Gellner & Gellner (No 3)
[2024] FedCFamC2F 1809
•16 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gellner & Gellner (No 3) [2024] FedCFamC2F 1809
File number(s): SYC 4187 of 2023 Judgment of: JUDGE STREET Date of judgment: 16 December 2024 Catchwords: FAMILY LAW – PROPERTY – no binding financial agreement between the parties – redraws on the mortgage by the wife – equal financial contributions – slightly greater non-financial contributions by the wife impacted by duration of marriage and relatively small property pool- husband has reduced earning capacity –after future needs adjustment - 48% in favour of husband and 52% in favour of wife - no order as to cost Legislation: Family Law Act 1975 (Cth) Cases cited: Browne v Green [1999] FamCA 1483
Dickons & Dickons [2012] FamCAFC 154
DJM v JLM (1998) FLC 92-816
Dovgan & Dovgan [2021] FamCA 306
Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143
Jabour & Jabour [2019] FamCAFC 78
Kildea v Kildea (2007) 38 Fam LR 347
Kowaliw & Kowaliw (1981) FLC 91-092
Manolis v Manolis (No 2) [2011] FamCAFC 105
Milankov & Milankov [2002] FamCA 195
Omacini and Omacini (2005) FLC 93-218
Perrin & Perrin (No 2) [2018] FamCAFC 122
Stanford v Stanford (2012) 247 CLR 108
Division: Division 2 Family Law Number of paragraphs: 161 Date of last submission/s: 6 December 2024 Date of hearing: 5 December 2024 and 6 December 2024 Counsel for the Applicant: Mr S Gardiner Solicitor for the Applicant: One Group Legal Counsel for the Respondent: Mr A Strik Solicitor for the Respondent: Urban Family Lawyers ORDERS
SYC 4187 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GELLNER
Applicant
AND: MS GELLNER
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
6 NOVEMBER 2024
THE COURT DECLARES THAT:
A.The Court considers it is appropriate and just and equitable to alter the property interest of the parties under s79 of the Family Law Act 1975 (Cth) as identified in the following orders.
THE COURT ORDERS THAT:
1.That within 60 days from the date of these orders, the Respondent do all acts and things and sign all documents necessary to pay the Applicant the sum of $560,744.
Sale of Property
2.In the event that the Respondent does not comply with order 1 herein, that 7 days after receiving written notice from the Applicant, the Respondent and Applicant do all acts and things and sign all documents as required to list the Property for sale by public auction on the following terms:
(a)That within two (2) business days, the husband is to provide to the wife a panel of 3 nominated agents and the wife shall thereafter select 1 within 2 days of receiving the husbands nominated panel. If the wife fails to nominate an agent, then the husband is to select an agent from the nominated panel. The agent selected by the wife (or husband failing nomination by the wife) shall be appointed as agent to act on the sale (the Agent);
(b)That within two (2) business days, the husband is to provide to the wife a panel of 3 nominated solicitor/conveyancers and the wife shall thereafter select 1 within 2 days of receiving the husbands nominated panel. If the wife fails to nominate a solicitor/conveyancer, then the husband is to select a solicitor/conveyancer from the nominated panel. The solicitor/conveyancer selected by the wife (or husband failing nomination by the wife) shall be appointed as the solicitor to undertake the conveyancing (the Solicitor)
(c)the costs of and incidental to the Agent and any auctioneer will be borne equally by the parties as and when they fall due;
(d)the sale price at which the Property shall be listed shall be mutually agreed upon by the parties or, in the absence of agreement as recommended by the Agent;
(e)that the auction shall take place no later than four (4) weeks after the Property has been listed for sale by public auction;
(f)the parties shall each co-operate in every way with the Agent including (without limiting the generality of the foregoing):
(i)providing the Agent with a copy of these Orders;
(ii)forthwith instructing the Agent in writing to copy both parties in on all correspondence concerning the sale, feedback from prospective purchasers and any offers;
(iii)making keys available to the Agent;
(iv)allowing inspection of the Property at all reasonable times requested by the Agent;
(v)doing or saying nothing to hinder or prevent a sale being effected;
(vi)ensuring the Property, including the grounds, is in a neat and clean condition at the time of inspection by the Agent and prospective purchasers; and
(vii)signing all documents requested by the agents in relation to the listing for sale of the Property, including but not limited to an Agency Agreement, except a contract or agreement for sale which has not been authorised by the parties’ solicitors.
(g)the Respondent shall each execute a contract for sale in the form prepared by the conveyancers having conduct of the sale and such contract for sale is to be marked with a 42-day completion date unless agreed to in writing by both parties.
3.That the Respondent wife is to provide vacant possession of the Property not less than seven (7) days prior to the completion date of the Contract and shall leave the Property in clean and tidy manner.
4.That pending completion of the sale of the Property under order 6, the Respondent wife will be solely responsible for the payment of the monthly mortgage instalments and the outgoings of the Property.
5.That in the event the Property still fails to be sold in accordance with Order 2 above following an auction pursuant to order 2, then the parties shall continue to hold public auctions for sale, no less than once every 4 weeks, until such time as the Property is sold or as recommended by the Agent.
6.Upon settlement of the sale of the Property, pursuant to order 2 above or order 4 above the parties shall do all acts and things and sign all documents as shall be necessary to cause the proceeds of sale to be applied in the following manner and order:
(a)in payment of the costs of and incidental to such sale, including legal costs and disbursements, the Agent's commission and auction expenses;
(b)in payment of the amount required to discharge the mortgage in favour of Australia and New Zealand Banking Group Limited (the Mortgage) registered over the title of the Property;
(c)payment of 48% of the balance to the applicant husband;
(d)payment 52% of the balance to the respondent wife.
Injunction
7.Pursuant to section 114 of the Family Law Act 1975 (Cth), the Respondent is restrained from any further withdrawal, redraw or drawdown from the mortgage or otherwise seeking to encumber, mortgage or deal in any way with the Property pending compliance with orders 1 or completion of sale in accordance with order 6.
Ancillary
8.That except as provided by these Orders, as and from the date of the Orders and in the future, the Applicant shall retain, to the exclusion of the Respondent, all of his right, title and interest in:
(a)His bank accounts;
(b)Motor vehicle/s registered in his name and in his possession;
(c)is shares and investments;
(d)His superannuation and employment related entitlements;
(e)His compensation payment; and
(f)All other personal property, real estate, including choses in action of whatsoever nature and kind in the possession or control of the Applicant as at the date of these Orders.
9.That except as provided by these Orders, as and from the date of the Orders and in the future the Respondent shall retain, to the exclusion of the Applicant, all of her right, title and interest in:
(a)Her bank accounts;
(b)Motor vehicle/s registered in her name and in her possession;
(c)Her shares and investments;
(d)Her superannuation and employment related entitlements; and
(e)All other personal property, including choses in action of whatsoever nature and kind in the possession or control of the Respondent as at the date of these Orders.
10.That except as provided by these Orders:
(a)The Applicant indemnify the Respondent and keep her indemnified in respect of any actions, claims, suits and demands as may be made against the Respondent in relation to all liabilities in the name of the Applicant, including but not limited to:
(i)Any credit card liability;
(ii)All personal income tax liabilities of the Applicant which are unpaid at the time of the making of these Orders;
(iii)All and any future taxation liabilities of the Applicant;
(iv)Any and all other liabilities in the Applicant’s sole name or jointly with any other person, wherever and however arising.
(b)The Respondent indemnify the Applicant and keep him indemnified in respect of any actions, claims, suits and demands as may be made against the Applicant in relation to all liabilities in the name of the Respondent.
(i)Any credit card liability;
(ii)All personal income tax liabilities of the Respondent which are unpaid at the time of the making of these Orders;
(iii)All and any future taxation liabilities of the Respondent; and
(iv)Any and all other liabilities in the Respondent's sole name or jointly with any other person, wherever and however arising.
11.That in the event that a party refuses or neglects to sign any document required to be signed to comply with this Order, the Registrar of the Federal Circuit and Family Court of Australia is hereby appointed to execute all Deeds and documents in the name of that party and do all acts and things necessary to give validity and operation to this Order pursuant to s 106A Family Law Act 1975 (Cth).
12.The Court reserves its written reasons
Costs
13.In respect of the reserved costs and the application for costs by the applicant, the Court is of the opinion that there are no circumstances that justify the Court in making a costs order taking into consideration all the factors in s 117(2A) Family Law Act 1975 (Cth).
14.The Court reserves its written reasons in respect of the costs order.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
INTRODUCTION
These are property proceedings under pt 8 of the Family Law Act 1975 (Cth) (“The Act”) commenced by the applicant husband (“the husband”) against the respondent wife (“the wife”) on 19 June 2023. The proceedings commenced on 3 October 2023 and were then stood over and continued on 5 and 6 of December 2024.
At the conclusion of the hearing on 6 December 2024 the Court pronounced a declaration and final orders and reserved its written reasons. The Court also then heard arguments on costs and received into evidence material from the husband and from the wife. The Court made an order that it was of the opinion that there are not circumstances that justify the Court making an order under s117(2) of the Act having considered the factors under s 117(2)(a) of the Act and, again, the Court reserved its written reasons.
The husband was born in 1964 in Country D and is currently 60 years of age. The wife was born in Australia in 1970 and is currently 54 years of age. The parties married in Country D in 1987 when the wife was 16 years of age in Country D and cohabitation commenced thereafter with the parties separating on a final basis in November 2022. There are two children of the marriage, the first being their son, Mr E born in 1988 and the second being their daughter, Ms F, born in 1992. The parties matrimonial relationship comprised of approximately 32 years with a hiatus, being described as the first separation from approximately 2010 until mid-2012 when the parties recommenced cohabitation.
The principal asset in the property pool is the matrimonial home acquired in 2012 at B Street, Suburb C (“Suburb C property”). Exchange for that acquisition occurred in early 2012. Settlement in mid-2012 and the parties both moved in together in mid-2012
Prior to the period of separation, the parties, in 2005, purchased jointly G Street, Suburb H, where the parties resided until early 2010. In early 2010, the Suburb H property was sold for the sum of $692,000, resulting in a net sale proceeds of $174,323.60 of which it was dispersed in the sum of $148,175.06 to the wife and a sum of $25,598.06 to the husband. The husband cited a motor vehicle accident in 2021 and has not worked since early 2023.
In the amended application of the final orders, the husband relevantly sought the sale of the Suburb C property and a distribution of the net pool of the assets 50 per cent to the husband and 50 per cent to the wife. The wife in response asked for the dismissal of the application for an alteration of property interests. In the course of the final day of submissions, the husband sought a division of the net pool in the order of 57 per cent in his favour on the basis of equal contributions and an adjustment in respect of his contended inability to work in the order of 7 per cent. The wife sought an assessment of contributions in the order of 66 per cent in favour of the husband and 44 per cent in favour of the wife.
EVIDENCE
The following affidavits were read, with annexures treated as being in evidence:
(1)Affidavit of Mr J (DOB: 1989) (28 August 2024)
(2)Affidavit of Mr E (27 September 2024)
(3)Affidavit of Mr Gellner (3 September 2024)
(4)Affidavit of Ms Gellner (27 September 2024)
EXHIBITS
The following exhibits were tendered into evidence in the proceedings:
(1)Exhibit A: Applicant Husband Financial Statement dated 3 September 2024
(2)Exhibit B: Respondent Wife Financial Statement dated 22 August 2023
(3)Exhibit C: Respondent Wife Tender Bundle
(4)Exhibit D: Applicant Husband Tender Bundle
(5)Exhibit E: Joint Balance Sheet dated 5 December 2024
(6)Exhibit F: Applicant Supplementary Tender Bundle (25 Pages)
CHRONOLOGY
Date Event 1964 Husband is born. 1970 Wife is born. 1987 Parties are married in Country D. 1987 Husband moves to Australia and parties commence cohabitation for the first time. 1988 Parties’ son Mr E (“Mr E”) is born. 1992 Daughter Ms F (“Ms F”) is born. 2004 Parties purchase the property, G Street, Suburb H (“the G Street property”) for $570,000. 2004 – early 2010 Parties reside at Suburb H -both paying mortgage, utilities and outgoings Early 2010 Parties separate Early 2010 Parties sell Suburb H property for $692,000 May 2010 Proceeds of settlement divided as follows: $196,795.10 to the wife; and $34,328.54 to the husband- being net $174,323 to the wife and $25,598 to the husband. Early 2012 Contracts are exchanged for the wife’s purchase of property at B Street, Suburb C (“the Suburb C home”) for
$800,160 – borrowing from Westpac $600,000Late June-early July 2012 Wife and husband to move into the Suburb C home and through taking of husbands income by wife parties jointly pay mortgage and utilities July 2012 to November 2022 Husbnad transfers total of $407,376 to wife In 2020 Wife withdraws $20,000 of husbands super for her benefit without his knowledge. The wife withdraws $20,000 from her superannuation. Late 2021 Husband involved in motor vehicle accident. 2022 The wife observed husband dancing at each of the children’s weddings. 2022 Mr E is married. Husband recorded dancing at wedding. July 2022 Wife alleges domestic violence November 2022 Parties separate on a final basis. November 2022 to February 2023 Wife continues withdrawing funds from husband’s account, are separated under one roof until husband moves out Early 2023 Police apply for ADVO against the husband for the protection of the wife.
The husband is removed from the B Street Property.24 February to date Wife has sole access and benefit of matrimonial home March 2023 Wife transfers her 99% interest on title to her brother’s property back to brother. Wife’s brother pays stamp duty, in the sum of $39,640.00 on the transfer. 26 April 2023 Wife refinances her existing home loan with ANZ bank. She draws down two amounts, $43,640.66 and then a further $256,035.14. 13 June 2023 Husband commences proceedings and joins Wife’s brother to proceedings. Late 2023 Final ADVO hearing at Local Court. Orders made for final ADVO against Husband for protection of the Wife for 18 Months November 2023 Husband rents property for $350pw in Suburb K November 2023- 22 March 2024 Wife redraws $203,000 from mortgage in breach of consent orders Early 2024 Husband emails resignation from employer Early 2024 Husband settles personal injury claim for $350,000 and receives net $214,383 28 March 2024 $204,383 is transferred to Husband’s CBA account, $10,000 transferred to his Westpac Choice account for living expenses, $46,000 applied to repay loans and to family members and $155,700 transferred to account of husband’s nephew APPLICANT HUSBAND’S EVIDENCE
The husband in his affidavit dated 3 September 2024 identified that the parties were married in 1987 in Country D and commenced cohabitation in 1988.
The husband stated that the parties separated on a final basis in November 2022.
The husband indicated that there are two adult children to the marriage with the wife.
The husband referred to being involved in a motor vehicle accident in late 2021 subsequently suffering permanent damage and pain to his body. The husband indicated that he is unable to stand or walk for long periods of time and has a limp.
The husband revealed that he suffered from post-traumatic stress disorder (PTSD), anxiety and depression following the accident and is presently prescribed medication to treat the PTSD and depression.
The husband further stated that he has suffered from medical problems since early 2023 and that he suffers from conditions which he treats with medication.
The husband stated that throughout the relationship until mid-2023 he was employed as a hospitality worker on a full-time basis earning approximately $1,200 each week. The husband ceased working in early 2023.
The husband deposed that he is physically unable to work.
The husband outlined his taxable income for the financial years from 2012 to 2022.
The husband noted that throughout the relationship the wife was employed as a retail worker, community support worker and hospitality worker. The husband noted that the wife remains employed and continues to hold a contract under her company.
The husband identified the wife’s taxable income for the financial years from 2012 to 2018. The husband contended that the wife’s income was not sufficient to meet the mortgage repayments, outgoings, utilities and bills.
The husband deposed that at the time of marriage the parties had nominal assets and liabilities purchasing a property situated at G Street, Suburb H together in late 2005. The parties lived in the property, and both contributed to the mortgage repayments until separation in 2010. Following the initial separation in early 2010 the parties sold the Suburb H property for $692,000 with settlement taking effect in mid-2010.
The husband asserted that the net proceeds of the sale of the Suburb H property amounted to $174,323.60. The husband deposed that of the net proceeds he received the sum of $25,598.06 with the wife receiving the balance of $148,175.06.
The husband identified that the wife purchased a property situated at B Street, Suburb C NSW in mid-2012. At this same time the husband alleges that the parties reconciled and resumed living together in the Suburb C property.
The husband stated that both parties contributed to the mortgage repayments and living expenses of the Suburb C property. The husband noted that he provided the wife with access to his bank account and noted that the wife would transfer between $700 to $800 from his account to her account each week.
The husband alleged that during the period mid-2012 to 3 November 2022 the wife withdrew $407,376.00 from his Westpac account and deposited the sum of $14,805.00.
The husband referred to the wife in May 2020 informing him that she was applying to have the sum of $20,000 withdrawn from his superannuation. The husband deposed that the wife completed the forms and transferred the funds into her account.
The husband recalled lodging a motor vehicle accident compensation claim in late 2021. The husband identified receiving $600.00 per week following the accident up until early 2024.
The husband asserted that the wife had control of the parties’ assets, the husbands income and made all financial decisions.
The husband recalled that his son had created an online gambling account in his name using his Westpac account. The husband asserted that he never agreed for his son to use his bank account details.
The husband alleged that from November 2021 to November 2022 the wife withdrew and deposited funds into his account. The husband identified the total amount withdrawn equalled $105,880.00
The husband recognised that he did not ask his wife or son to stop using his bank account.
The husband alleged that following separation in November 2022 until mid-February 2023 the wife continued to withdraw funds from his bank account.
The husband indicated that due to a provisional ADVO issued in early 2023 protecting the son and wife from the husband he moved out of the Suburb C property. The application for a final ADVO was withdrawn in late 2023.
The husband alleges that the wife has sold the parties assets and retained the sale proceedings also drawing on the equity in the property solely retaining those funds.
The husband identified that his personal injury claim was settled in early 2024 for $350,000. Following distribution of the $350,000 the husband received the balance of $214,383.99 in early 2024.
The husband identified transferring $155,700 of the compensation payment to his nephew’s business account.
The husband stated that his nephew is the sole director and shareholder of L Pty Ltd. The husband noted that he has no interest in the company.
The husband identified that the mortgage to Westpac secured against the Suburb C property was discharged in early 2023, and on that same day a mortgage to ANZ bank was secured against the Suburb C property.
The husband identified a series of transactions from 26 April 2023 to 26 April 2024 by the wife that he alleged increased the ANZ mortgage secured against the Suburb C property from $443,000 to $641,000. The husband asserts that the equity in the property has reduced by $203,000.
The husband expressed a belief that the wife has attempted to reduce the matrimonial pool.
The husband identified that he resides in a property at Suburb K paying rent in the amount of $350.00 per week.
The husband asserted that he does not receive any government payments from Centrelink.
The husband confirmed that his son is living with the wife, together with the son’s wife and son’s daughter and that his daughter lives with her husband and their daughter and that he does not now financially help his children or his grandchildren. One granddaughter has a medical condition, and the husband has not helped with medical expenses.
The husband currently pays $350pw rent. The husband agreed that the wife purchased Suburb C and said that he went back to live with them normally and rejected the assertion that there were no sexual relations or that he lived in an outbuilding. The husband said we lived in the same room, same bed. The husband said we were like husband and wife. The husband rejected the proposition that part of the condition for him coming back to the family home was he had to give his money to the wife so he wouldn’t gamble. The husband said he gave her money because she paid the mortgage and everything.
The husband said he gambles now a little bit and never from 2012 to 2022. The husband said he gambled after separation. Three or four weeks ago the husband gambled about $150. The husband said he stopped gambling because he wanted to stop.
The husband said he did not remember signing any financial agreement in relation to selling Suburb H. The husband said he got about $25,000 and that the wife got about $148,000. The husband confirmed he has spent the funds he got. The husband said we made an agreement for her to find and buy a house for the kids. The husband did not know how much he paid for legal advice in relation to Suburb H. The husband worked a couple of days with his son who paid him after his motor vehicle accident and said it wasn’t hard work. The husband agreed he could dance. The husband said he has a doctor’s report that he is able to lift about 8-9 kilos. The husband stood up and showed the Court where he was injured.
The husband said he gambled at a casino before 2021 and at M Hotel, 2-3 times a year including Melbourne Cup. The husband initially said he had not gambled at N Hotel and then said he did not remember. The husband said he had gambled at a club.
The husband confirmed he transferred his compensation to his nephew, paid his sister back and his nephew, bought some stuff and transferred some money to his parents in Country D. The husband said he had not yet paid his lawyers and denied that he gave the money to his nephew to stop gambling. The husband said he had paid his barrister. From the $215,000 the husband said he has $90,000 left. The husband confirmed the amount transferred to his nephew was $155,000. The husband was also asked about the joinder of the brother of the wife. The husband did not agree that under Country D traditions the woman must submit to the man.
The husband was asked about the AVO and denied putting a product on her clothes and said he had a fight with his son. The husband explained he used the product for his body pain and that they sleep in the same bed. The husband said it was not true that he put it in her clothes. The husband said about $700-$750 a week was taken from his account by his wife. The husband said they moved in together on the same day to the house. The husband said he doesn’t read or write in English. The husband confirmed that the wife purchased the matrimonial home in mid-2012 and that they reconciled and resumed living together at the matrimonial home.
The husband confirmed that the wife did all the paperwork. The husband said he repaid his credit card after they started living in Suburb C. The husband was asked about the withdrawal of $40,000 cash and said he owed some people, gave money to his parents and denied that he was hiding money. The husband confirmed that he gave about $100,000 to his brother during the first stage of the matrimonial relationship for investment and that the sum was lost. The husband said the wife’s parents and brother also put money in the same failed investment.
The husband says he has $806 in his Westpac account, his O Company shares are worth nothing and his motor vehicle worth $800-900. The husband did not dispute that the wife’s former motor vehicle was crashed. The husband denied having any valuables and said his wife has everything. The husband acknowledged smoking with his wife and when separated and spends about $100-$120 on cigarettes a week.
RESPONDENT WIFE’S EVIDENCE
The wife in her affidavit dated 27 September 2024 stated that she was born in Australia and married the husband in Country D in 1987 when she was 16 years old.
The wife identified that she has two adult children with the husband.
The wife recalled that the parties first separated in 2009 and recommenced cohabitation in mid-2012 until final separation in July 2022.
The wife deposed that following the first separation in 2009 the parties entered into a binding financial agreement formalising the separation resulting in the sale of the property situated at G Street, Suburb H.
The wife identified that proceedings were commenced by the husband on 13 June 2023.
The wife stated that the terms of the binding financial agreement provided that she was to receive 85% of the sale proceeds of the G Street property, whilst the husband was to receive the balance of 15%.
The wife deposed that the G Street property settled in mid-2010. The wife indicated that the husband received $34,328.54 which included his share in the proceeds of the sale with his share of the deposit from the agent. The wife stated she would have received approximately $200.000.00
The wife purchased B Street, Suburb C for $800,160 excluding legal fees. The wife noted that she borrowed $600,000 in her name from Westpac. The wife asserted that the husband did not contribute to the purchase price or mortgage of the Suburb C property.
The wife revealed that the deposit to purchase the Suburb C property was made up of funds from the first separation, together with her income and savings.
The wife recalled the husband moving into the Suburb C property into his own room. The wife asserted that the parties did not have a sexual relationship and did not dine out or appear in public together apart from their children’s weddings.
The wife contended that following the initial separation she was responsible contributing to the mortgage repayments and paying for the bills and personal living expenses.
The wife identified her employment history noting that her current main source of income is from her contracting work which she operates under the company P Pty Ltd.
The wife acknowledged the husband’s employment history as a hospitality worker and assisting their son’s company.
The wife deposed that the husband would transfer $600 to $800 each week into her bank account as a safeguard so the husband would not gamble all of his money.
The wife noted that the parties did not have any joint bank accounts together following the first separation.
The wife asserted that she does not have access to the husband’s bank accounts and that the husband did not make any financial contributions or mortgage contributions to the Suburb C property.
The wife recalled an incident where the husband covered her clothes and bed in a product in mid-2022.
The wife alleged that she did not complete the superannuation withdrawal forms. The wife deposed that the husband transferred the sum withdrawn from his superannuation to her so that he could not access the amount at one time.
The wife acknowledged that she transferred her 99% share in the property situated at B Street Suburb C initially purchased by her brother back to her brother for $1.00 in early 2023.
The wife identified that her brother was formally the second respondent and removed from proceedings as a result of orders made on 6 September 2023.
The wife deposed that in early 2024 an ADVO was enforced against the husband.
The wife asserted that the husband was physically, emotionally and sexually abusive throughout the relationship. The wife expressed that the parties arguments were attributed to the husbands gambling. The wife recalled instances where the husband assaulted her and would pin the wife down if she refused to have sex with him.
The wife referred to the husband being involved in a motor vehicle accident in late 2021 and being required to care for the husband following the accident.
The wife acknowledged that she become aware of the husband’s compensation payment of $214,388.99 for the motor vehicle accident in mid-2024.
The wife identified that she suffers from post-traumatic stress disorder and anxiety as a result of the violence she suffered during the relationship.
The wife stated that if she were required to make a payment to the husband, she may not be able to retain the Suburb C property. The wife indicated that her son and his wife and child live at the Suburb C property with her.
The wife stated that she assists in the care of her granddaughter who was born in 2023 with a medical condition.
The wife asserted that she has gifted funds to her daughter and son including compensating them for the money they provided the husband.
The wife outlined her international holidays including holidays to Country D in late 2023 and City Q in late 2023.
In cross-examination the wife acknowledged separating on two occasions and that Suburb C was purchased utilising funds from the sale of the former matrimonial home. The wife confirmed that she can read and write and understands English very well. The money utilised to secure the current matrimonial home in Suburb C was as a result of moneys accumulated during the first tranche of their relationship. The wife’s evidence as to not having sex and living in the outbuilding was challenged and the wife alleged, they were living separate lives. The wife was cross-examined on her acknowledged reconciliation in para 41 of her affidavit., and asserted it was not literally a reconciliation. The wife said she did it for the son and her children and as per Country D tradition. The wife then said she had no choice in having sex as that’s the tradition and being told what to do. The wife volunteered that she did not need him back.
The wife denied that the husband contributed to the expenses and denied that she could not afford to meet the same. The wife was asked about her company and Motor Vehicle 1 that she uses for her business. The wife was asked about obtaining a loan through a finance company and disclosure about how the company is going financially. The wife was asked about telling the finance company in the loan application that she earns about $12,000 a month after tax and said she did not earn about $250,000 gross. The wife was asked about the documents not produced by her accountant Mr R, being the son of Mr S. The wife also said she thought the house was worth $2m in the loan application. The wife said the reference to $12,000 after tax per month was not correct. The wife did not answer directly the question as to what she earns gross every month and confirmed that she understood the word gross. Then said five to six meaning $5000 to $6000.
The wife was asked about the financial statement sworn on 21 August 2023 saying she earns just over $3000 per month and the inconsistency was put to the wife with the evidence she had given this Court. The wife then said $3000 per month was true. The wife was asked about not producing the contract she has with her employer. The wife said she doesn’t think the husband has any interest in her home. The husband’s summary of his taxable income was put to the wife and unresponsively maintained that he was gambler. The wife disagreed she couldn’t meet the expenses without the husband’s income. The wife disputed that she controlled the finances of the husband and then acknowledged that she was doing so. The wife unresponsively said she controlled the finances, and she gave the husband back his money. The wife’s evidence as to the husband being physically and mentally aggressive was challenged and the wife.
The wife was then asked about being above Court orders and the restraint that she breached by withdrawing over $200,000 from 10 November 2023 to 22 March 2024. The wife was asked about giving money to family members. The wife unresponsively to a question to doctor’s reports or evidence said she suffers anxiety. The wife confirmed the son has another property with a mortgage and that he pays the wife no rent and does not contribute to outgoings.
EVIDENCE OF MR J
The husband’s nephew Mr J in his affidavit dated 28 August 2024 identified being the sole director and shareholder of L Pty Ltd.
The husband’s nephew identified that the husband transferred a total of $155,700 into his company’s bank account on 4 April 2024 and 8 April 2024 to hold for him and use to pay the husbands rent, bills and personal expenses.
The husband’s nephew outlined payments made to or on behalf of the husband using the $155,700 deposited into his company’s account. The husband’s nephew stated that as of 28 August the husband has used $24,896.00 with the balance of $130,804.00 remaining in his account for the husband.
The husband’s nephew recalled receiving a letter from the wife’s solicitor on 2 August 2024 enquiring about the funds transferred to him from the husband and recalled being approached by the wife in public in respect of the transfer of funds by the husband.
In cross-examination the nephew confirmed he had seen the husband some and knows he gambles. The nephew said he helps his uncles to pay bills and accepted a purpose was not to waste money. The nephew acknowledged his uncle had some problems with gambling in the past. The nephew was asked about transferring funds and not paying interest. The nephew denied the reason he held the funds was to stop the husband gambling.
EVIDENCE OF MR E
The parties son Mr E in his affidavit dated 29 September 2024 referred to the husband being physically and verbally abusive towards the wife and having a history of gambling.
The parties son identified that he has never received any financial support from the husband and instead has been responsible for supporting the husband financially.
The parties son deposed of the violence committed by the husband against the wife including assault.
Following the parties separation The parties son recalled having a conversation with the husband where the husband promised to stop gambling to return to the Suburb C home. The parties son alleges that the husband continued to gamble and that he was informed in 2010 and 2019 that the husband owes $10,000 to his cousin Mr T.
The parties son asserted that the online betting account is not owned or operated by him.
The parties son alleged that the husband would transfer him money to hold it so that he would not spend it.
The parties son recalled that the husband was employed as a labourer for his business between 2021 to 2022.
The parties son alleged that the husband covered the wife’s clothing and bedroom in a product and upon confronting the husband, Mr E alleged the husband told him he wanted to destroy the wife’s life.
The parties son recalled the husband becoming loud and aggressive towards him and police attending when the husband was banging and screaming on his door demanding money.
In cross-examination the son confirmed he lives in the former matrimonial home and doesn’t lay rent or expenses. It was put that the son was in his mother’s camp and his evidence as to alleged incidents was challenged. It was put to the son that he is estranged from his father. The son alleged the husband’s bed was in the outbuilding. The son dispute that his mother would argue and said she will only fight for her right when he wants to take her money. The son confirmed the husband giving weekly amounts to the wife. The son said the outbuilding was turned into a bedroom.
PRINCIPLES IN RELATION TO ALTERATION OF PROPERTY INTERESTS
In respect to the parties dispute regarding the division of their property these proceedings, s 79 of the Act sets out the following:
(1) In property settlement proceedings, the court may make such order as it considers appropriate:
(a) in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or
…
including:
(c) an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring:
(i) either or both of the parties to the marriage; or
…
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
…
(2) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
In exercising that discretion, the court is required to take into account the matters set out in s 79(4) of the Act, as follows:
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The High Court in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”), at [35] confirmed that before an order is made adjusting the parties property the court is required to make a determination that it is just and equitable to do so. That determination is to be made, however, not as a discrete or preliminary issue but requires the Court to consider the matters set out in section 79(4) of the Act.
In the leading case of Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143, the Full Court held at [39] that, in considering the matters set out in section 79 (4) of the Act the preferred approach was to adhere to the following four steps:
(a)Identify and determine the value of the asset pool of the parties as at the date of the hearing (this necessarily involves identifying both the assets and liabilities);
(b)Identify and assess each of the parties’ financial and other contributions up until the date of the hearing (this can include the financial contributions made before, during and after the marriage);
(c)Assess how future and other events may have a financial impact on either of the parties, such as their age and state of health and their income and property or financial resources (known as the s 75(2) factors); and
(d)Step back and examine this formula-based reasoning against the history of the marriage, intangible considerations and other contingencies so as to consider whether the outcome represents a just and equitable result.
That approach had been endorsed many times: see, for example, Manolis v Manolis (No 2) [2011] FamCAFC 105 at [63] (per Coleman, May and Ainslie-Wallace JJ); Kildea v Kildea (2007) 38 Fam LR 347 at [104] (per Finn, May and Boland JJ); Coghlan and Coghlan (2005) FLC 93-220 at [22] (per Bryant CJ, Finn and Coleman JJ) and [142] (per O’Ryan J). However, as the High Court noted at [35] in Stanford, s 79(2) of the Act provides that the Court shall not make an order altering the interests of the parties to the matrimonial property, “unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. Accordingly, since Stanford, it has generally been the practice of the Court to determine, as an initial issue, whether it is just and equitable to make an adjustment of marital property.
The Full Court in Perrin & Perrin (No 2) [2018] FamCAFC 122 cited at [57]–[58] with approval, the decision in Babett & Falconer (2015) FLC 98-067 at [44]:
Within the family law context, those comments [in respect to the adequacy of reasons] should be seen as reinforced by the fact that the nature of the s 79 inquiry is, in essence, a broad discretionary assessment, which is neither an accounting nor mathematical exercise and which, effectively as a corollary, requires a "broad-brush approach". (Citations omitted)
Is it just and equitable to make a property adjustment?
Contributions
The Court is required to make an assessment of the nature and quality of the totality of the parties’ contributions throughout the entirety of their relationship, together with their contributions in the period subsequent to their separation. In [29] Dickons & Dickons [2012] FamCAFC 154, [14] (Bryant CJ, Faulks DCJ, Murphy J); Jabour & Jabour [2019] FamCAFC 78, [61] (Alstergren CJ, Ryan and Aldridge JJ). See also Dovgan & Dovgan [2021] FamCA 306, [347] (Harper J), which restates the need to holistically assess contributions following the case of Dickons, and that ‘all contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder’.
Addbacks
In general, aCourt exercising discretion pursuant to s 79 of the Act will assess the property of the parties as at the date of the final hearing. An exception to this general principle arises where theCourt notionally add-backs property to the asset pool which has already been dissipated. This concept was explained by the FullCourt in Milankov & Milankov [2002] FamCA 195 at 113:
In several circumstances, well identified by the cases, this first step often involves including in the “pool of assets” items which no longer exist but which in order to do justice and equity to the parties need to be notionally considered in determining what a fair share of the existing pool of assets should be...Frequently this involves a notional consideration of assets which have been in the possession of one of the parties at some time after separation but which have been dispersed for that party’s own use.
In Omacini and Omacini (2005) FLC 93-218 at 79,617, the Full Court identified three categories where it may be appropriate to notionally add back an item of expenditure, as follows:
(1)Where the parties have expended money on legal fees: see DJM v JLM (1998) FLC 92-816 at [85]-[262];
(2)Where there has been a premature distribution of matrimonial assets: see Townsend & Townsend (1995) FLC 92-569 at [81]-[654]; and
(3)In the circumstances outlined by Baker J in Kowaliw & Kowaliw (1981) FLC 91-092 at [76]-[644], including:
(a)Where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets; or
(b)Where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Despite these commonly accepted categorisations it is important to observe that add-backs are a purely discretionary matter for the Court exercising its discretion pursuant to s 79. The Full Court in Browne v Green [1999] FamCA 1483 at 44 stated that:
We agree...that the principles stated by Baker J in Kowaliw certainly do not constitute any form of fixed code. They are no more than guidelines for use in the exercise of the discretionary jurisdiction conferred by s 79 of the Family Law Act 1975. Nevertheless, they have over the considerable period of time since they were enunciated, become a well accepted guideline in this jurisdiction – a guideline the use of which assists in the achievement of the important goal of consistency within the jurisdiction.
SUMMARY OF APPLICANT HUSBAND’S SUBMISSIONS
The Case Outline sought a net pool distribution of 55% to the husband and 45% to the wife. It was submitted that the financial contributions were equal. The wife it was said controlled all the assets and financial resources of the marriage and the husband was reliant on the wife for the same. It was submitted that the wife took advantage of this role. The written submissions contend contribution entitlement by husband no less than 50%. The written submissions addressed the husband’s future needs, the conditions he suffers, alleging no capacity for gainful employment and deterioration of his health in last two years, that the wife has capacity for gainful employment and that there should be no future needs adjustment in the wife’s favour. Mr Gardiner of Counsel on behalf of the husband contended that the relationship had been one in the order of 32 years with a two-year break. Mr Gardiner contended that the funds from the sale of the first home contributed to the acquisition of the matrimonial home registered in the name of the wife. Mr Gardiner submitted that the contentions by the wife were baseless so far as concerns the allegations of family violence and no financial contribution. Mr Gardiner submitted that there was no binding financial agreement that was executed and that the Court could not find that there was any such binding financial agreement in existence. In relation to the period from 2012 until 2022 Mr Gardiner contended the parties continued their relationship as a married couple, and that the husband contributed towards the expenses throughout the marriage and that they lived as husband and wife, and that the wife had control of the income.
In relation to the wife's credit, Mr Gardiner said there were serious issues arising from the alleged income identified in a loan application for the acquisition of a vehicle compared to her financial statement and the income revealed by it. There was also criticism of the wife in relation to her disclosure of an employment contract of the wife’s company and a substantial criticism in respect of the non-compliance with and disregarding of Court orders in respect of redraws upon of the mortgage over the property at Suburb C, being the matrimonial home. Mr Gardiner submitted that it was a wilful departure from the Court orders. Mr Gardner submitted that it was appropriate to take into account the compensation received by the husband under s 75(2)(o) of the Act as well as the amounts the subject of the redraws by the wife that had otherwise been identified as add backs in respect to the conduct of the wife in not complying with the injunction.
Mr Gardner submitted that the husband was prevented from working and did not accept that the husband was merely impaired in relation to his capacity to work. Mr Gardner submitted that there should be an adjustment in the order of 7% in favour of the husband because of his inability to work. Mr Gardiner further submitted that the assessment in respect of the net pool should be in the order of 57%. Mr Gardiner accepted that the financial resources in respect of the superannuation could be treated as a separate pool to be taken into account by the Court. Mr Gardiner submitted that the Court should be sceptical of the son's evidence, given the circumstances in which he was living, effectively, rent and contribution-free in the matrimonial home, the subject of the proceedings, the son’s consequential interest for himself and his family in the outcome of these proceedings and that the Court should not accept the son's evidence as to the alleged family violence. It was just and equitable to make a Court adjustment in the percentage sought by the husband.
Mr Gardiner submitted that there should be costs in favour of the husband from the time of commencement of the proceedings. Mr Gardiner focused on the response that was filed which contended that there should be a dismissal of the application for alteration of property interests under s 79 of the Act. Given that the husband had achieved a better result than that identified in the letter of 22 January 2024, costs should be ordered in favour of the wife. Mr Gardiner relied upon the communications that were marked exhibit H, and Mr Strik relied upon communications that were marked exhibit I. Mr Gardiner contended that the husband should have a favourable costs order by reason of three separate considerations under section 117(2)(a) of the Act. First, the conduct of the proceedings. Secondly, it was contended that the husband had been wholly unsuccessful and thirdly, in relation to the three letters of offer subject of exhibit H, one dated 22 January 2024, one dated 28 June 2024, and one dated 8 October 2024. Mr Gardiner submitted that the letters should be looked at collectively with the limited replies in terms of realistic engagement with settlement discussions revealed in exhibit I.
SUMMARY OF RESPONDENT WIFE’S SUBMISSIONS
The wife’s Case outline alleged family violence and excessive gambling and that the parties entered a binding financial agreement in May 2012. The written submissions contended a limited resumption of the relationship with the husband in the outbuilding in 2012 and that the husband made no financial contributions and that she held the husband’s funds to stop his gambling. The wife contends in respect of future needs she suffers anxiety and PTSD as a result of abuse from the marriage and that there should be no adjustment for future needs of the husband. The written submission contended that there should not be any property adjustment and that each party retain their respective assets.
Mr Strik of Counsel on behalf of the wife admitted that the period for payment should be increased to 90 days. Mr Strik identified that there had been tax returns for the wife's company that had been provided in the course of disclosure, but could not identify an employment contract as being produced and accepted that there was no executed binding financial agreement.
Mr Strik identified that the parties had effectively agreed upon the allocation of the proceeds of sale of the first matrimonial home and that whilst there was no financial agreement, it was the husband who had lost the funds he had been provided with while the wife had used the funds potentially in acquiring the current matrimonial home. It was submitted that the wife had made the greater financial and non-financial contribution, taking into account also the activities in which it was alleged the husband engaged in gambling and smoking. Mr Strik submitted that the contribution should be assessed 66 per cent in favour of the wife and 44 per cent in favour of the husband.
Mr Strik referred to the substantial contribution to family life, including adult children and grandchildren made by the wife as opposed to the absence of contribution in that regard by the husband. Mr Strik admitted that the gambling by the husband meant that he wasn't contributing in his role as a homemaker, and that the Court should take into account that his client was what he called a child bride. Mr Strik advanced that the second period between 2012 and 2022 was not one of a relationship as husband and wife and that the husband had effectively been living in a shed pursuant to an agreement made between the husband, his son and the wife, that the husband would be let back into the home because of the concerns expressed by the son, and his embarrassment in his community. Mr Strik further contended that the wife’s receipt of the husband’s income was to prevent him spending the same on gambling. Mr Strik said that any adjustment in relation to the employability of the husband should be negligible, and no more and less than 3 per cent.
In relation to the payment of $39,000 towards legal fees from the mortgage, Mr Strik contended that it should be looked at through the lens of the effect it had on mortgage, which was said to be only in the order of $30,000.
In relation to costs, upon pronouncement of the substantive orders, and the correspondence then tendered, Mr Strik drew attention to the limited period in the time for payment in the offers which each identified a time period of 14 days, which Mr Strik submitted was wholly unreasonable. Mr Strik submitted that there should be no adverse costs order. Mr Strik identified that at the time of the second offer in the letter dated 28 June 2024, there had still not been disclosure of the substantial compensation sum received by the husband until the sending of the letter on 10 July 2024.
BALANCE SHEET
| Ownership | Description | Applicant Husband’s Value | Respondent Wife’s Value | Court’s Findings |
| ASSETS | ||||
| R | B Street, Suburb C NSW | $1,800,000 | $1,800,000 | $1,800,000 |
| R | P Pty Ltd | $100,000 | 0 | 0 |
| R | U Company Shares | $2,895 | $3,661 | $2895 |
| R | Westpac Choice account ending #...38 @ 5/12/2024 | $40,745.46 | $20,519.00 | $20,519 |
| R | Westpac Choice account ending #...29 @ 5/122024 | $75.30 | $145.00 | 75.30 |
| R | Westpac Life account ending #...40 @ 5/12/2024 | $700.00 | $466.00 | 700 |
| R | ANZ One Offset account ending #...78 @5/12/2024 | $11,772.34 | $12,215.00 | 11,772 |
| R | Motor Vehicle 2 | $5,000 | 0 | 0 |
| R | Household contents | Not known | $1,000 | 0 |
| R | Other personal property | Not known | $500 | 0 |
| A | Westpac account ending #...29 | $12.16 | $12.16 | 12 |
| A | CBA Smart Access account ending #...63 | $79.96 | $79.96 | 79 |
| A | O Company Shares (200 shares) | $1,000 | $1000 | 1000 |
| A | Motor Vehicle 3 | $3,000 | $3,000 | 3000 |
| A | Household contents | $500 | Not known | 0 |
| A | Other personal property | $0 | Not known | 0 |
| A | Funds remaining from motor vehicle injury | $0 | $130,000 | 0 s75(2)(o) |
| SUB-TOTAL | $1,965,780.22 | $1,971,506.00 | 1,840,052 | |
| ADDBACKS | ||||
| R | U Company Shares | $12,891 | 0 | 0 |
| R | Funds drawn down on ANZ Home Loan in breach of orders made on 19 June 2023 | $203,000 | $180,000.00 | S75(2)(o) |
| R | Funds drawn down on ANZ Home Loan in breach of orders made on 19 June 2023 | $39,000 | S75(2)(o) | |
| SUB-TOTAL | $254,891.00 | $180,000.00 | 0 | |
| LIABILITIES | ||||
| R | ANZ Home Loan secured against property | $641,049.00 | $700,000.00 | $671,835 |
| SUB-TOTAL | $641,049.00 | $700,000.00 | $671,835 | |
| Total Net Assets (without Super) | $1,168,217 | |||
| SUPERANNUATION | ||||
| R | Super Fund 1 balance @ 1/10/2024 | $40,179.86 | $40,179.86 | $41,677 |
| A | Super Fund 2 - subject to disclosure | $187,094.20 | $187,094.20 | $193,272 |
| SUB-TOTAL | $227,274.06 | $227,274.06 | ||
| FINANCIAL RESOURCES | ||||
| A | MVA Compensation Payment $214,383 2024 | $130,804.00 | N/A - See item 18 | S75(2)(o) |
| SUB-TOTAL | $130,804.00 | |||
FINDINGS AND CONCLUSIONS
The Court finds that the identity and value of the property and liabilities of the parties are as identified in the third colour of the above balance sheet, as are the financial resources. In general the Court finds that the wife was not a credible witness and that her evidence as to car loan and income materially diminishes the reliability of her evidence. The wife was also an evasive witness being unresponsive on a number of occasions and advocating her case. The Court also accepts that the limited disclosure by the wife as to the contract with her company is a material breach of the wife’s duty of disclosure and more readily supports the favourable inferences to the husband open on the evidence. The breach of the interim injunction by the wife also impacts on the adverse assessment of her credit. In general the Court finds the husband was a witness of truth. The Court finds it was reasonable for the husband to join the wife’s brother as a second respondent given the transactions involving B Street, until his removal as a party on 6 September 2023.
The Court finds that it would not be just and equitable for there to be no property adjustment and rejects the contention that there was a binding financial agreement entered into May 2010. No such agreement has been put into evidence and the Court finds no such agreement was executed by the parties, nor were the statutory requirement otherwise satisfied for the alleged binding financial agreement in May 2010.
Whilst the Court accepts that there were redraws by the wife in breach of a Court injunction in the order of $203,000, the Court is satisfied as a matter of discretion that this should be taken into account under section 75(2)(o) of the Act. In relation to the resources received by the husband at the time of payment of compensation in early 2024 and now comprising only the sum of $130,000 the Court is satisfied that this is an amount that should be treated as a financial resource as a matter of discretion under section 75(2)(o) of the Act. The Court does not accept that the U Company shares disposed of by the wife on 14 August 2023 should be treated as an add back and accepts they were applied towards daily living expenses.
The Court has also as a matter of discretion treated the parties superannuation, to which neither is presently entitled, as a separate property pool from that of the other assets and liabilities in identifying the net property pool of $1,168,217. The Court has also identified that it would take into account the withdrawal from the mortgage account on the matrimonial property by the wife in the sum of $39,000 to pay legal fees under as a matter of discretion under s 75(2)(o) of the Act rather than as an add back. The Court notes that this approach in respect to the add backs was not opposed by the parties.
In relation to the second step required in relation to Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143, the Court must assess the contributions of the parties and express them as a percentage of the value of the property. The Court has taken into account the substantial period of the matrimonial relationship, finding that, in fact, the parties continued their cohabitation from 2010 to 2012 as a married couple as they had before from 1987 until 2010. That very substantial period of marriage impacts on the assessment of the financial and non-financial contributions. That duration diminishes the differential in non-financial contributions. The Court accepts that each party had limited assets at the time of the commencement of the relationship and, through the financial earnings of both parties, acquired the first matrimonial property that was sold in 2010. The Court finds in relation to the financial contribution that the parties contributed equally to the acquisition of the first matrimonial property that was sold in 2010. The Court finds that the wife’s greater non-financial contributions, including as a mother and home maker, during the first period were not such that justified the non-binding property split by the parties and that in % terms the overall entitlements at the sale of the first matrimonial property, would have been practically equal given also the small apparent net property at that time.
In relation to the Suburb C property acquired in 2012, the Court finds that it was purchased in almost equal part with proceeds of the sale of the first matrimonial property, and that the husband had an almost equal financial contribution to the acquisition with the wife. The Court finds that the parties made almost equal financial contributions to the acquisition of the current matrimonial home and accepts the husband’s evidence as to his financial contributions being applied towards the mortgage and expenses during the matrimonial relationship from 2010 until 2022. The Court rejects the wife’s contention of holding funds to prevent gambling and finds without the husband’s almost equal contributions the wife would have been unable to meet the mortgage, utilities and outgoings. The Court accepts the husband contributed $407,376 to the wife’s account from July 2012 to November 2022 and a further $20,000 withdrawn from the husband’s super by the Court finds the wife. The Court also accepts the husband’s evidence that, in fact, his financial contributions continued until February 2023. The Court finds that the parties made equal financial contributions to the matrimonial home that was purchased in 2012.
In relation to the non-financial contributions, it is apparent that, as at 2010, one child was almost an adult and the other was, in fact, an adult, and that over the period of the relationship from 1987 to 2020, the wife had made greater contribution in relation to homemaker and the care of the children, given the substantial duration of the marriage from 1987 to 2010 and 2012 to 2022, the more substantial homemaker and parenting contributions by the wife are ones that reflect the nature of this particular matrimonial relationship of the parties reflective in part of their culture and the overall period of 32 years lessens the difference between the parties in the nature and extent of those contributions. The relatively small property net pool today also diminishes the significance of the difference in those contributions by the parties. Given the adverse credit finding in relation to the wife the Court does not accept that this is a case where the Court can make findings of family violence by the husband and, given his interest in the outcome of these proceedings, places no weight on the evidence of the son. In these circumstances, while the Court finds that there was overall a greater non-financial contribution by the wife to the net value of the property pool, the Court finds that the husband also contributed as a homemaker and to the welfare of the family during the matrimonial relationship. The Court accepts that in the first period from 1987 to 2010, that the husband must have been mildly diminished from his homemaker contributions at least in part by undertaking some gambling activities.
The Court does not accept that the gambling activities were excessive or that there was conduct of the husband that reflected or amounted to waste from gambling, nor does the Court accept that the smoking by the husband was unreasonable or reflective of waste. The Court prefers the evidence of the husband that he stopped gambling, effectively, from 2010 until 2022. Taking into account all of the circumstances, the Court is of the view that the appropriate percentage referable to the financial contributions of the parties is 55 per cent in favour of the wife and 45 per cent in favour of the husband. This would effectively represent, in monetary terms, a sum of $642,519 to the wife and $525,687 to the husband.
Turning to the factors under s75 including 75(o) of the Act, and s 79(4)(d) to (g) of the Act, the Court has identified above the age of the parties. The Court accepts that the husband has had his health impacted by the accident he sustained in 2021 and that he is taking a series of medications, and that he has ongoing problems from that accident, which has had a significant impairment on his ability to work. In relation to the wife, the Court accepts that she has suffered anxiety and depression in relation to her circumstances but does not accept that it has impacted on her ability to work. The Court accepts that the husband has the greater future needs given his diminished earning capacity.
In relation to s75(2) of the Act, the Court has taken into account the property and financial resources of the parties as identified in the above balance sheet and finds that the income of the husband is currently nil and that the income of the wife is in the order of $1456 a week. The Court notes, to the extent that the wife gave a higher figure to a lender for the acquisition of a vehicle through a company, the Court regards the income of $12,000 per month as an embellishment that impacts on the credit of the wife. The Court does not accept that the wife has a monthly income of the sum identified in that motor vehicle loan application.
In relation to the financial resources, the Court has identified in the above balance sheet those matters, and the Court finds that the wife has a capacity, both physical and mental, to undertake appropriate gainful employment. The Court finds that the husband’s capacity, physically and mentally, to undertake appropriate gainful employment is significantly impaired. Whilst it was submitted that the husband had no ability for gainful employment, the Court does not go that far, given the evidence that the husband gave about what he could lift and finds that he could obtain some part-time employment of a limited nature.
In relation to s 75(2)(c) of the Act, the two children are now adults.
In relation to s75(2)(d) of the Act, the Court has taken into account the current commitment of each party. In relation to the husband, his current rent, and in relation to the wife, her current payment of the mortgage and has taken into account what is necessary to enable each party to support himself or herself and that there is no current child that either has a duty to maintain.
In relation to s75(2)(e) of the Act, the Court accepts that the wife has living with her the son of the parties and a granddaughter and daughter-in-law.
In relation to s75(2)(f) of the Act, neither party appears to be on any pension.
In relation to s75(2)(g) of the Act, the Court has taken into account that the parties are separated and is satisfied that the proposed orders will provide a standard of living that in all the circumstances it is reasonable.
In relation to s75(2)(h) of the Act, this has no application in relation to section 75(2)(ha) of the Act as there is no relevant creditor to consider.
In relation to s 75(2)(j) of the Act, this has no application.
In relation to s 75(2)(k) of the Act, the duration of the marriage was effectively 32 years, and, as a result of the motor vehicle accident sustained by the husband during the marriage, he has a reduced earning capacity. There is no issue of maintenance under consideration.
In relation to s75(2)(l) of the Act, this has no application.
In relation to s 75(2)(m) of the Act, the wife is cohabitating in the matrimonial home with her son and daughter-in-law and grandchild, who make no contribution to the mortgage or outgoings. The husband is residing in a property paying the sum of $350 per week.
In relation to s 75(2)(n) of the Act, the Court has taken into account the terms of the orders proposed to be made.
In relation to s 75(2)(naa) of the Act, there is no agreement under pt 8AA of the Act to take into account.
In relation to s 75(2)(na) of the Act, this has no application.
In relation to s 75(2)(o) of the Act, the Court takes into account the significant amount of $203,000 that the wife received as draw-downs on the mortgage at a point of time where there was an injunction in place requiring her not to do so. The Court has also taken into account that the wife paid the amount of $39,000 from the mortgage account in favour of legal fees. Those two amounts have swollen the amount of the liability through the mortgage on the principal asset being the matrimonial home. The Court has also taken into account the compensation received by the husband as a result of his motor vehicle accident that has now reduced to an amount of $130,000. The Court has also taken into account the superannuation of the parties with a difference of about $150,000 in favour of the husband and that if there had been a superannuation split, there would have been an amount of $75,000 that would have been required to be paid to the wife.
In relation to s 75(2)(p) of the Act, there is no financial agreement binding on the parties.
In relation to s 75(2)(q) of the Act, there is no agreement under pt 8AB of the Act that is binding on the parties of the marriage.
In relation to s 79(4)(d) of the Act, the Court has taken into account the effect of the proposed orders on the earning capacity of the parties to the marriage. The proposed orders will not prevent the wife continuing to engage in her earning capacity and do not prevent the husband, to the extent that he is able, to engage in remunerative activity.
In relation to s 79(4)(f) of the Act, the Court has taken into account the effect of these orders on the husband and the wife and, whilst there is no child who is still a child, the son of the parties, who is an adult, together with his spouse and child will be affected by the orders in relation to the requirement for a payment or sale, if payment is not made.
In relation to s 75(4)(g) of the Act, there is no child support to be taken into account.
Taking into account all of these matters, the Court is satisfied that a further adjustment must be made under section 75(2)(o) of the Act taking into account the diminished earning capacity of the husband and also taking into account the differing age of the parties. In all the circumstances, the Court is of the view that an adjustment of three per cent in favour of the husband is just and equitable, which would reflect a percentage sum, which would reflect the sum of $607,472 to the wife and $560,744 to the husband.
The Court has considered the above matters and is satisfied that the proposed orders are just and equitable in all the circumstances. The Court is not satisfied that there should be an increase in the time for payment as advanced on behalf of the wife and finds that the period of 60 days, notwithstanding the time of year is fair and reasonable.
It is for these reasons the Court makes the above property orders
Costs
The Court has taken into account the oral submissions and the written submission of husband in relation to material in exhibit H and exhibit I, as well as taking into account that costs were reserved in respect of an application in a case filed on 27 November 2024 that this Court described as vexatious.
In relation to the conduct of the proceedings under s 117(2A) of the Act, the response filed by the wife does not reflect a realistic assessment of the nature of the s 79 of the Act proceedings, and the filing of an Application in a Proceeding on 27 November 2024 by the wife to have the proceedings dismissed was hopeless. However, the Court notes that that Application in a Proceeding was disposed of within minutes by this Court on a day that otherwise proceeded as a substantive hearing day. Referring to the conduct of the proceedings by the wife, the Court is of the opinion that they are not circumstances that justify the Court in making an adverse costs order.
The Court turns to the second proposition of asked by Mr Gardiner in which it was contended that the wife had been wholly unsuccessful in the proceedings. The difficulty with contention is that the Court has made an order for alteration of property interests, but the wife has received a greater percentage from the net property pool than that of the husband. Whilst it is the case that the wife asked for the proceedings to be dismissed, the Court does not regard the outcome of the proceedings as one that could properly be characterised as the wife being wholly unsuccessful. The Court is of the opinion that the circumstances in relation to the outcome of the proceedings do not justify the Court in making an adverse costs order. In relation to s 117(2A)(f) of the Act, the Court has taken into account the terms of the offers to settle. In that regard, the settlement offer letter dated 22 January 2024 is very close to the amount that was ordered by this Court. Whilst it may be said that the amount is slightly less than the sum ordered by this Court, in the orders of $10,000, the Court accepts Mr Strik's submission that the 14 day period for payment was not reasonable or realistic.
The absence of response to the offers made by the husband and the nature of the response that was then made when offers were advanced has been taken into account by the Court. The Court notes that settlement offer the letter dated 28 June 2024, whilst in the order of $60,000 below the amount which the Court ultimately ordered to the husband, was at a point in time when the husband had not disclosed the receipt of a compensation settlement in early 2024, and that did occur until 10 July 2024. That, together with the 14 days, impacts in the Court's assessment of the factors under s 117(2A) of the Act.
In relation to the settlement offer letter of 8 October 2024, while it referred to a sum of $500,000 in paragraph 1, it had an add back figure that required the bringing back in of $240,000, which, if split, would have been above the amount ordered by the Court. The Court is not of the opinion that there are circumstances that justify the Court making an adverse costs order by reason of s 117(2A)(f) of the Act. The Court has turned to consider the whole of the factors to which it's required to have regard under s 117(2A) of the Act. A material factor the present case is the financial circumstances of each of the parties. The financial circumstances are not substantial, and, in that regard, the husband does not have readily available the cash resources to meet the costs of the wife.
The Court accepts that it could be deducted from the proceeds of sale that are the subject of an adjustment in favour of the wife. However, including the financial circumstances in all the circumstances as a whole as identified in the balance sheet referred to above and all the factors under s117(2A), the Court is of the opinion that the circumstances do not justify the Court in making an adverse costs order against the husband. The Court in this regard has taken into account the conduct advanced by the husband in relation to s117(2A)(c) of the Act, the arguments in relation to s 117(2A)(e) of the Act and the offers referred to in s117(2A)(f) of the Act.
The Court has also taken into account under s 117(2A)(g) of the Act that these are proceedings that have arisen in circumstances where each party failed to complete a binding financial agreement at the end of 2010 and where the matrimonial property, then acquired into which both moved in at the same time, was put into the name solely of the wife and where the parties had agreed between themselves a division of the first matrimonial home. That division of the first matrimonial home is not one that the Court regards as an alteration that would have been made by this Court and is neither binding nor enforceable. It is apparent that the proceeds of the sale of the first matrimonial home were ones in which the husband had a substantially greater interest than the amount he received, that the wife in this regard took advantage of financial control in that informal division and the Court has taken that into account in relation to the financial contributions by the husband. Had the husband directly participated in the acquisition of the second matrimonial home, part of the conflict in these proceedings may not have arisen, however contrary to the contentions of the wife, the Court finds the parties reconciled and resumed their matrimonial relationship. The absence of direct participation by the husband in that acquisition to ensure his name was included on the title is consistent with the financial control exercised by the wife throughout the matrimonial relationship and the wife taking advantage of that role. Whilst the exchange occurred before resumption of cohabitation the Court infers that the exclusion of the husband from the title and the taking of a much greater share of the proceeds of the sale of the first matrimonial home were part of that financial controlling behaviour by the wife.
The wife was firmly of the view that it was her property, and it was not one to which the wife accepted there should be any alteration of interest in favour of the husband in the response filed. The Court accepts that the husband had an inability to read and understand English and that the wife throughout the matrimonial relationship took on the role of exercising financial control, including in relation to the transactions for the purchase and sale of property. The Court regards the fact that the second matrimonial home was placed in the name of the wife, even though utilising a share of funds to which the husband would have been entitled, as another relevant matter in relation to the discretion to be exercised under s 117 of the Act in considering whether or not the Court is of the opinion that there are circumstances that justify the Court in making the costs order in favour of one or other party. In all the circumstances, having regard to each of the matters under s 117(2A) of the Act, to which the Court has referred, the Court is not satisfied that there are circumstances that justify the Court in making an adverse costs order against the wife in favour of the husband.
The Court is also of the view that the circumstances under s 117(2A) of the Act, to which the Court has referred, including, particularly, the financial circumstances, do not warrant the Court finding that there are circumstances that justify the Court in making an adverse costs order in the respect of the application in a proceedings that was dismissed and on which costs were reserved.
It is for these reasons the Court declined to make any cost order as sought by the husband
I certify that the preceding one hundred and sixty-one (161) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 16 December 2024
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