GOWDA & MALIK
[2020] FCCA 2519
•22 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GOWDA & MALIK | [2020] FCCA 2519 |
| Catchwords: FAMILY LAW – Final hearing – property settlement – where parties are separated under same roof – where contributions favour husband by five per cent – where no adjustment should be made – where superannuation should be divided equally between the parties. |
| Legislation: Family Law Act 1975 (Cth), ss.75, 79, 90XT, 106A |
| Cases cited: Hickey & Hickey & Attorney-General for the Commonwealth of Australia (‘Hickey’) [2003] FamCA 395 |
| Applicant: | MS GOWDA |
| Respondent: | MR MALIK |
| File Number: | SYC 407 of 2018 |
| Judgment of: | Judge Morley |
| Hearing date: | 1 November 2019 |
| Date of Last Submission: | 15 January 2020 |
| Delivered at: | Sydney |
| Delivered on: | 22 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Breeze |
| Solicitors for the Applicant: | Family Law Group Pty Ltd |
The Respondent appeared on his own behalf.
ORDERS
The Court makes an order under section 79 of the Family Law Act 1975 (Cth) as follows:
(a)That the husband is the sole owner in law and in equity as between himself and the wife of his shareholding in Company B and his shareholding in Company C, the real property at D Street, Town E in the State of New South Wales, his savings in F Bank account #...42 and the Motor Vehicle 1 in his possession.
(b)The wife is the sole owner in law and in equity as between herself and the husband of her shareholding in the Company G and her savings in F Bank account #...08.
(c)The husband is solely liable as between himself and the wife for repayment of the loan account in his name with the Commonwealth Bank of Australia Limited secured by way of mortgage on the property at D Street, Town E, in the state of New South Wales.
(d)That prior to a settlement of the sale of the property at H Street, Suburb J, in the state of New South Wales (‘the H Street, Suburb J property’), the parties shall divide equally between them by agreement the contents of the H Street, Suburb J property not being the property of Mr K or Ms L, and in the event that within seven days after the exchange of contracts for sale of the H Street, Suburb J property the parties have not reached agreement in relation to that division of the contents then the wife will prepare two lists, list A and list B, each containing one half of the said contents of the H Street, Suburb J property and no later than 14 days after the exchange of contracts for sale of the H Street, Suburb J property the wife will present list A and list B to the husband and the husband will select one of list A or list B, after perusing those lists for no more than 60 minutes, and will communicate which list he has selected to the wife. Immediately thereupon, the items on the list selected by the husband shall become his sole property in law and in equity as between himself and the wife, and the items on the list the husband has not selected will become the sole property of the wife in law and in equity, as between herself and the husband.
(e)That within two months from the date of these orders, the parties shall sign all documents and instruments and do all things necessary to list for sale the H Street, Suburb J property at a listing price agreed upon between them with a real estate agent agreed upon between them and shall proceed to a sale of the H Street, Suburb J property at a sale price agreed upon between them and, following such sale, the proceeds of sale of the H Street, Suburb J property shall be applied as follows:
(i)In adjustment of rates on settlement;
(ii)In payment of the agent’s commission (if any) on sale;
(iii)In payment of legal and all other proper costs of sale; and
(iv)In division of the then remaining proceeds of sale between the husband and the wife so as to achieve an overall property settlement division between them on the basis that the husband receives 55 per cent thereof and the wife receives 45 per cent thereof on the basis that prior to such division the husband has $211,072 worth of the net matrimonial assets available for division between the parties and the wife has $31,120 worth of the net matrimonial assets available for division between the parties.
(f)That in accordance with section 90XT(1)(a) of the Family Law Act 1975 (Cth) whenever a splittable payment becomes payable from the interest of Mr Malik in the Employer B Superannuation Plan (‘the Plan’) the trustees of the Plan shall pay to Ms Gowda the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using a base amount of $62,664 and there is a corresponding reduction in the entitlement Mr Malik would have had in the Plan but for these orders.
(g)That order 1(f) hereof takes effect from the operative date, being the fourth business day after service of a sealed copy of these orders on the trustees of the Plan.
(h)The husband is the sole owner in law and in equity as between himself and the wife of all personal property, financial assets and financial resources other than as dealt with specifically elsewhere in these orders.
(i)That the wife is the sole owner in law and in equity as between herself and the husband of all personal property, financial assets and financial resources other than as dealt with specifically elsewhere in these orders.
That in the event that either party fails, refuses or neglects to execute any deed or instrument necessary to give effect to all or any of these orders then the Registrars of the Federal Circuit Court of Australia Sydney Registry are appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed or instrument in place of the party that has so refused, failed or neglected and to do all acts and things necessary to give validity and operation to the said deed or instrument.
IT IS NOTED that publication of this judgment under the pseudonym Gowda & Malik is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 407 of 2018
| MS GOWDA |
Applicant
And
| MR MALIK |
Respondent
REASONS FOR JUDGMENT
These are property settlement proceedings under the Family Law Act 1975 (Cth) (‘the Act’) between the applicant wife, Ms Gowda (‘the wife’) and the respondent husband, Mr Malik (‘the husband’) arising from the breakdown of their marriage.
The parties were married in Country M, their mutual country of origin, in 1994. They had not cohabited prior to their marriage. They have two children, both of whom are now adults. They separated in May 2013 and were divorced on 17 April 2018, with their divorce becoming final on 18 May 2018.
The wife was 48 years of age and the husband 51 years of age at the time of the hearing. They are both in full-time employment.
The proceedings up to the hearing
The proceedings were commenced by the wife filing her Initiating Application seeking final property orders on 17 April 2018. The husband filed his Response on 16 June 2018. The parties had a conciliation conference with a Registrar on 1 November 2018, but were not able to pursue meaningful negotiations as there had been a failure of disclosure by the husband in relation to a property, purchased by him after separation, at D Street, Town E in New South Wales. An order was made by the Registrar that the husband pay the wife’s costs of the conciliation conference in the sum of $2,200.
On 3 May 2019 the matter was set down for a final hearing on 18 October 2019 and trial directions were made.
The matter was heard on 18 October 2019 and 1 November 2019. At the end of the second day, orders were made for the parties to file and serve written submissions. On 15 January 2020 an order was made closing the hearing and reserving judgment.
The material relied upon
The wife relied upon the following material:
a)Her Initiating Application filed 17 April 2018;
b)A Case Outline document prepared by her counsel, Mr Breeze, and tendered as exhibit A7;
c)The affidavit of the wife sworn and filed 18 September 2019;
d)The wife’s Financial Statement sworn or affirmed 5 April 2018 and filed 17 April 2018, and tendered as exhibit A3; and
e)Written submissions on behalf of the wife prepared by Mr Breeze.
The wife also relied upon the following documents admitted into evidence and marked as exhibits:
a)Exhibit A1, being the wife’s shareholding statement with N Pty Ltd as at 17 October 2019, relating to 216 Company G shares with a value at that date of $17,371.80 ($80.425 per share);
b)Exhibit A2, being a F Bank statement number ...73, for accounts in the wife’s name between 1 July 2019 and 30 September 2019, for account number ending ...65 and account number ending ...08;
c)Exhibit A4, being Employer B Credit Union statement of account for accounts in the husband’s name for the period 1 April 2013 to 30 June 2013, being a ‘Savings Account Zero’ account ending #...15 and ‘Loan Account 5’ending #...40, and, in particular, showing a debit in the sum of $4,906.93 on 22 April 2013 “to Country O” and a debit of $12,062.59 on 24 May 2013 “to Country O”;
d)Exhibit A5, being F Bank statement numbered 116 for three accounts in the husband’s name for the period 1 January 2016 to 31 March 2016, being a ‘Savings Account Zero’ account ending #...15, a ‘saver’ account ending ...65, and ‘Loan Account 5’ ending #...40, and, in particular, showing a debit of $19,676.93 on 4 March 2016 “to Country O”;
e)Exhibit A6, being:
i)A F Bank statement numbered ...67 in the joint names of the husband and wife under member number #...09 for the period 1 April 2018 to 30 June 2018, for a ‘Savings Account Zero’ account ending #...99, with an opening and closing balance of one cent
ii)A F Bank statement numbered ...68 in the joint names of the husband and wife under member number #...09 for the period 1 July 2018 to 30 September 2018, for a ‘Savings Account Zero’ account ending #...99, with an opening and closing balance of one cent; and
iii)An Employer B Credit Union international telegraphic transfer of funds form dated 6 January 2014 relating to “purchase of machinery” for USD $483.60, sent by the husband to a machinery company in Country O, via the Bank of Country O, and through Western Union.
The husband relied upon the following material:
a)His Response filed 14 June 2019;
b)His Case Outline, tendered as exhibit R1;
c)The husband’s affidavit affirmed 18 September 2019 and filed 19 September 2019;
d)The husband’s Financial Statement sworn or affirmed 16 June 2018;
e)A further Amended Response filed 18 November 2019 – filed in response to an order made on 1 November 2019 at the end of the evidence, that by 4.00PM on 15 November 2019, the husband file and serve a minute of the orders sought by him by way of final property settlement orders in the proceedings;
f)Written submissions filed 20 December 2019; and
g)Further written submissions filed 28 December 2019.
The further written submissions filed by the husband on 28 December 2019 attached certain documents. Those documents are not part of the evidence in the proceedings. The references to those documents, and any information contained within those documents in the further written submissions of the husband, are disregarded. The case for the husband had been closed at the end of the husband’s oral evidence and the completion of tendering of documents on 1 November 2019. No application was made by either party to re-open the evidence.
The husband also relied upon the following documents admitted into evidence and marked as exhibits:
a)Exhibit R2, being eight pages of colour photographs taken around the exterior of the matrimonial home at H Street, Suburb J, some depicting the husband tending to plants; and
b)Exhibit R3, being F Bank statement for a credit card account in the husband’s name as member ...42, card ...22 being various statements for that account and including showing various payments made by the husband toward educational expenses for the parties’ two children.
The wife was cross-examined by the husband and the husband was cross-examined by Mr Breeze for the wife. Neither party called any other witness.
The orders sought
The wife sought the following orders as set out in the written submissions prepared on her behalf by Mr Breeze of counsel, summarised as follows:
a)That within 42 days the husband pay to the wife $682,790.45, which was asserted to be 55 per cent of the total net pool excluding superannuation and assets to be retained by the wife;
b)That simultaneously with the payment sought in order (a), the wife transfer the whole of her interest in H Street, Suburb J NSW to the husband;
c)That should the husband fail to pay the sum referred to in order (a) to the wife:
i)The parties do all things necessary to list the H Street, Suburb J property for sale by public auction;
ii)The wife be appointed trustee for sale;
iii)The reserve price for auction be $1,000,000 or such other price as the agent recommends;
iv)That following sale and payment out of proper costs, the wife receive $682,790.45 with interest under the Act; and
v)That rates then be adjusted and the balance be paid to the husband;
d)That in an alternative to orders a) to c):
i)The parties do all things necessary to sell the H Street, Suburb J property;
ii)Following sale, and after payment of proper costs, the balance be divided 55 per cent to the wife and 45 per cent to the husband;
iii)That the husband retain his interest in real property at 585 D Street, Town E Road, D Street, Town E, in the state of New South Wales (‘the D Street, Town E’) and pay to the wife $80,631.10, being 55 per cent of the net value of the D Street, Town E property;
iv)The husband transfer to the wife Company B and Company C to the value of $16,881.60 or pay that sum to the wife; and
v)The husband pay to the wife $20,155, being 55 per cent of the value of machinery and equipment located at “farm in Country M”;
e)That there be a superannuation splitting order pursuant to section 90XT(1)(a) of the Act effecting the husband’s interest in the Employer B Superannuation Plan to the benefit of the wife with a base amount of $89,420.50;
f)That except as provided otherwise in these orders the husband be the sole legal and beneficial owner as between himself and the wife of all property in his “current position or control at the date of ... orders”; and
g)That the wife be the sole legal and beneficial owner as between herself and the husband of all property “in her current position or control as at the date of ... orders”.
The husband sought the following orders as set out in both his Amended Response file 18 November 2019 and his written submissions filed 20 December 2019, summarised as follows:
a)The wife retain full ownership of her Company G shares, her Company P shares, all motor vehicles registered under her name, her travel club membership, any cash in her bank accounts, and all her jewellery and similar personal item;
b)That the husband retain full ownership of his Employer B shares, the D Street, Town E property and all equipment presently located on or attached to the D Street, Town E property, all motor vehicles registered in his name, any cash in his bank accounts, and all tools and machinery purchased by him and presently located at the H Street, Suburb J property;
c)That the H Street, Suburb J property be sold and the husband receive 78 per cent of the net proceeds of sale and the wife receive 22 per cent of the net proceeds of sale;
d)That each of the parties retain their interest in their respective superannuation entitlements;
e)That whilst both parties continue to cohabit the H Street, Suburb J property they contribute equally to all costs of occupation and ownership, maintenance and repair, upgrade or replacement;
f)That if either party opts to permanently vacate the H Street, Suburb J property the other party be given first option to buy out the interest of the vacating party;
g)That the wife reimburse the husband for 50 per cent “plus applicable interest” of all council rates, water rates, electricity bills, LP Gas bills, landline telephone and internet charges, home and contents insurance, and any expenses related to the maintenance, repair, upgrade, and replacement of any part of the dwelling, structure or any equipment, facility or landscape associated with H Street, Suburb J property paid by the husband since 18 January 2018.
The matrimonial asset pool as at the hearing
The following summarises the position of the parties in relation to the assets, liabilities, and superannuation entitlements compromising the matrimonial asset pool and each parties’ asserted value thereof as at the hearing:
Assets
No
Ownership
Description
Wife’s Value
Husband’s Value
1
Joint
H Street, Suburb J
$1,000,000
$1,000,000
2
Husband
Interest in property in Country M including machinery and real estate
$36,646.45
No interest
3
Joint
Matrimonial home and contents
$20,000
$20,000
4
Husband
Shares – Company B and Company C
$30,694
$30,694
5
Wife
Shares – Company G
$17,371.80
$17,371.80
6
Husband
D Street, Town E
$520,000
$480,000
7
Wife
F Bank Account ...08
$3,749.75
$3,749.75
8
Husband
F Bank Account ...42
$2,776
$2,776
9
Joint
F Bank Account ...09
$0
$0
10
Husband
Motor Vehicle 1
$22,000
$21,000
TOTAL
$1,653,237.90
$1,575,591.50
Liabilities
No
Ownership
Description
Wife’s Value
Husband’s Value
11
Husband
Loan secured on D Street, Town E property by mortgage
$373,398
$373,398
12
Husband
“Q Finance” – farm machinery
Nil
$20,000
13
Husband
Personal loan owed to family (relating to purchase of D Street, Town E property)
Nil
$50,000
TOTAL
$373,398
$443,398
Superannuation entitlements
No
Ownership
Description
Wife’s Value
Husband’s Value
14
Wife
Super Fund R – accumulation fund
$204,901
$204,901
15
Husband
Employer B Super – accumulation fund and defined benefit amount
$330,229
$330,229
TOTAL
$535,130
$535,130
On the husband’s asserted composition of the matrimonial asset pool and his asserted values, he proposed a settlement whereby he would receive 72.65 per cent of the net matrimonial asset pool, including superannuation, and the wife would receive 27.35 per cent of that pool.
The wife sought by her orders an overall settlement between the parties of 55 per cent to herself and 45 per cent to the husband. This division sought by her included a superannuation splitting order affecting the husband’s Employer B Super fund, so as to divide the superannuation benefits between the parties in that proportion.
The evidence
The following summary of the evidence is drawn from the parties’ affidavit evidence, their evidence during cross-examination, and from the tendered exhibits.
Where there is a conflict between the parties’ evidence, I have preferred the evidence of the wife on the basis that I find the wife to be a more reliable witness than the husband. My basis for that finding relates to the following matters in the husband’s evidence in his affidavit and during cross-examination:
a)At about the time of parties’ separation in May 2013, the husband paid two amounts to a vendor in Country O for a total cost of $16,974.52, for the purchase of a bulldozer and other equipment for use by his mother on her farm in Country M, with that sum being repaid to him over time by his mother. The husband did not refer to the transactions, the purchase, or the asserted repayments in his trial affidavit;
b)The husband conceded in cross-examination that he had accounts in his sole name in F Bank, other than the account ending in #...65 disclosed in his Financial Statement of 16 June 2018 and relied upon by him at the final hearing. He had not disclosed those further accounts in that Financial Statement;
c)The husband conceded in cross-examination that, at the time of the hearing, he held shares in his sole name in Employer B, that he had received in 1996, and that he did not include that asset at any place in his Financial Statement;
d)The husband conceded in cross-examination that in February 2018, he sold Company C shares in his sole name for $15,726 and applied those funds toward payment of the stamp duty relating to his purchase of the D Street, Town E property, but he did not refer to the disposal of property in part M of his Financial Statement sworn or affirmed in June of 2018.
The wife, for her part, asserted in her affidavit that during the parties’ cohabitation, she paid for all of the household expenses and paid for all of the household furniture.[1] However, under cross-examination, she conceded that her use of such absolutes was wrong and that the husband had also contributed financially towards the household expenses and toward purchase of the household furniture.
[1] Affidavit of the wife sworn 18 September 2019, [59].
On balance, in view of the abovementioned matters, I find that I prefer the evidence of the wife over that of the husband.
The parties were born in Country M, the wife in 1971 and the husband in 1968.
The parties met at Employer S in Country M, while the husband was working as a professional, and the wife was working as an office worker. The husband migrated to Australia in 1994 and then returned to Country M in 1994. The parties were married in 1994. The parties did not cohabit prior to their marriage. The husband returned to Sydney shortly after their wedding and in 1995 he took up employment with Employer B in Sydney.
The wife migrated to Australia in 1995, sponsored by the husband, and it was at this time that cohabitation between the parties commenced at the home of the husband’s sister in Suburb T.
Two months after the wife migrated to Australia, she obtained employment with Employer U on a salary of $26,000 per year plus overtime payments.
The husband asserts that by late 1995 he had accumulated $30,000 in savings from his employment, both in Country M prior to migration and in Australia. In cross-examination, he said that the savings were originally in V Bank and later in Employer B Staff Credit Union, though he had no bank statements or other documentation in corroboration. Given that the savings are to a date in late 1995, the husband would only have relevant bank statements if he had personally retained them from that time.
The wife says that at the time of her migration to Australia in late 1995, she had accumulated $5,000 worth of superannuation entitlements in Country M which she was able to cash and transfer to an account in Australia. The wife did not concede that the husband had $30,000 in savings, though the husband in cross-examination conceded that the wife brought $5,000 over from Country M when she came to Australia.
Once the wife had obtained her employment in Australia the parties opened a joint account with the Employer B Staff Credit Union, account number ...09, and both their salaries were paid into that account until about late 1996 or early 1997. At that time, the wife opened an account in her sole name and thereafter had her salary deposited into that account.
From the time of commencement of cohabitation in Australia the husband had a credit card, and he provided the wife with an additional card on that account. At some time in the mid-2000s the wife opened her own visa credit card account.
The parties have two children, Mr K born in 1996 and aged 23 at the date of hearing, and Ms L born in 1999 and aged 20 at the date of hearing.
Following Mr K’s birth, the wife returned to full-time work in 1997. Mr K was placed into day care whilst both the husband and the wife continued to work on a full-time basis. The wife conceded in her trial affidavit that through the period of their marriage the husband out-earned her, but not excessively. It is clear that both parties worked full-time throughout their marriage except for periods of three to four months, following the birth of each child, when the wife took maternity leave.
In late 1996 the parties jointly purchased the matrimonial home at H Street, Suburb J, for $183,000. The purchase settled in late 1996. The wife says that the parties paid a deposit of $18,300 from their joint savings and that the balance was financed by a loan from F Bank, which took a registered mortgage over that property as security. The husband says that the purchase price was funded through:
a)$13,000, of joint savings accumulated by the parties since they commenced cohabitation;
b)$30,000 of savings he says he held at the commencement of the parties’ cohabitation, when the wife came to Australia in 1995, and
c)That the balance of the purchase price and the purchase costs were borrowed.
The loan from F Bank had been fully repaid by mid 2014.
The wife says that at the time of purchase, the H Street, Suburb J property was uninhabitable and that although the purchase settled shortly after she had given birth to Mr K, she, her mother, and her niece spent some days thoroughly cleaning the home to make it fit for habitation. The husband says that the property was habitable but uninhabited at the time of settlement of the purchase.
In either 2002 or 2003, the wife purchased an investment property at Suburb W in her sole name. The Suburb W property was sold in about 2006 at a loss. The wife sold Company X shares (which were by then probably Company C shares) to pay out the balance of a loan relating to the purchase of that property. The husband says that he was a guarantor of the loan obtained by the wife for purchase of the Suburb W property and that the loan was cross-secured on the Suburb W property and the H Street, Suburb J property.
The wife asserts that in 2011 the husband purchased a Motor Vehicle 2, which he had shipped to Country M. In cross-examination the husband denied that assertion. He denied that in 2011 he owned a Motor Vehicle 2 and said that rather, in 2006 he purchased a Motor Vehicle 3 and sent it to Country M, unregistered and in a state that is unable to be registered, for use by his mother on her farm at City Y in Country M.
In mid 2013, the husband paid $16,974.52 to a company in Country O to purchase a bulldozer, and some other equipment, which he had shipped to Country M, at his expense, at a cost of about $4,000, for use by his mother on her farm at City Y. The husband asserts that the whole of the sum he expended on the purchase and shipping for the bulldozer and associated equipment was repaid to him over time by his mother. The husband did not provide any detail in evidence of when repayments were made or in what amounts or how such repayments were received by him.
The parties separated in May 2013, but they have continued to both reside in the matrimonial home at H Street, Suburb J since separation and up to and continuing from the date of hearing.
On 4 March 2016 the husband transferred $19,676.93 to City Z for the purchase of solar panels on behalf of his brother in Country M. The husband says that his brother owes him that amount. When asked in cross-examination by Mr Breeze if his brother had ever paid him back the amount the husband answered, “Not in money, in kind”. When it was put to the husband, by Mr Breeze, that he remains the owner of the solar panels, the husband replied “No”. He further gave evidence in his cross-examination, in relation to the money expended by him on the solar panels for his brother, that “I don't know where the solar panels are, he will pay one day, I’m not pressing for it.”
It is relevant to point out at this time that the husband asserts further in his evidence that a sum of $50,000 was provided to him by “family members” in relation to his purchase in March 2018 of the D Street, Town E property. The detail of that payment is set out below.
In March 2018, the husband purchased in his sole name the D Street, Town E property, at D Street, Town E New South Wales, for $520,000. He says in his evidence that he paid $120,000, by way of deposit, composed of $70,000 of his own savings accumulated post-separation, and $50,000 lent to him by “family” including his brother, and that he obtained a loan from the Commonwealth Bank of Australia Limited secured over the property for the balance of purchase price and some costs. He also deposes that he sold Company C shares, held in his sole name, at about that time for $15,726 and applied the proceeds to a payment of the stamp duty payable on the purchase.
Unfortunately, the husband did not give any evidence-in-chief in relation to the purchase price of the property or the amount borrowed by him from the Commonwealth Bank. He asserts that “Apart from that mortgage, I applied and obtained another $20,000 agricultural loan through Q Finance in July 2018 which is also secured against the D Street, Town E property.” As the purchase of the D Street, Town E property was settled in March 2018, the $20,000 borrowed by the husband from Q Finance was the money he applied to a purchase of machinery for use on the property, as detailed hereunder.
It is the wife’s evidence that the husband purchased the property for $520,000, and she annexes to her affidavit a copy of the relevant settlement adjustment sheet verifying that purchase price. She deposes that the husband borrowed $390,000 from the Commonwealth Bank to apply toward the purchase, verified by a copy of the relevant bank statements for the husband’s loan account as an annexure to her affidavit.
If the property costs $520,000 to buy, the husband applied $120,000 toward the purchase and he borrowed $390,000 toward the purchase, he was $10,000 short on purchase price. This lacuna is not filled in in either parties’ evidence.
In evidence is a copy of the husband’s F Bank account statements for 31 March 2016 indicating that in his account ending #...65 he had a credit balance of $60,966.93. When he completed his Financial Statement relied upon by him for the hearing, on 16 June 2018, he indicated that that account had a credit balance of $2,127. When he was cross-examined about what had happened to the funds, he said they had formed part of the money he paid toward the purchase of the D Street, Town E property. I accept that evidence from the husband.
The husband borrowed $20,000 from Q Finance in July 2018, the loan being secured against the D Street, Town E property. He applied those funds toward purchase of a tractor and a portable water pump, both for use on the D Street, Town E property.
On 22 June 2018, the husband expended $2,000 and $2,249.60 on purchase of equipment from “Company AA” at Town BB, both expenditures being on his F Bank credit card ending #...22. In cross-examination, he said that the expenditure was for purchase of a scarifier and a rotary tiller to be used in conjunction with the tractor on the D Street, Town E property.
In cross-examination, the husband said that the only current occupant of the D Street, Town E property is his brother, who occupies the property without paying any rent to the husband. In his affidavit, he said that once his mother has negotiated the sale of her Country M property at City Y, she will migrate permanently to Australia and reside at the D Street, Town E property.
The husband did not disclose the tractor or any of the other farm equipment purchased by him and placed on the D Street, Town E property in his trial affidavit. He also did not disclose that the $20,000 borrowed by him, from Q Finance, in July 2018 was expended for that purpose. That loan, and the equipment on the D Street, Town E property, was not disclosed in his Financial Statement relied upon by him in the hearing because that document was sworn or affirmed by or on 16 June 2018, which was before the borrowing and purchase of equipment.
The parties have both continued to reside in the former matrimonial home at H Street, Suburb J since their separation in about May 2013. On the available evidence, I find that the husband has been responsible, as between the husband and wife, for payment of the outgoings that relate to ownership and occupation of the property. Those outgoings are the council and water rates, home and contents insurance, and the utility costs of gas and electricity.
The evidence upon which that finding is based is found in the Financial Statements of the parties relied upon at trial and the wife’s evidence in cross-examination. The Financial Statement of the wife sworn or affirmed 5 April 2018 indicates that she makes no payments towards any rates, home or contents insurance, or toward electricity or gas costs.
The husband’s Financial Statement sworn or affirmed 16 June 2018, on the other hand, indicates that he pays moneys toward rates, home and contents insurance premiums and gas and electricity costs. Whilst I am mindful that the husband is co-owner with the wife of the H Street, Suburb J property and the sole owner of the D Street, Town E property, and the property toward which the payments stated in his Financial Statement are made are not differentiated, on the basis that he makes payments and the wife makes no payments I make the above finding.
The parties separated in about May 2013. The loan from F Bank secured on the H Street, Suburb J property was fully repaid by June 2014. In her trial affidavit, the wife says that during the marriage, the husband contributed his earnings toward payment of the home loan and she contributed her earnings toward the financial support of the family, including payment of the children’s expenses and the general household expenditure.[2] The wife does not give any evidence in relation to the contributions to the payment of the loan account between separation in May 2013 and the account being paid off by June 2014.
[2] Affidavit of the wife sworn 18 September 2019, [64].
Most of the material offered by the husband in relation to the parties’ relevant contributions to the payment of outgoings and improvements to the H Street, Suburb J property, both before and after separation, was excluded as inadmissible on objection. The husband says in his trial affidavit that from the inception of the loan account obtained by the parties for purchase of the H Street, Suburb J property until early 2010, his income was applied toward repayments of the loan account. Thereafter, from 2010 until late 2012 the wife contributed to those repayments. In late 2012 the wife ceased contributing toward those repayments and that subsequently he was the sole contributor to the repayments from his earned income up until June 2014 when it was fully paid off.
I have carefully considered the evidence of each of the parties contained in their trial affidavits in relation to their respective financial contributions during their co-habitation to the day-to-day living expenses of the family, including to accommodation expenses by contribution to payment of the loan account secured on the property and purchase. I find that each of the parties contributed their earned income toward the acquisition, conservation, and improvement of the property of the parties past and present, and toward the welfare of the family unit in relation to living expenses, except for the husband’s purchase of plant and equipment shipped by him to Country M for the benefit of members of his extended family.
Though the wife makes a point in her evidence of being the one who paid the cost of childcare for the children of the marriage and purchase of the family’s consumables the husband was applying his income to a payment of the loan account secured on the H Street, Suburb J property and outgoings relating to ownership and occupation of the home.
The wife asserts in her trial affidavit that she paid for “the purchase of all household furniture and the payment of all household expenses including food for the children and Mr Malik.”[3] As already indicated, during cross-examination of the wife I asked her some questions, the answers to which elicited her evidence that throughout the parties’ cohabitation, and continuing up to the time of hearing, the husband paid “all the bills” meaning the utilities such as electricity, gas, water rates, and council rates.
[3] Affidavit of the wife sworn 18 September 2019, [59].
The wife explained that her reference to “all household expenses” in her affidavit referred to the purchase by her of kitchen utensils, pots and pans, tablecloths, cushions, curtains, towels, things that the children wanted, clothes and so forth, in relation to which she asserted she had been the sole purchase price provider from her income without contribution from the husband.[4]
[4] Affidavit of the wife sworn 18 September 2019, [59].
She conceded that, contrary to the impression given in her affidavit, the husband had also contributed to the cost of food for the whole of the family throughout the whole period of their cohabitation and continuing up to the time of trial.[5] She further conceded that despite her assertion in her trial affidavit that she paid for “the purchase of all household furniture” both parties had contributed to the purchase of new furniture, that she “mostly paid”, but that the husband “paid some”.[6] The ratios of contribution in that respect cannot be ascertained from any of the evidence.
[5] Affidavit of the wife sworn 18 September 2019, [59].
[6] Affidavit of the wife sworn 18 September 2019, [59].
There was dispute between the parties in relation to their respective contributions to the day-to-day care of the children. The wife originally approached that issue in terms of absolutes – that she did everything – in contrast to the husband’s evidence in his trial affidavit that whilst he does not deny that the wife performed some of the interior housework during the marriage, he performed the majority of the interior housework simply because the wife was not at home due to her spending long hours at her employment.[7]
[7] Affidavit of the husband affirmed 18 September 2019, [37].
On the state of the parties’ evidence both in their affidavits and in cross-examination, I find that the parties contributed equally toward the day-to-day care of the children during their minority. I note that when the parties separated in May 2013, Mr K was 16 and a half years of age and Ms L was 14 years of age and continued to reside in the H Street, Suburb J property with the parties from separation up to trial.
In 2007, the husband was diagnosed with type 2 diabetes in relation to which he takes prescription medication and has regular medical appointments with medical specialists. Each month his regime of medications costs around $300.
The husband gives some evidence in his trial affidavit in relation to some effects of his medical condition on his employment, but I am not able to find on the basis of his evidence, in the absence of expert evidence, that his health will render him unable to engage in appropriate gainful employment at any time before a normal retirement age.[8]
[8] Affidavit of the husband affirmed 18 September 2019, [44].
In the wife’s affidavit she gives some evidence in relation to asserted behaviour by the husband to her since separation.[9] I find that that evidence has no effect upon:
a)My consideration of whether or not it is just and equitable to proceed with the making of the property settlement orders under section 79,
b)The contributions of the parties; or
c)Any adjustment that may be appropriate between the parties under section 79(4)(e)’s reference to section 75(2) of the Act.
[9] Affidavit of the wife sworn 18 September 2019, [136]-[139].
The law
The law relating to the alteration of property interests between two parties to a marriage is governed by section 79 of the Act.[10] Relevantly in this case, section 79(1) vests the Court with power to alter the interests of the parties in property,[11] and the power to make orders providing for the settlement or transfer of property, as determined by the Court.[12]
[10] Family Law Act 1975 (Cth) s 79.
[11] Family Law Act 1975 (Cth) s 79(1)(a).
[12] Family Law Act 1975 (Cth) s 79(1)(d).
However, the Court must not make an order under section 79 unless the Court is satisfied that, in all of the circumstances, it is just and equitable to do so.[13] To give proper consideration to the legislative process required by section 79, it is necessary to consider the High Court decision in Stanford & Stanford.[14]
[13] Family Law Act 1975 (Cth) s 79(2).
[14] Stanford & Stanford (2012) 247 CLR 108.
In that decision, the High Court held that section 79(2) requires that at the outset of the Court’s decision-making process the Court must consider whether or not, in all the circumstances, it is just and equitable to make an order under section 79(1) altering the interests of the parties to the marriage in property.
Is it just and equitable to make an order under section 79?
In considering the proposition posed by this first step, a Court should start by identifying items under the following categories:
a)The existing legal and equitable interests of the parties in property, according to ordinary common law and equitable principles;
b)The existing liabilities of the parties, according to ordinary common law and equitable principles and under legislation; and
c)The rights of the parties, if any, according to ordinary common law and equitable principles and under legislation, in relation to any asserted resources of the parties that may, if it is considered just and equitable to proceed with the property settlement, be taken into account in the Court’s consideration of the matters referred to in section 75(2) of the Act, to which section 79(4)(e) directs the Court’s attention.[15]
[15] Stanford & Stanford (2012) 247 CLR 108; see especially [37].
I further note the comments of the High Court in Stanford at paragraph 42 which I reproduce in full here:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the Court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).[16].
[16] Stanford & Stanford (2012) 247 CLR 108, [42] (emphasis added).
The parties’ marriage broke down irretrievably in about May 2013 and they were divorced on 17 April 2018, the divorce becoming final on 18 May 2018.
The parties are the joint owners of the H Street, Suburb J property and they continue to reside under the same roof in the H Street, Suburb J property pending a final property settlement determination.
Both parties are seeking that the Court make property settlement orders under section 79 of the Act.
I find that, based on the findings I have made above, it is just and equitable to make an order under section 79 of the Act altering the interests of the parties in the property which forms the net matrimonial asset pool available for division between the parties.
What orders under section 79 are appropriate to be made?
Having determined that it is indeed just and equitable to make an order under section 79, the Court is then tasked with the job of considering what orders are appropriate to be made. In doing so, I will follow the four-step process set out in Hickey & Hickey.[17]
[17] Hickey & Hickey & Attorney-General for the Commonwealth of Australia (‘Hickey’) [2003] FamCA 395, [39].
In Hickey, the Full Court of the Family Court set out a process of four inter-related steps that must be taken by a Court when determining a property application:
a)First, “the Court should make findings as to the identity and value of the property, liabilities, and financial resources of the parties at the date of the hearing”;[18]
b)Second, “the Court should identify and assess the contributions of the parties within the meaning of section 79(4)(a), (b), and (c), and determine the contribution-based entitlements of the parties expressed as a percentage of the net value of the property of the parties”; [19]
c)Third, “the Court should identify and assess the relevant matters … (“the other factors”) including…the matters referred to in section 75(2) so far as they are relevant…”;[20]
d)Fourth, “the Court should … resolve what order is just and equitable in all the circumstances of the case”.[21]
Preliminary Issues
[18] Hickey [2003] FamCA 395, [39].
[19] Hickey [2003] FamCA 395, [39]. See also Family Law Act 1975 (Cth) s 79(4)(a)-(c):
[20] Hickey [2003] FamCA 395, [39].
[21] Hickey [2003] FamCA 395, [39].
No property excluded
The husband submitted in his written submissions that various items of property held by each of the parties should be “excluded from consideration”.[22] In this regard he referred to his Employer B shares and the wife’s Company G shares, the D Street, Town E property, the wife’s savings, and his Motor Vehicle 1.
[22] Written submissions of the husband filed 11 December 2019, [11].
In relation to the liabilities, he submitted that the Court should also exclude from consideration of assets and liabilities his $20,000 debt to Q Finance and the items purchased with that loan.
Firstly, in relation to the tractor and other machinery and equipment purchased by the husband with the $20,000 loan from Q Finance, I have no evidence as to the make or condition or even purchase price of each item of such machinery, including the tractor, and I find that I am not able to include same in the asset pool.
Secondly, in relation to the husband’s submission in relation to exclusion of assets and liabilities generally, I refer to the decision of the Full Court of the Family Court of Australia in Holland & Holland[23] at [34]:
...it is important to emphasise that the categorisation of property as ‘an inheritance’ or as ‘after-acquired’ property often leads to an erroneous argument that unless contributions to that property can be established, the property should be ‘excluded from consideration’. As we have said, that argument is erroneous by reason of ignoring the fundamental premise that section 79 is directed to all of the existing legal and equitable interests in property of the parties or either of them without exclusion of any of those interests.[24]
[23] Holland & Holland [2017] FamCAFC 166.
[24] Holland & Holland [2017] FamCAFC 166, [34].
At [16] to [43] inclusive of the judgment in Holland, their Honours make it clear that no property is excluded from consideration, though the Court has discretion as to how particular property may be dealt with after proper consideration.
Accordingly, I find that none of the assets or liabilities established as forming part or affecting the matrimonial asset pool are ‘excluded’.
Interest in property in Country M
The wife asserts that the husband has an interest in machinery purchased by him and shipped to Country M to a value of $36,646.45. The husband asserts that whilst he did ship a Motor Vehicle 3, bulldozer and other machinery to Country M during the parties’ cohabitation, and solar panels in March 2016, he does not own any of that property. He asserts further that he has been repaid, or will be repaid in time, the money spent by him on the purchases.
There is no evidence as to the value of the Motor Vehicle 3, the bulldozer any other machinery and solar panels shipped by the husband to Country M. There is no evidence as to whether those items still exist or not. I cannot find on all of the evidence that the husband is the legal or beneficial owner of any of those items or as to whether or not such items still exist.
Accordingly I do not include any of that said property in the matrimonial asset pool. On the same basis I find that I do not include any asserted debt owed by the husband’s brother to the husband in relation to the solar panels in the matrimonial asset pool.
There is no evidence whatsoever that the husband has any interest in any real estate in Country M.
Value of the D Street, Town E property
There is no expert evidence in relation to the value of the D Street, Town E property. The wife asserts a value for the property of $520,000. The husband asserts a value of $480,000.
The wife’s assertion of value is based on the purchase price for the property in March 2018.
The husband’s assertion as to value is not supported by any evidence. The husband makes some assertions in his written submissions, but no attention can be paid to those assertions as they are not evidence.[25]
[25] Written submissions of the husband filed 11 December 2019, [11(b)].
It is not appropriate for a Court in a case of disputed valuation to resolve the issue on a simple ‘split the difference’ basis. The finding should be based on available evidence (if any) and law.
The only evidence the Court has going to a value of the D Street, Town E property is in relation to the purchase price paid by the husband. That evidence is not found in the husband’s evidence, but found in the wife’s evidence by way of her annexure ‘O’, being the settlement adjustment sheet from the settlement of the purchase on 23 March 2018, showing the purchase price at $520,000.
I find for the purposes of these proceedings that the value of the D Street, Town E property is $520,000.
The value of the husband’s Motor Vehicle 1
At the hearing, the wife asserted in her counsel’s submissions that the husband’s Motor Vehicle 1 is valued at $22,000. That submission was based on the assertion found in the husband’s Financial Statement, sworn or affirmed 16 June 2018 and relied upon by him in the trial, at [40] therein that the said vehicle is valued at $22,000.
The husband asserted in hearing that the vehicle was valued at $21,000, though he did not present any additional evidence as to value. Despite the wife relying on the sworn evidence of the husband as to value being $22,000, that asserted value was in June 2018, one year and four months before the first day of the hearing on 18 October 2019.
I find that it is reasonable that there would have been a further depreciation in the value of the vehicle over the intervening period. Accordingly, I find that the appropriate value for the Motor Vehicle 1 for the purpose of these proceedings is $21,000.
“Q finance” – the husband’s debt to Q Finance
The husband asserts that in July 2018, following his purchase of the D Street, Town E property, he obtained finance from Q Finance in the sum of $20,000 and applied same to a purchase of a tractor and other equipment for use on the D Street, Town E property. The husband does not present any evidence as to the value of the tractor or other equipment. The wife does not present any evidence as to the value of the tractor or other equipment.
The wife submits that the debt should be “excluded as a debt to be considered” on the basis that it is a post-separation debt for which the husband is solely liable, that no loan agreements or other documentation supporting the claim were disclosed or put into evidence by the husband, that the reference to the debt by the husband is “in his Case Outline (exhibit R1)” and that such reference is “arbitrary and lacking in specificity.”
The husband refers to the debt in his trial affidavit:
I applied and obtained another $20,000 agricultural loan through Q Finance in July 2018 which is also secured against the D Street, Town E property.[26]
[26] Affidavit of the husband affirmed 18 September 2020, [30].
He does not give evidence in his affidavit as to how the moneys were applied. In cross-examination he gave evidence that the borrowing was applied to the purchase of a tractor and other equipment for the D Street, Town E property including a “carry all” and a “ride-on mower”.
I have no evidence as to the value of the tractor, the carry all, the ride-on mower or anything else bought with the said finance. I find that it is not just and equitable to include the husband’s debt to Q Finance in the sum of $20,000 in the absence of his evidence as to the current balance owing, given that the borrowing was made in July 2018, and without being able to include a value for the machinery purchased with those moneys.
Accordingly, I will not include that liability in ascertaining the net matrimonial asset pool available for distribution between the parties if I find that it is just and equitable to proceed with a property settlement order. That is a different circumstance to the course urged in the wife’s submissions that the debt “should be excluded from the consideration of assets and liabilities of the parties”.
In accordance with the judgment of the Full Court in Holland referred to above, I have considered that liability and have found that it is not just and equitable to take it into account in ascertaining the net matrimonial asset pool.
Personal loan owed by the husband to “family members” in relation to the purchase of the D Street, Town E property
The husband asserts that when buying the D Street, Town E property, he paid $120,000 toward the purchase being composed of “about $70,000 of my own money being moneys I had saved over a number of years” and “approximately $50,000 ... loaned to me by my immediate family.” The father provides no other evidence in relation to that loan.
In cross-examination, the husband twice confirmed his assertion that he had borrowed $50,000 toward the purchase from family, but he was not cross-examined as to detail – an understandable forensic decision on the part of counsel for the wife, given the husband’s failure to give any evidence of the detail of the asserted borrowing.
The husband asserted that he borrowed from “immediate family”. He does not present in evidence any bank records in relation to the money, despite his evidence in his trial affidavit that:
This $50,000 loan comprised of internal Australian electronic bank transfers of around $20,000. The rest of $30,000 was money brought over from Country M in cash denominations in either Country M or Australian dollars by myself or my family members travelling between the two countries within the two years immediately preceding the purchase of the D Street, Town E property.[27]
[27] Affidavit of the husband affirmed 18 September 2020, [30].
The husband does not present documentation in relation to the “internal Australian electronic bank transfers” or in relation to conversion of Country M dollars to Australian dollars for the purpose of the purchase.
Mr Breeze submits on behalf of the wife that the asserted debt of $50,000 “should be excluded”. Mr Breeze refers the Court to the decision of Bryant CJ in C & B[28] at [77] where her Honour was dealing with the husband’s assertion that he had received a loan from his mother that was asserted by the wife to be a gift and therefore a contribution on behalf of the husband. Her Honour found that the particular advance did not have the characteristics of a loan and, in particular, that there was no interest payable, no prepayment required, and no time for capital repayment.
[28] C & B [2005] FamCA 94.
The loan being considered by her Honour in that case is somewhat different to the loan under current consideration, though the husband refers to a loan from “immediate family”, which could include his mother, he is not specific on that aspect. The husband provides no written loan agreements, no terms of the loan (even oral terms), no evidence of repayment or proposed repayments and in his evidence in cross-examination, he raised the inference that at least part of the loan may have come from his brother who, in March 2018, is asserted by the husband to have owed the husband $19,676.93 for the solar panels.
Due to the lack of evidence provided by the husband in relation to the asserted loan, I find that it is appropriate for me not to treat the said sum of $50,000 as a liability owed by the husband to unspecified members of his “immediate family”. I will instead take that sum as having been provided by or on behalf of the husband when considering the contributions of the parties, on the basis that, on the evidence, it seems plain that that sum must have made its way into the purchase price of the D Street, Town E property, was not provided by the wife, was not borrowed from the Commonwealth Bank, and so must have been sourced in some manner by the husband.
The asset pool
I find that the asset pool consists of the following:
Assets
No
Ownership
The Item
Value
1
Joint
H Street, Suburb J
$1,000,000
2
Joint
Contents of matrimonial home
$20,000
3
Husband
Employer B shares and Company C shares
$30,694
4
Wife
Company G shares
$17,371
5
Husband
D Street, Town E
$520,000
6
Wife
F Bank account #...08
$3,749
7
Husband
F Bank account #...42
$2,776
8
Husband
Motor Vehicle 1
$21,000
TOTAL
$1,615,590
Liabilities
No
Ownership
The Item
Value
9
Husband
Loan account secured by mortgage on D Street, Town E
$373,398
TOTAL
$373,398
Superannuation
No
Ownership
The Item
Value
10
Wife
Super Fund R – accumulation fund
$204,901
11
Husband
Employer B Super – accumulation and defined benefit
$330,229
TOTAL
$535,130
Accordingly, the net matrimonial assets, without superannuation included, is valued at $1,242,192.
I find in this matter that it is appropriate to decide this matter by use of a global approach to the assets and liabilities and by a two pool approach, one pool being the net matrimonial assets without superannuation and the other pool being the parties’ superannuation entitlements.
Findings on contributions
I find that the husband made an initial contribution at the commencement of the parties’ actual cohabitation of a sum of about $30,000, by way of savings. The wife made an initial contribution at the commencement of the parties’ cohabitation in the sum of about $5,000, being her cashed Country M superannuation entitlements brought by her to Australia.
Both of the parties worked on a full-time basis throughout the cohabitation, except for two periods of time of about four or five months each when the wife took maternity leave for the birth of Mr K and Ms L. It is not possible to do any comparison of the parties’ incomes on a year by year basis, that evidence not being presented to the Court, and in any case property settlement is not a mathematical exercise nor an exercise in financial accounting through the parties’ cohabitation period.
In his trial affidavit, the husband says “Ms Gowda and I have been finishing of [sic] most financial years with approximately the same net pay.”[29] The wife’s evidence indicates that though the husband may have out-earned her through the period of cohabitation their annual incomes were not greatly different.
[29] Affidavit of the husband affirmed 18 September 2020, [28].
Despite some assertions in the parties’ trial affidavits, it became apparent in the course of their cross-examinations that the parties equally contributed toward the welfare of the family unit, in relation to their roles as homemaker and parent, and by application of their incomes toward the family’s living expenses. At the time of separation, Mr K was 16 and a half years of age and Ms L was 14 years of age. Both children and both parents have continued to reside in the H Street, Suburb J property up to the time of hearing. On the evidence, both parents have continued to make contributions to the care of the children including when the children reached their majority and beyond.
The wife’s purchase of the Suburb W property occurred some 10 years before the parties separated, and the husband was involved by way of being guarantor of the loan by way of additional security for the loan being given over the H Street, Suburb J property. The property was sold at a loss and that loss led to the loss also of the wife’s then held Company X (or more likely Company C) shares. I deal with the Suburb W property venture on the basis that during cohabitation the parties ‘each take the good with the bad’ in relation to successful or unsuccessful financial ventures in which they were both participants, or of which they both had knowledge.
The D Street, Town E property was purchased by the husband some five years after the parties separated and it is asserted by the husband, and conceded by the wife, that the wife made no financial contribution to that property. On the evidence, it must be that a sum of at least $120,000, as asserted by the husband, and, mathematically, more like $130,000 must have been contributed over and above the moneys obtained by the husband on a loan account with the Commonwealth Bank of Australia.
I have dealt with that component of the husband’s direct contribution to the purchase price, that he asserts was by way of loans from “immediate family”, and I have found that it is not appropriate to include that asserted composite “loan” in the calculation of the matrimonial asset pool available for distribution between the parties. However, the moneys applied by the husband, from whatever source, toward the purchase of the D Street, Town E property, over and above the moneys borrowed by him on the loan account with CBA, are by way of a contribution by the husband.
Overall, and taking a holistic view of the whole of the contributions of the parties from the date of their marriage, the date of their commencement of cohabitation (which post-dated their date of marriage), their separation in May 2013, their continuing to reside under the same roof up to the time of the hearing, and all of the evidence in relation to their contributions of all types from late 1994 to the date of hearing, I find that the contributions favour the husband as to 55 per cent by the husband and 45 per cent by the wife.
I find that none of the orders proposed by the parties would have any effect upon the earning capacity of either of the parties.
Should there be any adjustment under section 79(4)(e) of the Act?
The wife submits that there is no basis for any adjustment between the parties under any of the considerations set out in section 75(2) of the Act.
At the time of the hearing, the wife was 48 years of age and the husband 51 years of age.[30] They both have some time to go in their working lives before they reach a usual retirement age.
[30] Family Law Act 1975 (Cth) s 75(2)(a).
The wife enjoys good health. The husband presented evidence in relation to his health, to the effect that he was diagnosed in 2007 with diabetes type 2, that same causes him some health difficulties, and the management of same requires him to use prescription and other medications. It may be that some of the husband’s health difficulties caused by his type 2 diabetes may eventually have an effect on the work that he can do. In particular, it may impact whether or not he can continue to drive heavy vehicles, but on the admissible evidence received in the hearing, I am not able to find that such an impact will, on the balance of probabilities, occur short of a usual retirement age.
Accordingly, both of the parties are physically and mentally capable of engaging in appropriate gainful employment.[31] The parties’ current incomes and their commitments necessary to enable them to support themselves are as set out in their Financial Statements relied upon at hearing, albeit in each case the Financial Statement was in excess of 12 months old at the time of hearing.
[31] Family Law Act 1975 (Cth) s 75(2)(b).
Neither party has re-partnered.[32]
[32] Family Law Act 1975 (Cth) s 75(2)(d), (m).
Neither party is currently eligible to receive a pension, allowance or benefit under the law of the Commonwealth, a State or Territory, of another country, or from any superannuation fund or scheme.[33]
[33] Family Law Act 1975 (Cth) s 75(2)(f).
Each of the parties have contributed to the income earning capacity, property and financial resources of the other party.[34] Due to the wife continuing to work on a full-time basis throughout the parties’ cohabitation, the duration of the marriage has not adversely affected the earning capacity of either of the parties.
[34] Family Law Act 1975 (Cth) s 75(2)(j).
Overall, I find that it is not appropriate to make any adjustment between the parties for any of considerations referred to in section 75(2) of the Act.
Conclusion
I find that it is appropriate to make orders for property settlement between the parties on the basis that the net matrimonial assets, in what I have found to be the matrimonial asset pool available for distribution between the parties, be divided as to 55 per cent thereof to the husband and as to 45 per cent thereof to the wife. In that regard, I note that each of the parties proposes orders that contemplate the sale of the H Street, Suburb J property and I intend to make property settlement orders that provide for a sale of that property, and a division of the net proceeds of sale between the parties so as to achieve a division overall of 55 per cent to the husband and 45 per cent to the wife, not including superannuation entitlements, taking into account the property which each will retain to the exclusion of the other.
In relation to the parties’ superannuation entitlements, I find that the considerations that led me to find an overall contribution entitlement of 55 per cent to the husband and 45 per cent to the wife, in relation to the available assets, do not apply in the same way to their superannuation entitlements. This is because the whole of those entitlements, on the evidence available from the hearing, have been accrued during the parties’ cohabitation and in the period post their separation and up to the hearing. Each of the parties is below the age at which they can access their superannuation entitlements and I find that an appropriate division of the parties’ superannuation entitlements is on an equal basis between them. That finding necessitates a superannuation splitting order from the husband’s Employer B Super account to the wife’s Super Fund R, with the base amount of $62,664, so that each party retains one half of the total superannuation entitlements of the parties.
Accordingly, I make the orders as set out at the start of these reasons.
I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of Judge Morley
Associate:
Date: 22 September 2020
(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 …
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party …;
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage … including any contribution made in the capacity of homemaker or parent; …
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Remedies
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Jurisdiction
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Statutory Construction
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Procedural Fairness
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