Hadleigh & Hadleigh (No 2)
[2024] FedCFamC1F 799
•26 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hadleigh & Hadleigh (No 2) [2024] FedCFamC1F 799
File number(s): MLC 6798 of 2022 Judgment of: WILLIAMS J Date of judgment: 26 November 2024 Catchwords: FAMILY LAW – PROPERTY – Where the wife seeks orders adjusting the parties respective property interests – Relationship of approximately 16 months – No children of the relationship – Where the husband had greater assets at the commencement of cohabitation and made greater contributions – Less assets at the end of the relationship than existed at the start – Where both parties have had the benefit of a part property distribution – No adjustment to either party for future needs – Where the remaining assets in the pool will be paid to the husband Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 75, 79, 102NA, 106A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.26
Cases cited: Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Chancellor & McCov (2016) FLC 93-752; [2016] FamCAFC 256
In the Marriage of Hickey (2003) FLC 93-143; [2003] FamCA 395
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Division 1 First Instance Number of paragraphs: 124 Date of hearing: 11-12 June, 29 August, and 11 September 2024 Place: Melbourne Counsel for the Applicant (11-12 June 2024): Ms Clarkin and Mr Brear Solicitor for the Applicant (8 February 2024 – 22 August 2024): Creative Family Law Solutions The Applicant (22 August 2024 – 26 November 2024): Litigant in person Counsel for the Respondent (11-12 June 2024): Mr Thompson Solicitor for the Respondent (30 June 2022 – 26 August 2024): KCL Law The Respondent (26 August 2024 – 26 November 2024: Litigant in person ORDERS
MLC 6798 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HADLEIGH
Applicant
AND: MR HADLEIGH
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
26 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The husband and wife do all acts and things to pay to the husband or his nominee the funds held in the trust account of KCL Law, being the remaining proceeds of sale of the property at B Street, Suburb C, Queensland (“the Suburb C property”), estimated at around $31,876.42.
2.The husband and the wife, at the husband’s cost and expense in relation to the preparation of the transfer documents, sign all such documents and do all things necessary to transfer to the Wife the shareholdings in the companies, D Pty Ltd and E Pty Ltd. As and from the date of the transfer, the Wife indemnify the Husband in relation to any and all unpaid liabilities of whatsoever nature and kind in relation to the companies being retained by her.
3.The husband retain, for his sole use and benefit and to the exclusion of the Wife, the following:
(a)F Pty Ltd.
(b)G Pty Ltd.
(c)Hadleigh Family Trust.
(d)Hadleigh Holding Pty Ltd.
(e)H Group Pty Ltd.
(f)H1 Pty Ltd.
(g)H2 Pty Ltd.
(h)His legal and equitable interest in J Street, Suburb K, Victoria.
(i)Any money standing in any bank accounts in his name.
(j)Any furniture and chattels in his possession and/or control.
(k)Any shares and/or investments in his sole name.
(l)His part property payment of $14,000, and $150,000.
(m)His superannuation interests.
4.In relation to any property being retained by the husband, he shall indemnify the wife in relation to all unpaid liabilities in relation to the same.
5.The wife shall retain, for her sole use and benefit and to the exclusion of the Husband, the following:
(a)D Pty Ltd.
(b)E Pty Ltd.
(c)Hadleigh Family Group Holdings Pty Ltd.
(d)Any other business that she has incorporated or has an interest in and acquired by her post 30 March 2022.
(e)Any furniture and chattels in her possession.
(f)Any shares in her name.
(g)The joint L Finance portfolio investment, which the Husband is to sign any documents to transfer his interest to the Wife, at her expense, if any.
(h)The part property settlement sums she has received of approximately $145,710.44, plus Motor Vehicle 1.
(i)Her superannuation interests.
6.The wife forthwith comply with Order 2 of the orders made 15 February 2024 requiring her to return the husband’s personal property.
7.The wife be restrained by herself, servants, and agents from in any way contacting any clients, contractors, employees and/or associates of the companies being retained by the husband and referred to in paragraph 3 herein.
8.Pursuant to s 106A of the Family Law Act 1975, if either party fails to execute a document, deed or instrument in the name of the person to whom the direction was given and/or do all such acts and things necessary to give validity and/or operation to the document, deed or instrument to give effect to these Orders within fourteen (14) days of the request to do so, then a Deputy Registrar or a Judicial Registrar of the Federal Circuit and Family Court of Australia is appointed to so sign that document, deed or instrument in their stead. If this paragraph is made operational, then the defaulting party shall pay the other party’s costs and expenses of and incidental for preparation of the document, deed or instrument for its execution calculated by the solicitors for the non-defaulting party and for the proposes of this Order an affidavit filed on the Court Portal with a requesting letter addressed to the Court settling out the defaulting parties failure to comply with the Orders shall be sufficient evidence of neglect or default.
9.Unless otherwise specified in these Orders, and save for the purposes of enforcing any monies due under these or any subsequent Orders:
(a)Each party be solely entitled, to the exclusion of the other, to all other property (including choses in action) in the possession of that party as at the date of these Orders, save for the items the Wife is to provide to the Husband as per paragraph 6 of these Orders and that the Husband shall transfer to the Wife, at the Wife’s cost and expense, the ownership and registration of the parties’ dog.
(b)Each party forego any claims that they may have to any superannuation benefits belonging to or earned by the other party.
(c)Any joint accounts to be closed and the proceeds, if any, shall be divided equally between the parties.
(d)Insurance policies remain the sole property of the owner named thereon.
(e)Each party shall retain any benefits from their respective employer, including long service leave, annual leave and any other emolument.
(f)Each party be solely liable for, and indemnify the other against, any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
(g)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
10.The Initiating Application (Family Law) of the wife filed on 24 June 2022, the Response to Initiating Application (Family Law) of the husband filed on 20 July 2022, and the Further Amended Response to Initiating Application (Family Law) of the Husband filed on 1 February 2024 be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 the pseudonym Hadleigh & Hadleigh has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Williams J
INTRODUCTION
By Amended Initiating Application filed 6 June 2024, the applicant wife seeks a property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). The parties’ relationship in its entirety lasted approximately 16 months, there were no children of the relationship, and the husband entered the relationship with significantly more assets than the wife.
For the reasons that follow, I have determined the minimal remaining asset pool as at the date of the trial should be paid to the husband.
BACKGROUND AND RELEVANT PROCEDURAL HISTORY
The wife is aged 38 years, and the husband is aged 41 years. They both own their own businesses and are entrepreneurs.
The parties first met in person in November 2020, and commenced a romantic relationship shortly thereafter. They commenced cohabitation in December 2020 and married in 2021.
In late 2021, the parties purchased the matrimonial home at B Street, Suburb C in Queensland (“the Suburb C property”).
The parties separated on 30 March 2022, and the husband moved back to Melbourne while the wife continued to reside at the Suburb C property.
Both parties assert that throughout the relationship, they were subjected to family violence by the other. In early 2022, Queensland Police applied for a Temporary Protection Order naming the husband as the protected person and the wife as the respondent, which was granted by the Court shortly after. In mid-2022, reciprocal intervention orders for a period of five years were obtained by both parties.
The wife commenced these proceedings on 23 June 2022 by way of Initiating Application.
The trial commenced before me on 11 June 2024 and finalised on 11 September 2024.
PRELIMINARY MATTERS
Both parties were represented when preparing their trial material and proposed orders, and for two days of the trial. After two hearing days, the trial was adjourned for a further day, which was listed approximately two weeks later.
Prior to the adjourned date, the wife’s counsel foreshadowed she intended to cross-examine the business valuer, Ms N. Orders were also made enabling the wife to ask questions of the valuer, pursuant to r 7.26(2) and (3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) on 12 June 2024. During the adjournment, both parties dispensed with their lawyers and were self-represented. When the matter came before me on 29 August 2024, I again adjourned the proceedings to allow both parties the opportunity to avail themselves of legal representation, however neither did so.
Cross-examination of the husband by the wife’s counsel had not been concluded prior to the adjournment, and upon resumption of the trial, the wife was not permitted to cross-examine the husband because of the application of s 102NA of the Act.
Despite the wife’s former counsel previously seeking to cross-examine the valuer of the husband’s business, upon resumption of the trial on 11 September 2024 the wife did not seek to do so, and apparently her lawyers did not submit questions to the valuer, or if they did, a response of the valuer was not put into evidence.
Accordingly, on the adjourned date, both parties were advised about remaining procedural issues and both made final submissions. The husband relied upon an aide memoire which his lawyers prepared, prior to ceasing to act on his behalf. The wife appeared electronically as she had previously requested.
THE PROPERTY PROPOSALS OF THE PARTIES
The wife’s proposal
The orders the wife seeks are set out in her Amended Application for Final Orders filed 6 June 2024. She sought an equal division of the proceeds of sale of the Suburb C property and a further payment to her of $150,000, with her retaining her personal assets, the L Finance portfolio and her superannuation. She proposed the husband also retain his business entities and indemnify her for any consequential liabilities, retain his Suburb K property, his personal assets, and superannuation. A copy of these orders is Annexure A to these reasons. The wife’s Case Outline refers to the overall division of the property pool sought by the wife as 60/40 per cent, in her favour.
In her Outline of Case filed 10 June 2024, the day before the commencement of the trial, the wife sought orders for the respondent to pay to her spousal maintenance of $500 a week. She contended her needs were equivalent to the amount sought, and the husband had capacity to pay. In her Amended Application for Final Orders, the wife did not seek any periodic spousal maintenance payments. Counsel for the husband submitted in the absence of orders sought in the Amended Application for Final Orders, there was no formal application before the Court, and that a party to a proceeding is entitled to know the case required to be met. I accept and agree with that submission, and the wife did not pursue her application for periodic spousal maintenance.
Documents relied upon by the wife
The wife relied upon the following documents:
(a)Amended Application for Final Orders filed 6 June 2024;
(b)Affidavit of the wife filed 6 June 2024;
(c)Financial Statement of the wife filed 23 June 2022;
(d)Outline of Case document filed 10 June 2024; and
(e)Documents tendered by counsel, including documents produced pursuant to subpoena.
The husband’s proposal
The Minute of Orders which the husband seeks are set out as an annexure to his Outline of Case filed 13 February 2024. The husband did not provide an amended Minute, despite the Suburb C property having now been sold rendering much of the Minute of Orders redundant. A copy of the proposed Minute of Orders is Annexure B to these reasons.
Amongst other things, the husband seeks an overall division of 5/95 in his favour, noting that the wife’s five per cent is “neutralised by the financial benefits she has received”, and proposes no further adjustments are made in her favour, including no split of superannuation entitlements.
Documents relied upon by the husband
The applicant relied upon the following documents:
(a)Affidavit of the husband filed 1 February 2024;
(b)Financial Statement of the husband filed 1 February 2024;
(c)Further Amended Response to Initiating Application filed 1 February 2024;
(d)Affidavit of Mr O filed 2 February 2024;
(e)Affidavits of Ms N (Single Expert Report) filed 21 September 2023 and 14 February 2024;
(f)Affidavit of Mr P filed 21 September 2023
(g)Affidavit of Mr M filed 21 September 2023;
(h)Judgment of Justice Carter dated 25 August 2023;
(i)Order of Chief Justice Alstergren dated 3 October 2023;
(j)Outline of Case Document filed 13 February 2024; and
(k)Documents tendered by counsel, including documents produced pursuant to subpoena.
Both parties tendered documents during the trial as follows:
Exhibit Number
Description
J-1
Q Pty Ltd Loan Activity Statement from 01.01.18 – 05.06.24 (jointly tendered)
H-1
Series of txt messages between selling agent and wife on 7 June 2024 [Re: sale of Suburb C Property].
H-2
Series of emails between solicitors for the parties dated 7 June 2024 2.51 pm [Re. contract for sale].
H-3
Email between solicitors for the parties. Friday, 7 June 2024 4.39 pm [Re: Husband signing contract for sale].
H-4
Letter from Husband’s solicitor to wife’s solicitor dated 15 March 2024.
H-5
Wife’s financial statement (page 10) dated 26 May 2023 [Re: laptop not returned by mother].
H-6
Wife’s L Finance Account statement from 01/01/2021 – 18/05/2023.
H-7
Commonwealth Bank of Australia statement – F Pty Ltd from 1 Oct – 30 Dec 2020 (Business transaction Account).
H-8
Westpac – Statement G Pty Ltd from 12 November 2020 – 12 February 2021.
H-9
Commonwealth Bank of Australia statement – F Pty Ltd from 1 December 20 – 28 February 2021 (business online saver).
EVIDENCE
The standard of proof in this case is the balance of probabilities (s 140 Evidence Act 1995 (Cth)).
Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.
Both parties relied upon their respective affidavits which exhaustively recount the history of the parties’ relationship and the dispute. I have examined that evidence, and do not propose to repeat it in these reasons. It is not necessary for a trial judge to refer to every piece of evidence or argument presented during a trial.
In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
Credibility of witnesses
The wife gave evidence and was cross-examined by counsel appearing on behalf of the husband. She was argumentative and non-responsive. She often sought to attempt to justify her past actions and sought to cast herself as a victim of the husband. In particular, her explanations about why she had failed to take timely steps to assist with the sale of the Suburb C property, including failure to rectify the damage to the property prior to her vacating, and her failure to pay the accruing mortgage debt, were less than satisfactory and an attempt at blatant self‑justification. Her evidence was difficult to accept and was embellished to suit her narrative.
The husband gave evidence and was cross-examined by counsel appearing on behalf of the wife. In contrast to the wife, he answered questions directly and responsively, and showed genuine emotion when recounting family violence incidents, which clearly had profoundly affected him. Where there is a factual dispute between the parties, I prefer the evidence of the husband to the wife.
PROPERTY APPLICATION
Relevant Legislation
Property proceedings between parties to the marriage are governed by the provisions of s 79 of the Act.
Section 79(1) of the Act provides that the court may make such orders as it considers appropriate altering the interests of the parties in the property.
Section 79(2) provides as follows:
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.
If the Court is satisfied that it is just and equitable to make an order altering the interests of the parties in property, s 79(4) of the Act sets out the matters which the court must take into account when considering what order (if any) should be made.
Section 79(4) provides as follows:
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.
Prior to the decision of the High Court of Australia (“the High Court”) in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”), the preferred approach to determine property matters was set out by the Full Court in the matter of In the Marriage of Hickey [2003] FamCA 395 (“Hickey”).
The approach, as set out in Hickey is as follows. Firstly, the court should make findings as to the identity and value of the property pool. Secondly, the court should determine the contributions of the parties both direct and indirect, including financial and non-financial contributions and then determine the contribution-based entitlements of each of the parties, as a percentage of the value of the property of the parties. Thirdly, the court should determine whether any further adjustment should be made to the contribution-based entitlements of the parties, after considering the relevant matters referred to in s 75(2) of the Act. Fourthly, the court should consider the effect of those findings and decide what order for division of property is just and equitable.
In Stanford, the High Court noted that s 79(1) enables the court to make such orders as it considers appropriate. However, prior to making any orders for the adjustment of parties’ interests in property, the court must determine whether it is just and equitable to make any property orders, or to alter the parties’ interests in property.
At paragraph [36] of Stanford, the High Court said:
The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.
In Bevan & Bevan [2013] FamCAFC 116 (“Bevan”), the Full Court considered which matters might be taken into account in determining whether it is just and equitable to alter existing property interests.
At paragraphs [84] and [85], Bryant CJ and Thackray J said:
84.Just as the expression “just and equitable” does not admit of exhaustive definition, it is not possible to catalogue the “range of potentially competing considerations” that may be taken into account in determining whether it is just and equitable to make an order altering property interests. However, in our view, it would be a fundamental misunderstanding to read Stanford as suggesting that the matters referred to in s 79 (4) should be ignored in coming to that decision. Indeed, such a reading would ignore the plain words of s 79(4) which make clear that in considering “what order (if any) to make, the court must take into account the matters referred to in that subsection.
85.This requirement to consider the s79(4) matters, in determining whether it is just and equitable to make any order provides fertile ground for potential conflation of the two different issues, which the High Court has warned against. However, this potential will not be realised in many cases because of what the plurality said at [42] about the “just and equitable” requirement being “readily satisfied”. But there will be a range of cases, of which arguably the present is a good example, we determining whether it is just and equitable to make any order altering property interests will not be so clear cut and will therefore require not only separate but very careful deliberation.
In Bevan, Finn J stated at paragraph [169]:
169.Findings of fact concerning of the parties financial history (i.e. the contributions) and their present circumstances and future prospects made in the context of s 79(4) will also assist, but such findings cannot (according to Stanford) be conclusive in determining whether or not it is just and equitable to make an order altering any particular property interest.
The Full Court in Chancellor & McCoy [2016] FamCAFC 256 said at paragraph [42]:
42.In adopting the approach she did, her Honour proceeded in accordance with what the Full Court said in both Bevan and Chapman, namely that it is open to a trial judge to take into account the matters stated in s 79(4) (or s 90SM) of the Family Law Act 1975 (Cth) ("the Act") when determining whether it is "just and equitable" to adjust existing property interests. However, consistent with Stanford, her Honour also recognised that it was not open to her to decide that issue merely by reference to those matters.
The High Court stated in Stanford at [37]:
37.First, it is necessary to begin consideration of whether it is just and equitable to make property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property… The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order."
At paragraph [40] of Stanford, the High Court stressed that the question of whether it is just and equitable to make property settlement orders should not be answered by starting with an assumption:
40.…that one or other party has the right to have the property of the parties divided between them, or has the right to an interest in a marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised "in accordance with legal principles, including the principles which the Act itself lays down". To conclude that making an order is "just and equitable" only because of and by reference to various matters in s 79(4) without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
The High Court further stated at [42] that:
42.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).
In the majority of matters, the decision as to whether or not it is just and equitable for the Court to make property orders is resolved by the breakdown of the marital relationship and the mutual applications of the parties to the court for orders altering their respective.
IS IT JUST AND EQUITABLE TO ALTER THE PARTIES’ PROPERTY INTERESTS?
I will now consider whether it is just and equitable to make an order adjusting property in this particular case. In order to do so, I am required to adopt the pathway set out in the relevant authorities and to embark on a separate but very careful deliberation. As previously referred to, Stanford requires the first step of that inquiry to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.
THE PARTIES’ EXISTING INTERESTS IN PROPERTY
The parties existing property interests are outlined in their respective Case Outlines, which the husband slightly amended per his affidavit of 6 June 2024 and Aide Memoir of 22 August 2024, and are extrapolated below, noting that I have amended the table to reflect the sale of the Suburb C property, which settled on 16 August 2024, after the filing of the parties’ documents. Because the parties failed to provide a joint Balance Sheet identifying agreed and disputed assets and liabilities, doing the best I can, below is a balance sheet constructed from the documents of the parties.
I have also adopted the net proceeds of sale of the Suburb C property in the husband’s solicitor’s trust account as $31,876.42, in accordance with the husband’s Aide Memoire dated 22 August 2024, which sets out the distribution of the proceeds of sale of the Suburb C property and which was not disputed by the wife.
Description
Owner
Wife’s value
Husband’s value
Real Estate
J Street, Suburb K, Victoria
Husband
$750,000
$750,000
Joint funds in the KCL Law Trust Account available following settlement of B Street, Suburb C, Queensland and payment of various related expenses
Joint
$31,876.42
Motor Vehicles
Motor Vehicle 1
Wife
NK
$10,000
Bank Accounts
Commonwealth Bank joint accounts ending in #...49, #...30 and #...51
Joint
$0
$0
Commonwealth Bank savings account #...07 as at 30 January 2024
Husband
NK
$348
Commonwealth Bank savings account #...94 as at 29 January 2024
Husband
NK
$536
ANZ Bank savings account #...75 as at 29 January 2024
Husband
NK
$530
Commonwealth Bank Account ending #...92
Wife
Nominal
$270.59
Commonwealth Bank Account ending #...60
Wife
Nominal
$1.13
Commonwealth Bank Account ending #...44
Wife
Nominal
$0
Commonwealth Bank Account ending #...90
Wife
Nominal
NK
Commonwealth Bank Account ending #...61 – Suburb C short term rental
Wife
Nominal
$0
Commonwealth Bank Account ending #...76 – R Company
Wife
Nominal
$0
Commonwealth Bank Account ending #...31 – D Pty Ltd
Wife
Nominal
$0
Commonwealth Bank Account ending #...26 – E Pty Ltd
Wife
Nominal
$0
Commonwealth Bank Account ending #...63 – S Company
Wife
Nominal
$0
Commonwealth Bank Account ending #...78 – D Pty Ltd
Wife
Nominal
$0
Commonwealth Bank Account ending #...01
Wife
Nominal
NK
Commonwealth Bank Direct Investment Account ending #...00
Wife
Nominal
$4.39
Commonwealth Bank Account ending #...10
Wife
Nominal
$181
Commonwealth Bank Account ending #...75 – R Company
Wife
Nominal
$2,885.45
Add back – Money received by Wife as part property and/or from joint savings
Wife
E$140,710.44
Add back - Money received by Husband as part property and/or from joint savings and distribution from proceeds of sale of Suburb C property
Husband
$14,000
$150,000
T Company Shares (owned prior to cohabitation and marriage)
Husband
$6,700
$6,696.02
Online Trading Platform
Husband
$0
Cryptocurrency
Husband
$0
L Finance Portfolio – Value at separation
Joint
E$20,388
$20,388.07
Business
F Pty Ltd, G Pty Ltd and H Group – As per single expert valuation.
Hadleigh Group / Husband
E$1,022,000
$Nil
Chattels
Engagement ring and bracelet
Wife
$36,000
Household contents in the Queensland property
Joint (in the applicants’ possession)
$75,000
Computers in the Queensland property
Joint
$10,000
Total assets
$3,549,088
$
Liabilities
Mortgage to ANZ Bank secured against Suburb K property as at 29 January 2024
Husband
NK
$609,186
Credit Cards
Westpac MasterCard ending #...77 as at 28 January 2024
Husband
NK
$9,612
American Express
Wife
NK
ANZ Bank visa card
Wife
NK
Tax
Taxation as at 6 June 2024
H Group
$469,482.62
Total liabilities
NK
$
Net assets (excluding superannuation)
NK
$
Superannuation
Superannuation Fund 1 as at 28 January 2024. Accumulated interest.
Husband
E$250,000
$247,349
Superannuation Fund 2 as at 17 June 2022. Accumulation interest.
Wife
E$6,500
$6,545
Superannuation Total
$256,500
$253,894
Net Total Assets (including superannuation)
NK
Other – businesses set up by the wife post separation
R Company
Wife
NK
NK
E Pty Ltd
Wife
NK
NK
U Business
Wife
NK
NK
The parties did not dispute the value of any of the substantial assets, other than the business valuation, although the wife did not adduce evidence of questions posed to the Single Expert Witness nor require her for cross-examination, as had been foreshadowed by counsel when she was represented.
There were no valuations of the wife’s jewellery, the parties’ household contents, the motor vehicle, nor the computers retained by the husband. There were no updated balances of the parties’ various bank accounts, which had nominal value, and in some instances no value. In the absence of up-to-date bank statements and valuations, I am unable to determine the current value of the bank accounts and those assets which have not been valued and will therefor exclude them from the asset pool. I will take them into account under s 75(2)(o) of the Act.
The valuation of the businesses was carried out by Ms N, who was appointed as Single Expert valuer by orders made 30 September 2022. She was required to value the various entities as at December 2020, the date of commencement of cohabitation, and as at 31 May 2023. Her valuation is annexed to her affidavit filed 21 September 2023.
Ms N valued G Pty Ltd and F Pty Ltd (collectively, the “consolidated entities”) at $356,000 and H1 Pty Ltd as having no value, as at December 2020. Adopting the mid-range of her valuations, as at 31 May 2023, Ms N valued the consolidated entities at $1,488,000 and H1 Pty Ltd at nil.
On 8 February 2024, the husband via his solicitors, forwarded a series of questions and updated financial information to Ms N and sought her opinion as to whether the previous valuation of the business should be adjusted. A copy of the letter is annexed to her further affidavit filed 14 February 2024 as is her response. She concluded:
Adopting an asset-based methodology, and assuming the balance sheet as at 31 January 2024 does not require any adjustment, then the value of the business and equity is likely to be zero. The decline in the net assets primary reflects the losses generated since May 2023.
(Emphasis added)
Because the wife did not challenge Ms N’s opinion about the reduction of value of the consolidated entities, I intend to adopt the valuation of the businesses as nil, and I rely on the updated report of Ms N, wherein she revised her earlier valuation as a result of receiving further information. I also do not intend to include the businesses set up by the wife post separation in the asset pool, and in any event their value was not disclosed. I will take them into account under s 75(2)(o) of the Act.
The wife did not disclose any credit card liabilities; however, their existence was noted in the husbands Outline of Case. As there was no disclosure from the wife regarding same, I will exclude them from the asset pool but take them into account under s 75(2)(o) of the Act.
The value the parties attributed to their respective superannuation accounts differed slightly. As I prefer the evidence of the husband to the wife, I will adopt the values as set out by him.
Conclusion as to the existing legal and equitable interests of the parties – adjusted balance sheet
As a result of my findings as to disputed assets, and the treatment thereof, the existing legal and equitable interests of the parties, is as follows:
Description
Owner
Value
J Street, Suburb K, Victoria
Husband
$750,000
Joint funds in the KCL Law Trust Account available following settlement of B Street, Suburb C, Queensland and payment of various related expenses
Joint
$31,876.42
Businesses
F Pty Ltd, G Pty Ltd and H Group – As per single expert value dated 14 February 2024
Hadleigh Group / Husband
$0
Liabilities
Mortgage to ANZ Bank secured against Suburb K property as at 29 January 2024
Husband
$609,186
Credit cards
Westpac MasterCard ending #...77 as at 28 January 2024
Husband
$9,612
Tax
Taxation as at 6 June 2024
H Group
$469,482.62
Superannuation
Superannuation Fund 1 as at 28 January 2024. Accumulated interest.
Husband
$247,349
Superannuation Fund 2 as at 17 June 2022. Accumulation interest.
Wife
$6,545
Superannuation total
$253,894
Net Total Assets (Including Superannuation)
-$52,510.20
In this matter the parties have separated, and the wife has made an application to the Court seeking orders altering the respective property interests. The husband also seeks that the existing property interests should be altered. The parties are no longer living in a marital relationship, and as stated at paragraph [42] of Stanford (supra), there will not “thereafter be the common use of property by the husband and the wife”.
I am satisfied that it is just and equitable to alter the parties’ property interests.
I now turn to consider the s 79(4) factors, commencing with contributions of the parties.
CONTRIBUTIONS
Per the wife’s affidavit filed 6 June 2024 and the husband’s affidavit filed 1 February 2024, at the commencement of cohabitation, they each had the following assets:
Description
Owner
Wife’s value
Husband’s value
Real Estate
J Street, Suburb K
Husband
$750,000
$750,000
Motor Vehicles
Motor Vehicle 2 encumbered by a hire-purchase loan for $28,000.
Husband
Sold, net proceeds E$13,000 in 2021
Sold, net proceeds E$12,000 in 2021
Motor Vehicle 3
Wife
$20,000 (sale price in 2021)
E$10,000 (less costs)
Businesses
Interest in G Pty Ltd and F Pty Ltd, as at December 2020 per the Single Expert report.
Husband
$356,000 per single expert
Interest in H1 Pty Ltd, as at December 2020 per the Single Expert report.
Wife
$0 per single expert
Interest in D Pty Ltd, as at December 2020 per the Single Expert report.
Wife
$0 per single expert
Bank Accounts
Savings in husbands name as at December 2020
Husband
$4,000
Savings in the wife’s name
Wife
E$30,000
NK
Westpac Bank Account #...84 as at December 2020
G Pty Ltd / Husband
$167,480.62
Commonwealth Bank of Australia
Account #...94 as at December 2020
F Pty Ltd / Husband 50% share
$280,733.96 ($140,366.98)
Commonwealth Bank of Australia
Account #...13 as at December 2020
F Pty Ltd / Husband 50% share
$145,004.59 ($72,502.295)
Other
Furniture, chattels, and personal possessions
Husband
$30,000
Furniture, chattels, jewellery, and personal items
Wife
E$70,000
Minimal
Settlement proceeds received following the breakdown of the respondent’s former relationship – applied towards the purchase of the Suburb C property
Husband
$18,000
Assets subtotal
Wife (per wife’s value): $120,000
Husband (per husband’s value): $1,550,349.90
Liabilities
Mortgage associated with Suburb K apartment
Husband
NK
$609,186
Unpaid parking and traffic related fines
Husband
Excess of $10,000
NK
Victorian State Revenue Office debt
Husband
Excess of $16,000
NK
Liabilities subtotal
$26,000
$609,186
Net assets (excluding superannuation)
$857,000
$951,163.90
Superannuation
Husband’s superannuation entitlements
Husband
$190,000
Wife’s superannuation entitlements
Wife
Modest
Superannuation subtotal
$190,000
Wife TOTAL (assets – liabilities + superannuation)
$120,000
Husband TOTAL (assets – liabilities + superannuation)
$1,131,163.90
At the start of cohabitation, the wife contends that she was able to generate income from her various business interests and provide for her own needs. The wife did not provide any documentation to support her contended assets or their value.
The husband deposed that as at the date of cohabitation, the wife had no significant assets and her businesses, H1 Pty Ltd and D Pty Ltd, had no value. Conversely, the husband asserts that he had two established business interests in G Pty Ltd and F Pty Ltd, equity in a property in Suburb K which he had purchased in 2017, a car, and superannuation entitlements.
I accept the parties had the assets referred to in the above table, except the amount of savings claimed by the wife and the value of the personal effects and chattels of each of the parties, because there was no valuation of these assets or bank statements supporting the amount of savings claimed by the wife. Further, there was no evidence before me regarding the unpaid parking and traffic related fines and Victorian State Revenue Office debt attributed to the husband, other than the wife’s bare assertion in her affidavit. Leaving aside these issues, the husband had overwhelmingly greater assets than the wife, at the commencement of cohabitation. According to the husband’s counsel in his opening address, the husband had around $800,000 of assets, plus superannuation, at the commencement of the relationship, and the wife had the proceeds of sale of her car. The table of assets above indicates his assets actually exceeded the estimate provided by counsel.
Because of the short duration of the relationship, being around 16 months, and a marriage of around one year, it is convenient to consider contributions during the marriage in terms of the primary assets, the business, and the Suburb C property.
The businesses
At the commencement of the relationship, the husband was the sole owner of G Pty Ltd, and a partner of F Pty Ltd. The wife owned a business known as H1 Pty Ltd. As of early 2021, the husband became the sole shareholder of F Pty Ltd after buying out his business partner, using resources he had prior to the relationship. G Pty Ltd and F Pty Ltd were valued by the single expert valuer at $356,000 as at December 2020. H1 Pty Ltd had no value.
During the relationship, the parties combined their business interests to create a group known as the “[Hadleigh] Group” which comprised of H Group, H1 Pty Ltd, H2 Pty Ltd, D Pty Ltd, E Pty Ltd, the Hadleigh Family Trust, and Hadleigh Family Group Holdings (“HFGH”). G Pty Ltd and F Pty Ltd are not entities within the Hadleigh Group. During the relationship, both parties received a salary of $120,000 per annum paid by H Group Pty Ltd.
In January 2021, the wife was appointed as Managing Director of the H Group, and brand director for all brands under HFGH. The wife claims within this role, both parties used their complementary skills to expand H Group, and she devoted much of her time and energy to developing and expanding H2 Pty Ltd. In her final submissions, the wife asserted that the reason why the business was successful was due to the marketing strategy implemented by her, and the skills she brought to the business. I do not accept her submission because the husband had a successful and valuable business at the commencement of cohabitation, which he established and conducted without her involvement, and because of her tendency to inflate and exaggerate her contributions.
I do, however, accept that both parties worked on the rebranding of the business during the relationship, and received remuneration for their efforts.
According to the husband, the wife diminished his capacity to run his businesses and was abusive and aggressive in workplace correspondence which resulted in a loss of confidence in his leadership, and negatively affected staff members. One example of this is the wife showing staff members a photograph of the police attending the Suburb C property in response to the husband allegedly assaulting her, when in fact the police were responding to an assault committed by the wife, and shortly thereafter the police initiated intervention proceedings against the wife on behalf of the husband. The husband further asserts that due to the wife’s behaviour and actions during the relationship, clients were lost, and the business was disrupted as she interfered with his ability to meet client requirements and timeframes. In his final submissions, the husband asserted that the wife had not provided any evidence she contributed to the business in a meaningful way, and her involvement was negative and had a disruptive impact on the business.
Prior to cohabitation, G Pty Ltd and F Pty Ltd had long and well-established client lists including many high-profile clients, who were the central income earners for the businesses. In his trial affidavit, the husband deposes that most, if not all, of these clients had been established prior to cohabitation and the marriage, and those that were secured during the relationship were already “in the pipeline” prior.
In the husbands Outline of Case document, he asserts that the present value of the Hadleigh Group, G Pty Ltd and F Pty Ltd are reflective of his resources and property which he owned prior to the relationship, and the substantial effort he applied to them following separation, without any input from the wife.
The wife sought to maximise her asserted contributions to the business, which I reject. I do so because of the identified propensity of the wife to exaggerate matters which she thought would bolster her case, and because of the statements of the valuation report about the strengths of the respective businesses, which relate to the actual conduct of the business. The report refers to the contacts and consultants in the husband’s business sphere, and states that “work for [G Pty Ltd] and [F Pty Ltd] was won through the husband’s professional network generated from working in [his] industries for 20 years. The husband previously worked with executives at [large companies] and his relationship/associations with those people assisted him in obtaining work.”
In her affidavit of 6 June 2024, the wife asserts that following separation, the husband undermined her role in the business and effectively oust her from the H Group. This included removing her as director of various companies, removing her access to company bank accounts and communication platforms, ceasing her salary payments and superannuation, and recovering Motor Vehicle 1 that had been used by both parties during the marriage. I accept the husband did remove the wife from the business post separation and accept his evidence about the wife’s unprofessional and vindictive conduct referred to in his affidavits.
The husband recounts in detail in his affidavit, the conduct of the wife. I also have regard to the fact that the husband obtained an intervention order against the wife in mid-2022, his evidence about the wife’s subsequent breaches, her unauthorised use of the company credit card and the dismissal of her Contempt Applications directed to employees of the business, as referred to in paragraph [62] of the husband’s trial affidavit.
Self-evidently, the short relationship between the parties was tumultuous. I prefer the evidence of the husband to the wife about their respective contributions to the business throughout the relationship, because of the wife’s tendency to exaggerate when it suits her, and her tendency to minimise matters when it is to her advantage, including her attempts to inflate the value of her business, when at the commencement of cohabitation it was valued at nil. Another example of this conduct is the wife’s version of the altercation in the Suburb C property in early 2022, where she perceives herself as victim of the husband’s aggression, whereas the husband was the true victim, as evidenced by the photographs of his wounds inflicted by the wife. The wife also sought to minimise her assault of a neighbour and to blame the neighbour, in circumstances where she was to face a criminal trial for assault. Despite the wife’s lawyers advising this Court the wife would contest the allegations, she ultimately pleaded guilty.
In any event, irrespective of the claims about respective contributions to the business during the relationship, it is apparent that the valuation of the business significantly deteriorated as at the time of trial.
The Suburb C property
In late 2021, the parties settled on the purchase of the Suburb C property. According to the husband, he paid the deposit of $150,000, and $1,270,000 was borrowed from Q Pty Ltd, being the custodian of the mortgagee, V Ltd. The balance required at settlement was $268,681.60, which was funded by the husband, save for the sum of approximately $69,000 contributed by the wife. The wife asserts in her affidavit of 6 June 2024, however, that the monies contributed towards the purchase of the Suburb C property were sourced from the business the parties operated together during their marriage. During cross-examination the wife agreed she had contributed the proceeds of sale of her car (approximately $10,000) to the deposit for the Suburb C property, and saved salary of around $50-60,000. She agreed the husband had contributed the balance of the deposit, the funds used by him were withdrawn from the F Pty Ltd account, but asserted the money from the F Pty Ltd account was “our money”. I do not accept the characterisation of the funds by the wife, and accept the husband’s contribution as stated by him, because significant cash sums in the F Pty Ltd accounts were identified in the valuer’s report as an asset of the company as at December 2020.
It is common ground that during the relationship, the mortgage repayments on the Suburb C property were met from joint finances. As of April 2022, the husband ceased making mortgage repayments for the Suburb C property, because he vacated the property and the wife remained in the property post separation. Subsequent to separation, the wife did not receive a salary from the business nor any financial support from the husband but remained in occupation of the Suburb C property.
The wife paid some mortgage instalments between 21 November 2022 and 13 February 2023, which totalled around $23,000. Thereafter, the wife did not pay any mortgage instalments, rates, taxes and/or owners corporation fees despite retaining the benefit of short term rental income received from the property, as well as “rooming leases” entered in mid-2023 when she received $920 per week, according to the husband. From April 2022 to May 2024, the wife received approximately $76,767 from a short term rental company as a result of renting out bedrooms in the Suburb C property.
As a result of the failure to pay the mortgage, the mortgagee instituted proceedings in the Supreme Court of Queensland in mid-2023.
The husband deposed that post separation, he did not want to retain the Suburb C property. Indeed, after the husband was served with the Statement of Claim regarding the mortgage arrears, on 27 October 2023 he instructed his solicitors to seek the wife’s consent to sell the property, and no response was received.
On 15 February 2024, I made orders for the wife to vacate the Suburb C property within twenty‑eight days, and for arrangements to be made for the sale of the property. On 15 March 2024, the wife had failed to vacate the property and cooperate with the selling agent, so he had not been able to access the property nor been provided with the keys (Exhibit H-4). Per the husband’s affidavit filed 6 June 2024, he spent $13,783.22 to undertake necessary repairs to the Suburb C property in order to prepare it for sale, which he asserts was a direct result of the disrepair the wife left the property in when she vacated the home on 3 April 2024. Annexed to his affidavit filed 6 June 2024 are photographs of the damage to the property and it is evident the property was in an entirely unsatisfactory state of disrepair after the wife eventually vacated. The wife’s breach of the orders made 15 February 2024 and the state in which she left the Suburb C property, caused further delay to its sale.
In mid-2024, the Suburb C property sold for $1,750,000 and settlement occurred around two months later. After deducting various costs at settlement, and a payment to the husband in accordance with orders made on 15 February 2024, with which the wife agreed, there was $31,876.42 remaining for distribution between the parties.
The husband contended, and it was not disputed, that the payout figure of the Suburb C mortgage at separation was $1,261,964.38 and at settlement of the sale was $1,479,935.56 an increase of $217,971.18 during the period the wife solely occupied the property.
The wife failed to pay council rates, water rates and body corporate fees during her sole occupation of the property. According to the husband the arrears accumulated post separation which were paid at the settlement of the sale were $19,586.32. The costs incurred by him for repairs and clean-up of the property, prior to sale was $13,783.
It is clear that since separation, the equity in the Suburb C property significantly decreased as a result of the failure to meet mortgage repayments, and outgoings referable to the property and the wife’s delay in vacating the property and agreeing to an orderly sale. The husband asserts, and I accept, that had the mortgage and rates/taxes on the Suburb C property been paid when they fell due, during the wife’s period of sole occupation of the property, there would be an additional sum of $237,557.50 available for distribution between the parties.
Money received post separation
On 31 March 2022, the day following separation, the wife deposes to discovering that the husband had attempted to transfer $60,000 from a joint account, into a bank account in his mother’s name. She subsequently contacted the bank to cancel the transaction and freeze the account.
As a result of this attempted withdrawal, the wife transferred $44,710.44 from one of the parties’ joint bank accounts to her personal account, and $14,000 to a different joint account supposedly to meet the monthly mortgage repayments for the Suburb C property. On 1 April 2022, the husband withdrew $14,100 from this account, leaving a balance of $33.12. It is unclear based on the material the exact mortgage repayment amount as at this date; however, the husband deposes that in April 2023, monthly repayments totalled $8,800.
On 8 April 2022, the wife withdrew a further $27,000 from a joint account in the name of D Pty Ltd, into a new business bank account established in the same name. It was the wife’s intention for this amount to provide working capital for the business and business expenses as and when required, but the wife contended it was subsequently spent on living expenses and some legal fees.
On 30 September 2022, interim orders were made for the parties to access the balance of funds held in an account ending …51, for the sole purpose of transferring the funds to the solicitor for the wife by way of part property settlement. An order was also made for the wife to receive Motor Vehicle 1 by way of part property settlement. In the husband’s trial affidavit, he deposes that the balance of funds totalled $60,000.
Whilst not explicitly outlined by counsel for the husband, doing the best I can, it can be assumed that the $140,710.44 “add back received by wife as part property and/or from joint savings” comprises of the $44,710.44, $14,000 and $27,000 transferred by the wife from the parties bank accounts, in addition to the balance of funds transferred to the wife’s solicitor by way of part property settlement totalling $60,000. Whilst these figures total $145,710.44, the figure the husband provided is E$140,710.44.
On 15 February 2024, further orders were made by consent providing for the husband to receive the sum of $150,000 from the proceeds of sale of the Suburb C property. The purpose of the February 2024 order was to equalise the amount each party received as partial property settlement. During cross-examination, the wife agreed the husband should be entitled to receive the sum, in accordance with the orders.
Prior to the distribution from the proceeds of sale of the Suburb C property, the husband had the benefit of $14,100 he withdrew from one of the joint accounts on 1 April 2022.
Since separation the wife has also utilised casual work using the motor vehicle. According to the husband, she has earnt approximately $6,592 of additional income via this means from November 2022 to April 2023.
Other
During the relationship, the wife asserts that she was responsible for most of the domestic duties including meal preparation and laundry, although conceded that a part time paid assistant was employed to clean, complete chores, and do errands. She also deposed to redesigning and furnishing the matrimonial Suburb C home. This is not disputed by the husband in any of his material.
Despite claiming the husband was financially abusive, she states in her Outline of Case that during the relationship she managed the parties’ personal finances, including payment of bills.
There was no suggestion by either party that the wife made any contribution to the Suburb K property or to the husband’s superannuation entitlements.
Discussion
The husband’s greater financial contributions at the commencement, and during, the short relationship is self-evident and detailed above. It is also abundantly clear that the wife’s actions in failing to pay the mortgage instalments and outgoings attributable to the Suburb C property significantly decreased the net proceeds of sale of the property which would be available for distribution of the parties.
Having regard to the evidence above as to contributions, and weighing up and assessing the myriad of contributions of the parties, both financial and non-financial, direct, and indirect, at the commencement of the relationship, during the relationship, and post-separation, and the parties’ contributions as homemaker and in particular that the period of cohabitation was around 16 months, I assess those contributions as in favour of the husband at 95 per cent and 5 per cent in favour of the wife.
The orders I intend to make will not have any effect on the earning capacity of either party, there are no other relevant orders and there are no children of the marriage (s 79(4)(d), (f) and (g) of the Act).
SECTION 75(2) FACTORS – FUTURE NEEDS
The husband is 40 years old and maintains good health. He continues to run his business, although according to the financial information provided to the business valuer, the success of the business has been diminished.
The wife deposes to having “significant health issues”, which she alleges is a result of the husband’s behaviour during the relationship and since separation. She describes herself as “listless” and lacking energy as a result of stress and lack of appetite following separation.
The wife was also diagnosed with attention deficit hyperactivity disorder (“ADHD”) around mid-2021, and was prescribed medication. She asserts this health issue has negatively impacted her ability to provide herself with income and work, and as a result she is currently reliant on Centrelink benefits. As such, the wife seeks an adjustment of 10 per cent to account for her future needs.
The wife also asserts that she experienced family violence from the respondent during the relationship, including physical violence in addition to emotional, financial, and verbal abuse which has had a detrimental impact on her mental health.
The wife is no longer receiving a salary nor employment benefits. She deposed to having been required to apply the amount of $44,701 that she withdrew from the joint account following separation to meet her living expenses and legal fees and has expended the entire amount she withdrew.
The wife did not file an updated Financial Statement prior to the trial, however, per the Financial Statement filed on 26 May 2023 (not relied upon the wife, but tendered as Exhibit H-5), her weekly personal expenditures totalled $3,914.90 and her weekly income totalled $1,001. Similarly, in the husbands Financial Statement filed 1 February 2024, his expenses significantly outweighed his income.
The wife remains sole director of D Pty Ltd and E Pty Ltd, and since separation has also set up various other businesses including a podcast, and a website and shop front called R Company. Details of the wife’s enterprises are referred to in the husband’s affidavit filed 6 June 2024, including transcripts of podcasts made by the wife, where she is overwhelmingly positive about her business acumen. When cross-examined about her podcasts, the wife said she had knowingly exaggerated. If that evidence is accepted, which it is not, it would be almost impossible to discern what the wife is really up to with her business interests. Whilst she has not disclosed the income of these entities, given her business experience and background it is likely these endeavours may provide a source of income.
The wife clearly is resourceful and, in the past, has displayed some degree of business acumen.
Both parties have no children, no obligation to support any other person, and are capable of full-time work either in their own businesses or for others. Indeed, since separation they have proven to be capable of working, engaging in business endeavours, and receiving income.
I do not accept the duration of the marriage, being approximately one year, has had any discernible effect on the earing capacity of either party. The husband will continue to run his businesses, and the wife will no doubt avail herself of opportunities which come her way.
In my view, there should be no adjustment to either party for their future needs.
As to s 75(2)(o) of the Act, as referred to above, I have regard to the bank accounts of each party, the motor vehicle, credit card liabilities, the businesses set up by the wife post separation, and the chattels in their respective possession.
WHAT PROPERTY ADJUSTMENT ORDER IS JUST AND EQUITABLE
Turning now to consider how to give effect to my determination of s 79(4) factors.
The real difficulty in this case is that there are less assets than there were at the commencement of the relationship, and that each party has had a partial distribution of property of around $150,000. Despite the minimal amount remaining in trust for distribution between the parties, being $31,876.42, each party claims that they should receive more than the funds in trust, despite an obvious lack of capacity of both parties to pay the sums sought by the other. It is almost impossible to ascribe a percentage division of the assets between the parties in the context of such a short relationship, the overwhelming financial contribution by the husband, the decrease in value of the husband’s business and the partial distribution of $150,000 to the wife, which is in excess of any likely adjustment to her.
During her final submissions, the wife sought an equal division of the funds in trust and a payment from the husband of $150,000, although she could not identify any source of funds to enable the payment to be made or why such a payment should be made to her at all.
On the other hand, the husband sought payment of all the funds in trust and that the wife should be responsible for a further sum of $300,776 comprising the following:
·Increase of the mortgage payout figure between date of separation and settlement totalling $217,971.18;
·50 per cent of the single expert fees pursuant to orders 8 and 9 made 30 September 2022 totalling $15,237.50;
·50 per cent of the mediator’s costs pursuant to order 12 of the orders of 30 September 2022 totalling $2,750;
·Costs order made by the Honourable Justice Carter on 25 August 2023 totalling $15,000;
·Arrears of accumulated outgoings post separation referable to the Suburb C property totalling $19,586;
·Repairs and cleanup costs recommended by the selling agent to prepare the Suburb C property for sale following the wife vacate in the property, which were paid by the husband totalling $13,783;
·Costs order made on 15 February 2024 totalling $8,448; and
·Cost of chattels the wife failed to make available to the husband pursuant to orders made on 15 February 24 totalling $8,000.
I accept the husband’s contention that the wife should be held accountable for payment of outstanding amounts to the valuer, the mediator engaged by the parties, costs orders of the court, damage to the Suburb C property which occurred during her occupation of the property, outgoings referable to the Suburb C property during her sole occupation, and for the majority of the increase in the payout of the Suburb C mortgage arising from both her failure to pay and her failure to sell the property in a timely manner.
If the remaining assets, including the addback of the partial property settlements of around $150,000 made to each party, are adjusted in the proportion of contributions as found by me, the wife would be entitled to receive around $12,374.50. That figure is less than the $150,000 she has already received.
I do not intend to make orders for either party to pay the other any further sum because there is no identified asset which could, or should, be realised to fund the payment, and it is blatantly obvious neither party would have the capacity to make payments in accordance with any such order. In the circumstances of this case, an order for payment of additional sums by either party would be futile.
I therefore intend to make an order that the funds remaining in trust be paid to the husband. I will also make orders that the husband shall retain his businesses, the Suburb K apartment, all funds previously distributed to him, his bank accounts and personal possessions and superannuation entitlements.
I will also make an order providing for the wife to retain the funds paid to or removed by her from the various bank accounts, her personal bank accounts and possessions, superannuation and the business entities established by her post separation.
As at the date of final submissions, the wife had failed to return to the husband his personal possessions in accordance with the orders made on 15 February 2024. I am unaware whether she has complied as at the date of these reasons. If she has not, I have included an order requiring her to forthwith comply with the order. I have also included an order, as proposed by the husband, for him to transfer registration of their dog to the wife. The dog has remained with the wife, and I assume the wife will welcome such an order.
Because of the wife’s prior non-compliance and disregard of court orders, it is appropriate to make an order pursuant to s 106A of the Act to enable the husband to more readily enforce court orders.
I consider the proposed orders to be just and equitable in the circumstances of this case.
I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 26 November 2024
ANNEXURE A
Minute of Orders sought by the wife
1.That the net sale proceeds of the property at B Street, Suburb C in the state of Queensland be divided equally between the parties.
2.That the Husband pay to the Wife the sum of $150,000:
(a)$50,000 within 14 days
(b)$50,000 within a further 30 days
(c)$50,000 within a further 60 days.
3.That the Mother [sic]:
(a)Renounce any interest she may have in; and
(b)Resign as Director or any office bearer or other role in relation to; and
(c)Transfer her share holding in to the Husband or his nominee; in relation to the following entities:
(i)F Pty Ltd
(ii)G Pty Ltd
(iii)The Hadleigh Family Trust
(iv)Hadleigh Holding Pty Ltd
(v)H Group Pty Ltd
(vi)H1 Pty Ltd
(vii)H2 Pty Ltd
(viii)D Pty Ltd
(ix)E Pty Ltd
(x)Hadleigh Family Group Holdings Pty Ltd
(d)The Husband to provide the required documentation to the Wife within 14 days for her execution within a further 7 days, at the expense of the Husband.
4.That the Father:
(a)assume sole responsibility for and indemnify the Wife in relation to all claims that may be made against her as a result of the dealings of the following entities:
(i)F Pty Ltd
(ii)G Pty Ltd
(iii)The Hadleigh Family Trust
(iv)Hadleigh Holding Pty Ltd
(v)H Group Pty Ltd
(vi)H1 Pty Ltd
(vii)H2 Pty Ltd
(viii)D Pty Ltd
(ix)E Pty Ltd
(x)Hadleigh Family Group Holdings Pty Ltd.
5.That the Husband retain:
(a)His interest in the property at J Street, Suburb K, Victoria;
(b)Any money in accounts in his name;
(c)Any furniture and chattels in his possession and/or control;
(d)Any shares and/or investments in his sole name;
(e)His superannuation entitlements;
And indemnify the Wife regarding any liabilities relating to any of these interests.
6.That the Wife retain:
(a)Any money in accounts in her name;
(b)Any furniture and chattels in her possession and/or control;
(c)The joint L Finance portfolio investment, the Husband to transfer this at his expenses into her sole name;
(d)Any shares and/or investments in her sole name;
(e)Her superannuation entitlements;
And indemnify the Husband regarding nay liabilities relating to any of these interests.
ANNEXURE B
Minute of Orders sought by the husband
1.Paragraphs 1 to 4 of the Orders as sought by the Applicant in her Initiating Application (Family Law) filed on 24 June 2022 be dismissed.
2.The real property situated and known as B Street, Suburb C, in the State of Queensland and being the land more particularly described in Title Reference …, (‘the Suburb C property’) be forthwith sold out-of-Court on the following conditions:
(a)The Wife shall vacate the Suburb C property within 30 days of the date of these Orders (‘the vacation date’).
(b)The parties sign the Sale Authority with W Real Estate within seven (7) days of the date of these Orders. The appointment of W Real Estate is subject to the following terms and conditions:
(i)the advertising fees, including GST, and marketing costs being no more than $3,900;
(ii)the commission being no more than 2.2% of the selling price, including GST;
(iii)the property be marketed at the range of $1,720,000 to $1,820,000;
(iv)the reserve price shall be such other figure as agreed upon between the parties, in writing, and failing agreement as nominated by the selling agent, subject to the reserve not being less than $1,700,000;
(v)all communications by the parties with the selling agent are to be copied into the other;
(vi)the parties shall sell the Suburb C property either by private sale or auction and will follow the recommendation of a selling agent;
(vii)the parties will follow the recommendations of the selling agent in relation to the preparation of the property for sale and these costs shall be paid equally between the parties. Should one party pay the totality of the costs, the other party’s 50% share of these costs shall be deducted from the funds they shall receive pursuant to paragraph 2(d)(iv) herein.
(c)The parties appoint X Pty Ltd in Queensland as their conveyancer to act for them for the sale of the Suburb C property, with all costs and disbursements of the conveyancer to be paid prior to the sale of the Suburb C property and paid equally between the parties. Should one party pay the totality of these costs or any part thereof, the other party’s 50% share of these costs shall be deducted from the funds they shall receive pursuant to paragraph 2(d)(iv) herein.
(d)Upon settlement of the sale of the Suburb C property, the proceeds of sale shall be applied in the following order and manner:
(i)firstly, in payment of all costs, commissions and expenses of the sale, including adjustments with any unpaid Council rates, water rates, owners corporation, insurance or other fees to be adjusted solely against the sum to be received by the Wife pursuant to paragraph 2(d)(iv)B herein during her period of occupation from the date of separation, 31 March 2022 until the date she vacates pursuant to paragraph 2(a) herein;
(ii)secondly, in payment of the mortgage registered in favour of V Ltd, mortgage number … on the Suburb C property;
(iii)thirdly, in payment to the Respondent Husband in the sum of $350,000; and
(iv)fourthly, the proceeds of sale then be divided in proportions of:
A.50% to the Husband; and
B.50% to the Wife and from the Wife’s share the following sums be deducted:
(i)$15,273.50 and paid to the Husband for her one-half share of the single expert reports from Y Company and Z Company;
(ii)$2,750 and paid to the Husband for her one-half share of the mediator’s fee;
(iii)$6,000 to be paid to the Husband as per the Orders made by Justice Carter on 25 August 2023 for his costs;
(iv)$9,000 to be paid namely $4,500 to Ms Deng and $4,500 to Mr Demarco; and
(v)arrears of mortgage accrued and being calculated as being the difference from the sum due on the mortgage on 31 March 2022 to the sum paid on the settlement of the sale of the Suburb C property.
(e)Pending the sale, and until the Wife vacates the Suburb C property subject to paragraph 2(a) herein, the Wife have the sole use and occupation of the Suburb C property, subject to her meeting all payments on the mortgage, rates and taxes, utilities and other apportionable outgoings as and when they fall due and she has the right to retain any income she earns from the Suburb C property.
(f)Neither party shall further encumber the Suburb C property without the consent, in writing, of the other party.
(g)The parties shall hold their interest in the Suburb C property subject to the terms of this Order.
(h)In the event the Wife fails to comply with paragraph 2(a) herein, the Husband be at liberty to provide the Wife seven (7) days’ written notice she has breached paragraph 2(a) herein and upon proof of that written Notice being provided to the Registrar of this Court then this Order be enforced by way of a warrant of possession of real estate pursuant to Rule 11.56 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and at the expiration of the seven (7) day period the Court issue a warrant of possession authorising an enforcement officer to enter the Suburb C property and provide possession of the property to the Husband for the purpose of the Husband facilitating the sale of the Suburb C property in accordance with paragraph 2 herein. The Husband be and is hereby further authorised under Section 106B of the Family Law Act 1975 as amended to sign all such documents and do all such things necessary to give effect to the sale of the Suburb C property and to disburse the funds as set out herein.
3.The Husband and the Wife, at the Husband’s cost and expense in relation to the preparation of the transfer documents, sign all such documents and do all things necessary to transfer to the Wife the shareholdings in the companies, D Pty Ltd and E Pty Ltd. As and from the date of the transfer, the Wife indemnify the Husband in relation to any and all unpaid liabilities of whatsoever nature and kind in relation to the companies being retained by her.
4.The Husband retain, for his sole use and benefit and to the exclusion of the Wife, the following:
(a)F Pty Ltd.
(b)G Pty Ltd.
(c)The Hadleigh Family Trust.
(d)Hadleigh Holding Pty Ltd.
(e)H Group Pty Ltd.
(f)H1 Pty Ltd.
(g)H2 Pty Ltd.
(h)His legal and equitable interest in J Street, Suburb K, Victoria.
(i)Any money standing in any bank accounts in his name.
(j)Any furniture and chattels in his possession and/or control.
(k)Any shares and/or investments in his sole name.
(l)His part property payment of $14,000.
(m)His superannuation interests.
5.In relation to any property being retained by the Husband, he shall indemnify the Wife in relation to all unpaid liabilities in relation to the same.
6.The Wife shall retain, for her sole use and benefit and to the exclusion of the Husband, the following:
(a)D Pty Ltd.
(b)E Pty Ltd.
(c)Hadleigh Family Group Holdings Pty Ltd.
(d)Any other business that she has incorporated or has an interest in and acquired by her post 30 March 2022.
(e)Any furniture and chattels in her possession and/or control, save for the following which the Wife shall return and make available to the Husband’s nominated agent in Queensland to collect from the Suburb C property between the hours of 9:00 a.m. to 5:00 p.m. within seven (7) days of the date of these Orders:
(i)the Husband’s clock;
(ii)the Husband’s collectables;
(iii)the Husband’s original family photographs all taken prior to the parties’ relationship of December 2005; and
(iv)the Husband’s sports equipment.
(f)Any shares in her name.
(g)The joint L Finance portfolio investment, which the Husband is to sign any documents to transfer his interest to the Wife, at her expense, if any.
(h)The part property settlement sums she has received in the sum of no less than $131,710.44.
(i)Her superannuation interests.
7.The Wife be restrained by herself, servants, and agents from in any way contacting any clients, contractors, employees and/or associates of the companies being retained by the Husband and referred to in paragraph 4 herein.
8.Pursuant to Section 106A of the Family Law Act 1975 as amended, if either party fails to execute a document, deed or instrument in the name of the person to whom the direction was given and/or do all such acts and things necessary to give validity and/or operation to the document, deed or instrument to give effect to these Orders within fourteen (14) days of the request to do so, then a Deputy Registrar or a Judicial Registrar of the Federal Circuit and Family Court of Australia is appointed to so sign that document, deed or instrument in their stead. If this paragraph is made operational, then the defaulting party shall pay the other party’s costs and expenses of and incidental for preparation of the document, deed or instrument for its execution calculated by the solicitors for the non‑defaulting party and for the proposes of this Order an affidavit filed on the Court Portal with a requesting letter addressed to the Court settling out the defaulting parties failure to comply with the Orders shall be sufficient evidence of neglect or default.
9.Unless otherwise specified in these Orders, and save for the purposes of enforcing any monies due under these or any subsequent Orders:
(a)Each party be solely entitled, to the exclusion of the other, to all other property (including choses in action) in the possession of that party as at the date of these Orders, save for the items the Wife is to provide to the Husband as per paragraph 6(f) of these Orders and that the Husband shall transfer to the Wife, at the Wife’s cost and expense, the ownership and registration of the parties’ dog.
(b)Each party forego any claims that they may have to any superannuation benefits belonging to or earned by the other party.
(c)Any joint accounts to be closed and the proceeds, if any, shall be divided equally between the parties.
(d)Insurance policies remain the sole property of the owner named thereon.
(e)Each party shall retain any benefits from their respective employer, including long service leave, annual leave and any other emolument.
(f)Each party be solely liable for, and indemnify the other against, any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
(g)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
10.The Initiating Application (Family Law) of the Wife filed on 24 June 2022, the Response to Initiating Application (Family Law) of the Husband filed on 20 July 2022, and the Further Amended Response to Initiating Application (Family Law) of the Husband filed on 1 February 2024 be otherwise dismissed.
11.All documents produced to the Court by Subpoena in this proceeding be either destroyed or returned to the persons who provided the said documents.
12.The Applicant pay the Respondent’s costs of and incidental to this proceeding on an indemnity basis.
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