the side of generosity to the party who might be otherwise be seen to be disadvantaged by the lack of complete candour.
A failure to disclose goes to the very heart of the Court’s obligation to make a determination that is just and equitable. In Briese and Briese (1986) FLC 91-713 at 75,180–75,181, Smithers J determined:
… A person in the position of the husband in the present case has a positive obligation to set out at an early stage his financial position in a clear and comprehensive manner. …
… in financial proceedings between spouses each party must make a full and frank disclosure of all material facts. … full and frank disclosure was required as a matter of principle in the light of the fact that it was the duty of the Court, taking into account a number of designated criteria, to make a decision which basically involved the exercise of a discretion. …
… There is an obligation on each party to act so as to provide a basis upon which the two of them are in a position to resolve the case by agreement, or proceed to a hearing, as expeditiously as may reasonably be done.
In Weir, the Full Court stated at 79,593 that:
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour’s findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
The wife contended that the husband had failed to disclose during the course of the hearing the balance of his superannuation entitlements with the Superannuation Fund 1, failed to disclose bank statements for an account held by him with K Bank in Country H, failed to disclose his interests in two Westpac Banking Corporation (“Westpac”) accounts as well as a joint account with his new partner, and failed to disclose the income he received from his employment in Country H.
The wife further contended that the husband failed to provide documents evidencing various payments that he made in 2020 totalling approximately $160,000.
The husband contended in response to the various contentions advanced by counsel for the wife that he had in fact forwarded documents in relation to his superannuation records to the wife’s solicitor and that attempts to obtain further verification of account balances were frustrated in circumstances where he was residing in Country H and could not verify his identity. In relation to accounts with K Bank in Country H, he denied the proposition that he had not disclosed accounts saying that he had provided copies of bank statements in response to requests from the wife’s solicitors and also indicated that the wife knew what the account balances were as the account statements were sent to the parties’ home in Suburb E. He denied the proposition that he had not produced documents as requested by the wife in relation to the account with K Bank. In relation to the various Westpac accounts, he denied the proposition that he had not provided bank statements to the wife in relation to the accounts. The wife initially contended that he had not provided any. It would appear, however, that ultimately documents for the Westpac accounts were produced albeit as a consequence of the issue of a subpoena by the wife. In relation to the husband’s joint account with his wife, he agreed that he had not produced any documents in relation to that account, saying he needed the approval of his wife to provide those documents. As to his Country H income, this was, he said, referred to in his K Bank account.
As to the three payments in 2020 totalling $160,000, the husband says these monies were paid in cash and he had no documents. As to these amounts, they were paid more than three years after the separation. Parties do not live in suspended animation following separation. They are entitled to move on with their lives. In Gollings & Scott (2007) FLC 93-319, the Full Court observed as follows:
68.As a general rule once the parties have separated, subject to obligations of maintenance and support, and subject to the type of considerations described in Kowaliw (1981) FLC 91-092 relating to waste, each party is entitled to get on with his or her life independent of the other. The husband would be free to go about spending the money he earned post-separation in the furtherance of his relationship with Ms Y if he chose to do so providing that at the same time he properly met his obligations towards his wife and children for their due support. It would not normally be appropriate some years after separation to require each of the parties to account for any monies they had spent post-separation so as to determine whether or not that expenditure was reasonably necessary for their own self-support, and to the extent that it was not, to determine whether it would be proper to add it back into the pool of assets available for division between the parties. …
Those observations are apposite to this particular instance.
The wife carries the onus of establishing that the husband has failed to make a disclosure. The wife contends that I should find the husband was evasive, non-responsive and failed to answer questions. I do not find that to be the case.
I have no reason to doubt the husband’s assertion that he provided documents to the wife. He volunteered the proposition that the wife was aware of the accounts with K Bank as the bank statements were sent to the home. Whilst it was put to the husband that this was not accurate, no case in reply was called from the wife suggesting that the husband’s propositions were not correct. I accept that the husband has perhaps been tardy in his obligation to disclose, particularly in relation to providing his bank statements for the joint account with Westpac with his current wife. That said, however, I am not satisfied that he has failed to make a disclosure of the Weir kind.
For these reasons, I am satisfied that this is one of those cases where “the effect of the non-disclosure was no more than to complicate the fact finding process” (Franklin & Ennis [2019] FamCAFC 91 at [9]), rather than one which attracts the principles arising from cases such as Oriolo and Weir.
APPROACH TO PROPERTY PROCEEDINGS
The approach to be adopted in a financial adjustment case under s 79 of the Act is to follow the well-recognised four-step process (see Hickey & Hickey & Attorney-General for the Commonwealth of Australia (intervener) (2003) FLC 93-143). Following such an approach, the Court identifies and values the assets and liabilities at the date of hearing for the purposes of division. Secondly, the Court assesses the contributions of the parties within the meaning of s 79(4) of the Act and determines a contribution based entitlement. Thirdly, the Court identifies the relevant matters under s 75(2) and determines such adjustment as is necessary to the contribution based entitlement. Finally, the Court considers the effect of the findings and must then determine whether the order as proposed is in all the circumstances just and equitable.
Consistent with the ratio arising out of the High Court’s determination in Stanford v Stanford (2012) 247 CLR 108, I am of the view that it is just and equitable that an order be made adjusting the property interests of the parties. The parties are no longer living together and there is no longer the common use of their property. The assumptions and undertakings that governed the use of their property ended with separation and both parties sought that there be an adjustive order.
BALANCE SHEET
The parties’ assets and liabilities were captured in a document, which became Exhibit 6 in the proceedings. By the time of submissions, it revealed the following:
Ownership Description Applicant’s Value Respondent’s Value ASSETS 1 J D Street, Suburb E NSW $3,200,000 $3,200,000 2 J B Street, Suburb C NSW $2,250,000 $2,250,000 3 H Funds in Bank - Westpac Not known $991 4 H Funds in Bank – K Bank Country H Not known $768 5 H Funds in Bank – L Bank $378 Not known 7 W Funds in Bank – M Bank …93 $27,561 $27,561 8 W Funds in Bank – M Bank …11 $2,629 $2,629 9 J Funds in Bank – M Bank …08 Nil NK 11 W Motor Vehicle – Motor Vehicle 1 $65,000 $65,000 Total $5,545,568 $5,546,949 LIABILITIES 12 J Mortgages $927,228 $927,228 13 H Credit Card – L Bank Not known Nil Total $927,228 $927,228 SUPERANNUATION Member Name of Fund Type of Interest Applicant’s Value Respondent’s Value 14 H Super Fund 1 Accumulation Interest $1,187,228 $1,187,228 15 W Super Fund 1 Accumulation Interest $738,772 $738,772 16 W Super Fund 2 Accumulation Interest $57,147 $57,147 Total $1,983,147 $1,983,147 TOTAL $6,601,487 $6,602,868
The wife’s counsel submitted that the parties’ bank account balances and the motor vehicle should be removed from the Balance Sheet. No principal reason was advanced as to why that should be and so I do not propose to remove those items from the Balance Sheet. I propose to adopt the figures ascribed by the husband because the wife does not ascribe a value to some of the accounts but will adopt her figure for the L Bank account as the husband does not ascribe a value.
ASSESSMENT OF CONTRIBUTION
I have read all of the evidence relied upon in the proceedings including the exhibits but do not propose to repeat all of it in these reasons. As the High Court reminds in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447:
62. … A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
The assessment in a property case calls for the exercise of a discretion and a holistic value judgment of the respective contributions of the parties. The Court is required to consider all of the contributions of the parties as the Full Court in Dickons v Dickons (2012) 50 Fam LR 244 makes plain:
24. … the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
25.Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “giving overzealous attention to the ascertainment of the parties’ contributions” (Norbis v Norbis (1986) 161 CLR 513 at 524 ; 65 ALR 12 at 18 ; 10 Fam LR 819 at 825 ; [1986] HCA 17) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
26.The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
The Full Court in Horrigan & Horrigan [2020] FamCAFC 25 emphasised and reinforced 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. …
I am also mindful of what the Full Court said in Singerson & Joans [2014] FamCAFC 238 at [66] that for the purposes of s 79 of the Act, there is nothing to suggest that any category of contribution needs to be quarantined and applied solely to particular assets. In my view, the authorities require evaluation of all contributions to the property of the parties, notwithstanding that the categories of property may be different. This view has been confirmed by subsequent Full Courts such as in Jabour & Jabour (2019) FLC 93-898, where their Honours observed that a primary judge should be cautious in emphasising the importance of an increase in value of a particular item of property at the expense of “the myriad of other contributions that each of the parties has made during the course of the relationship” (at [35]).
The consistent theme from the authorities is that the multifarious contributions over the relationship and subsequently of all types are to be assessed in a holistic way.
Guided by such Full Court determination, I propose to assess the parties’ contributions.
FINDINGS AS TO CONTRIBUTIONS
The parties agree that the contributions to the date of separation are equal. From my independent assessment of the evidence, I am satisfied that this is an appropriate concession.
The husband contended that the parties’ contributions to the date of hearing should be found to be equal whilst the wife contended a 2.5 per cent adjustment in her favour in circumstances where she supported the parties’ child Mr G in the period post separation by meeting his educational expenses, as well as the payments that she has made in reducing the mortgage balance and meeting the shortfall in the rental income and improvements to the home.
There was no challenge to the evidence of the wife that in the period post the parties’ separation the wife has met the entirety of the loss in relation to the investment properties, has effected improvements and has also made a capital reduction on the mortgage of some $79,176. I accept her evidence. I am satisfied that, notwithstanding that the wife has had the benefit of occupation, these payments call for an adjustment in her favour. I am not satisfied, however, that the wife’s care of the parties’ child Mr G calls for any adjustment. He was an adult and there is no evidence that this expenditure was something the husband was consulted about or agreed to, or that the tuition costs could not have been met by HECS-HELP. I am satisfied that an adjustment of 2 per cent in favour of the wife is an appropriate percentage adjustment having regard to the wife’s post separation contributions.
Accordingly, I am satisfied that a contribution based analysis leads to the conclusion that the parties’ assets should be divided in the proportions as to 52 per cent to the wife and 48 per cent to the husband.
ADJUSTMENT UNDER SECTION 75(2) OF THE ACT
Each party sought an adjustment in relation to the matters under s 75(2). I accept that the adjustment proposed is a function in part of the contribution finding each urged.
On the part of the husband, he sought an adjustment such that the parties’ assets overall be divided as to 51 per cent to the husband and 49 per cent to the wife. The husband contended that the factors that call for an adjustment in his favour are that he is not working, that he is older than the wife and that he has health issues, whereas in the case of the wife she is younger than him, she has no asserted health issues and according to her Financial Statement earns $5,000 per week by way of income.
The wife for her part sought an adjustment as a consequence of what she asserted was the non-disclosure by the husband of the type identified in cases such as Oriolo and Weir.
I am for the reasons earlier advanced not satisfied that the husband has failed to disclose such that any adjustment is warranted.
I accept the evidence reveals that the husband is 65 years of age and the wife is 61 years of age. In and of itself, I am not satisfied that the disparity in age calls for an adjustment. The wife does not contend that she has any health issues whereas the husband asserts that he has been diagnosed with multiple health issues. The husband contends, which was not the subject of any cross-examination, that the weekly cost of his medications is $280. The husband has re-married and his wife is in receipt of an income of approximately $500 per week.
The wife is in receipt of a significant income. There can be no dispute that the husband has made a contribution to the wife’s income and earning capacity. He also has some health issues which cost him $280 per week. Having regard to all of the matters in support of each party under s 75(2), I am satisfied that taking all of this into account warrants an adjustment in the husband’s favour of 2 per cent.
The consequence of my findings is that the property of the parties will be divided equally.
CONCLUSION
The pool of the parties is somewhat unclear in circumstances whereby the two properties will be sold and there is capital gains tax payable. However, the parties’ other assets including their superannuation entitlements have a total value of $2,080,474. Dividing that amount equally means that each party should receive assets having a value of $1,040,237. Of the current pool of assets the husband has assets having a value of $1,189,365. To give effect to an equal division of the parties’ assets, the husband will be obliged to pay to the wife the sum of $149,128 from his half share of the proceeds of sale of the parties’ properties.
Each party put forward a Minute of Order to give effect to how the assets of the parties should be divided. There were some modest submissions in relation to them.
I am satisfied that the Minute of Order as sought by the husband provides more detail for the purposes of giving effect to the sale of the parties’ jointly owned property and, in those circumstances, I propose to make orders in the terms of the husband’s proposed Minute of Order save that the sale proceeds will be divided in a different manner.
I am of the view that this represents a just and equitable outcome.
I will make orders accordingly.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 19 May 2023
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