Halsell & Halsell
[2024] FedCFamC2F 1288
•19 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Halsell & Halsell [2024] FedCFamC2F 1288
File number(s): PAC 2348 of 2023 Judgment of: JUDGE OBRADOVIC Date of judgment: 19 September 2024 Catchwords: FAMILY LAW – PROPERTY – Modest asset pool – 40 years of cohabitation – Broad-brush approach – Overall contributions equal – Future needs adjustment Legislation: Family Law Act 1975 (Cth) ss 75, 79 Cases cited: Bar-Mordecai v Hillston [2004] NSWCA 65
Bevan & Bevan [2013] FamCAFC 116
Blandford & Esmore [2022] FedCFamC1A 67
Chapman & Chapman [2014] FamCAFC 91
Dickons & Dickons [2012] FamCAFC 154
Heyes v Marquis [2008] NSWCA 10
Russell & Russell [1999] FamCA 1875
Scott & Danton [2014] FamCAFC 203
Sinclair & Whittaker [2013] FamCAFC 129
Stanford & Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120
Division: Division 2 Family Law Number of paragraphs: 149 Date of hearing: 6-7 & 14 June 2024 Place: Parramatta Counsel for the Applicant: Ms Judge Solicitor for the Applicant: Simon Diab & Associates Counsel for the Respondent: Mr Givney Solicitor for the Respondent: NSW Family Law Specialists ORDERS
PAC 2348 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HALSELL
Applicant
AND: MS HALSELL
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
19 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.Within 21 days of these Orders, the respondent wife (‘wife’) shall do all acts and things necessary to effect the sale of the property known as B Street, Suburb D in the State of New South Wales being the whole of the land comprised in Folio Identifier … (‘Suburb D property’) as follows:
(a)The Suburb D property shall be listed for sale by way of private treaty with such real estate agent and solicitor/conveyancer as agreed to between the parties, and failing agreement:
(i)With an agent nominated by the President of the Real Institute of NSW; and
(ii)A solicitor/conveyancer nominated by the President of the NSW Law Society.
(b)In the event that the Suburb D property is not sold by private treaty, pursuant to Order 1(a) above, within 3 months of the date of these Orders, then the wife shall do all acts and things necessary to effect the sale of the Suburb D property by auction within a further period of 6 weeks.
(c)In the event the Suburb D property does not sell by auction, pursuant to Order 1(b) above, then the wife shall continue to list the property for auction every 6 weeks, with a reserve price of 5% less than that which was set at auction previously, until such time as the property sells.
(d)The sale price of the Suburb D property shall be not less than $900,000 unless agreed to by the parties.
(e)The wife shall co-operate in every reasonable way with the real estate agent in relation to the marketing of the Suburb D property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent, and ensuring that the Suburb D property is clean, neat and in good order at the time of inspection by any prospective buyer.
(f)Upon agreement being reached for the sale of the Suburb D property, the wife shall execute the contracts of sale and all other documents necessary to complete the sale of the Suburb D property, including all transfer documentation, forthwith upon its submission to her by the agent or their solicitor.
(g)The contract for sale shall provide for completion within 42 days after the date of the contract unless the parties to these proceedings agree otherwise.
(h)The proceeds of sale of the Suburb D property shall be paid in the following manner and priority:
(i)Payment of any outstanding Land Tax, Council rates, water rates, and other levies and outgoings on the Suburb D property;
(ii)Payment of the real estate agent’s fees and commission on the sale and legal costs associated with the sale; and
(iii)The balance:
A.As to 52% to the husband; and
B.As to 48% to the wife.
2.Within 42 days of these Orders the wife pay to the husband the sum of $42,475.45.
3.Except as otherwise provided in these Orders, the husband and wife are declared the sole owner at law and in equity of any other assets, money, chattels or superannuation interest in their name or possession.
4.Except as otherwise provided in these Orders, the husband and wife be solely liable to the exclusion of the other for any debt, past or future, standing in their respective names.
5.The parties shall do all acts and things and execute all necessary documents or instruments and shall give all consents necessary to give effect to these Orders.
6.In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, the Registrar of the Court be appointed pursuant to s.106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
These are the Reasons for Judgment in respect of the competing property adjustment applications between the applicant, Mr Halsell (‘husband’), and the respondent, Ms Halsell (‘wife’).
The parties were married in 1982. They have four children together, all of whom are adults.
The parties were, for the most part, in agreement as to the value asset pool, including the value of the property at B Street, Suburb D (‘Suburb D Property’). However, the parties were in significant disagreement about many relevant matters, including dates of purchase of properties, what businesses the husband ran and what property those businesses owned, the income received, and proceeds of sale and use of that money. The Court has done its best to resolve these matters as far as they are relevant to the issues requiring judicial determination.
DOCUMENTS RELIED UPON
The husband sought orders for a property adjustment whereby the husband receive 60% and the wife 40% of the parties’ net pool of assets. To give effect to this, the husband sought orders for the sale of the Suburb D Property with the proceeds of sale to be divided 60/40 after payment of rates, commissions, and legal fees, and for the wife to pay the husband an amount equivalent to 60% of the remaining net pool of assets.
In her Response to Final Orders, the wife sought an order for no adjustment as to property, and for the husband to pay the wife’s costs of and incidental to the application. However, the wife sought in her Outline of Case Document for a property adjustment whereby the wife receive 72.5% of the asset pool, and the husband receive 27.5%.
The husband relied on the following documents:
(a)Case Outline Document filed 30 May 2024;
(b)Initiating Application filed 11 May 2023;
(c)Affidavit of the husband filed 27 May 2024; and
(d)Financial Statement filed 23 May 2024.
The wife relied on the following documents:
(a)Outline of Case Document sealed 4 June 2024;
(b)Response to Final Orders filed 7 July 2023;
(c)Affidavit of the wife filed 3 May 2024;
(d)Financial Statement filed 3 May 2024; and
(e)Affidavit of Mr C filed 9 May 2024.
The exhibits relied on by the parties were:
·Exhibit 1 being Exhibit MRH of the Affidavit of the applicant husband filed 27 May 2024.
·Exhibit 2 being the Affidavit of the husband filed 11 May 2023.
·Exhibit 3 being bank statement for account ending in #...49 in the name of the wife for the period July 2000 to November 2000.
·Exhibit 4 being the annexures to the Affidavit of the wife’s filed 3 May 2024.
·Exhibit 5 being account ending in #...39 Westpac statement due February 2003 and second statement due June 2003.
·Exhibit 6 being a bundle of order forms identified by the wife.
·Exhibit 7 being: Electricity account in the name of the husband due date September 2015; electricity account in the name of the husband due date March 2018; gas account in the name of the husband due date May 2018; electricity account in the name of the wife due date October 2018; gas account in the name of the wife due date November 2018; electricity account in the name of the wife due date December 2018; and electricity account in the name of the wife due date March 2019.
·Exhibit 8 being E Bank Investment for $117,207.58 return of 31 days in the name of the husband.
·Exhibit 9 being letter from F Council to the husband and the wife, re building application for 1 G Street, Suburb H dated mid-1998
·Exhibit 10 being letter form J Law Firm to the parties dated late 1999 attaching loan agreement and mortgage.
·Exhibit 11 being letter from J Law Firm to Mr & Ms Halsell dated late 1999 regarding refinance of K Bank in relation to 2 G Street.
·Exhibit 12 being document titled Confirmation of Non-Repayable Gift dated 1999.
·Exhibit 13 being Commonwealth Bank List of Transactions marked as page 42/176.
·Exhibit 14 being the wife’s Tender Bundle including index starting at page 179 of wife’s Court Book (being pages 179 to 527 of the Court Book) and excluding the husband’s overseas valuations at page 338, and excluding pages 404, 405, and 406.
·Exhibit 15 being letter from NSW Family Law Specialists to Simon Diab & Associates dated 5 June 2024.
·Exhibit 16 being the husband’s Tender Bundle comprising of 27 pages including cover sheet and index.
LEGAL PRINCIPLES
The overall approach to the determination of an application for property adjustment orders pursuant to s.79 of the Family Law Act 1975 (Cth) was set out by the High Court in Stanford & Stanford.[1] Such approach was subsequently considered by the Full Court of the then Family Court in Bevan & Bevan,[2] Chapman & Chapman,[3] and Scott & Danton.[4]
[1] [2012] HCA 52 (‘Stanford’).
[2] [2013] FamCAFC 116 (‘Bevan’).
[3] [2014] FamCAFC 91 (‘Chapman’).
[4] [2014] FamCAFC 203 (‘Scott’).
In many matters which come before this Court, the requirement of whether it is just and equitable to make any orders is readily satisfied by the fact of the parties’ separation; as there is not, and will not thereafter, be the joint use of property by the parties. It is so in these proceedings.
Once the issue of whether it is just and equitable to make any order is resolved, the Court is to then consider the contributions made by the parties as defined in ss.79(4)(a) to (c), the matters set out in ss.79(4)(d) to (g) and, in particular, the subjective considerations as to the parties by having regard to the provisions of s.75(2) in so far as they are relevant.
The Court is then to consider the justice and equity of the actual orders to be made, in the context of the Court’s obligations to make appropriate orders as provided for in s.79(1) of the Act.[5]
[5] Russell & Russell [1999] FamCA 1875; Teal & Teal [2010] FamCAFC 120.
It is necessary to make a holistic assessment of the relevant matters and the parties’ contributions, and not to undertake an accounting of scoring exercise.[6] ‘The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship’.[7]
[6] Blandford & Esmore [2022] FedCFamC1A 67 (Aldridge, Harper & Riethmuller JJ) at [14].
[7] Dickons & Dickons [2012] FamCAFC 154 at [24].
Statements to a government authority, apparently inconsistent with a party’s case, may complicate the resolution of the issue of the nature of the relationship, but they are not determinative. They are taken into account as part of all the circumstances.[8]
[8] Heyes v Marquis [2008] NSWCA 10 at [99]; citing Bar-Mordecai v Hillston [2004] NSWCA 65 at [118]; cited with approval in Sinclair & Whittaker [2013] FamCAFC 129 at [66].
The just and equitable requirement is ‘one permeating the entire process’.[9]
FINDINGS
[9] Bevan at [86].
Background
The husband was born in 1946 and is currently 78 years old.
The wife was born in 1958 and is currently 66 years old.
The husband arrived in Australia from Country P in 1966.
In 1973, the husband and his brother purchased a property at M Street, Suburb N (‘Suburb N property’) for $17,000.
Between 1981 and 1984, the husband owned and operated a business in Suburb O, from which he received an income.
In 1982, the parties married in Country P and the wife migrated to Australia.
In about mid-late 1982, the parties commenced living together in the Suburb N property.
In 1983, the parties’ first child Ms L was born.
In 1984, the parties’ second child Mr Q was born.
In 1985, the husband purchased his brother’s share in the Suburb N property for $26,000, which was to be payable on the sale of the Suburb N property.
The parties moved to Adelaide in or around 1986.
In 1987, the Suburb N property was sold for $76,000.
Also in about 1987, the husband together with a relative, purchased a business at S Street, Suburb T, South Australia.
In 1987, the parties’ third child Ms U was born.
In 1990, the parties’ fourth child Mr C was born.
In or around 1990, the husband sold the business in South Australia.
After returning to Sydney from Adelaide in about 1990, the husband, in partnership with a family member, commenced operating a business in Town W, New South Wales.
When the parties returned to Sydney from Adelaide, they lived in a rental property in Town Y.
In or around 1994, the business in Town W was sold.
In 1997, the parties purchased two properties at Suburb H, namely 1 G Street purchased in the wife’s name for $140,250 (‘1 G Street’), and 2 G Street, Suburb H purchased in the husband’s name for $140,250 (‘2 G Street’).
In 1998, the husband purchased a business at V Street, Town Z, New South Wales (‘Town Z property’) though, AA Pty Ltd.
In 1999, the 2 G Street property was sold for $175,000.
In 1999, the K Bank Home Loan over 1 G Street was refinanced.
In 2000, the husband purchased a property at X Street, Town BB (‘Town BB property’).
The husband’s mother died in 2000 and the husband inherited two blocks of land in Country P.
In or around 2000 the wife commenced working for ‘CC Company’.
In 2002, the husband, together with two relatives, incorporated a company DD Pty Ltd. In or around 2003, DD Pty Ltd purchased a property at EE Street, Suburb FF (‘Suburb FF property’) for $1,400,000.
During the 2000s, DD Pty Ltd developed the Suburb FF property (‘Suburb FF Project’). The development failed and receivers were appointed.
In or around 2009, the parties’ daughter Ms L opened a business.
In 2011, the husband was declared bankrupt.
In or around 2012, Ms L’s business was sold.
In or around 2012, the husband was admitted to hospital.
In early 2015, 1 G Street was sold for $850,000, with net proceeds of $540,000.
In mid-2015, the Suburb D property was purchased for $540,000 using the proceeds of sale from 1 G Street.
In 2017, the wife built a granny flat on the Suburb D property for around $117,488, by borrowing, by way of refinance, $142,000 against the Suburb D property.
In early 2022, the wife called the Police to the Suburb D property after the husband entered the property through a locked door.
In early 2022 the husband had moved out of the Suburb D property.
In mid-2022, an interim apprehended domestic violence order was ordered against the husband for the protection of the wife, and a final order for 12 months was made in late 2022.
In early 2023, the home loan for the Suburb D property was paid off.
Properties, Businesses and Income
Suburb N Property
As noted earlier, the husband and his brother purchased the Suburb N property for $17,000 in 1973. They paid a deposit, and financed the balance by obtaining a loan. The loan was paid off by about 1979, although the mortgage over the property was not discharged until early 1985.
Again, as noted earlier, in early 1985, the husband purchased his brother’s share in the Suburb N property for $26,000, to be paid upon the sale of the property.
Until the parties’ marriage in 1982 and subsequent move to Australia by the wife, the husband lived with his brother in the Suburb N property. After the wife moved to Australia, the husband’s brother moved out of the Suburb N property and the wife lived with the husband (and their children after and as they were born) in that property until the parties’ move to Adelaide in 1986.
The Suburb N property was sold for $76,000 in 1987. At the time of its sale, the husband paid his brother $26,000 and retained the balance, which was used for his business in South Australia and to set up the parties’ home in Adelaide.
The property and its use by the parties was a significant initial contribution by the husband.
Adelaide Property
The parties’ evidence about the purchase of property in South Australia is confusing. The Court also notes the paragraphs [89] to [93] below.
It is entirely unclear on the evidence, but it appears that the parties purchased a home in which they lived during the time they were in Adelaide:
(a)The wife says in her evidence in chief that the parties purchased their first property in Adelaide ‘and lived there until 1993’. She does not provide any further information about the address, purchase price, how the purchase price was financed and similar.
(b)The wife then says that in 1994, the parties decided to sell their property in Adelaide for approximately $151,000 and that the net proceeds were approximately $100,000.
(c)The husband’s evidence in chief is entirely silent about the purchase of a home in Adelaide.
(d)During cross-examination, the husband agreed that a property in Adelaide was sold before the purchase of two properties in Suburb H and, when asked whether the property sold for $100,000, the husband denied the proposition and stated that he made $100,000 from the business he was working in and that from the house ‘I did not make any money.’
G Street Properties
In 1997, the parties purchased two properties at Suburb H, namely 1 G Street purchased in the wife’s name for $140,250, and 2 G Street purchased in the husband’s name for $140,250.
Each of these two properties were mortgaged.
The wife was not in paid employment at the time of the purchase of these two properties, or at least, not in paid employment which would have enabled her to purchase the property in her name and/or to obtain a loan in her name, without the husband’s assistance, business, and income. The wife conceded in cross-examination that she was able to get the home loan because her name was in a business and that they obtained a loan ‘through the business’.
As part of the husband’s asset protection strategy, the parties agreed that 1 G Street was to be registered in the wife’s sole name. The husband had been advised that the family home should be shielded and protected because he was in high-risk industries, advice which he took. The wife’s input into the decision to purchase these properties was marginal, the husband made most, if not all, of the financial decisions relating to this purchase, without significant recourse to the wife.
In around 1998, the parties demolished the existing house at 1 G Street and built their new family home, where they resided together with their children. They moved into the newly built home in about 2000.
The husband was primarily responsible for the demolition and the build, but the wife also had some input. While he may not have done all of the work personally, and while he engaged a builder, the husband’s knowledge and experience in the building industry and his trade and business connections were utilised to have the work approved, and to carry out the work. The house which was built consisted of multiple bedrooms and bathrooms, a lounge and dining area, a kitchen as well as a rumpus room and a double garage.
The parties rented out 2 G Street.
It was from the income derived by the husband through his business endeavours, including the rental income, that the mortgages over the two properties were paid.
In 1999, the 2 G Street property was sold for $175,000. It is not clear on the evidence what the net proceeds of sale were, but it appears that whatever was realised, was then invested by the husband in his business. The husband did not tell the wife what he did with the money.
In 1999, the K Bank Home Loan over 1 G Street was refinanced. As of late 1999, the loan amount was $304,000 and the outstanding balance was $109,399.73.
In late 2000, $50,000 was debited from the K Bank Home Loan account. There is dispute between the parties as to how this money was utilised, but it was either used by them for the business or to finish the house. There was an additional $20,000 which was similarly withdrawn and utilised.
At some stage, the parties’ daughter Ms L placed a caveat over 1 G Street. The wife issued a lapsing notice, went to court, and the caveat was ultimately discharged.
In early 2015, 1 G Street was sold for $850,000, with net proceeds of $540,000.
After the sale of 1 G Street, the wife lived with the parties’ daughter Ms U, while the husband lived with his brother. This was the situation until the purchase of the Suburb D property.
Suburb D Property
In mid-2015, the Suburb D property was purchased for $540,000 using the proceeds of sale from 1 G Street. It was purchased outright in the wife’s name.
A short time after moving into the Suburb D property, the husband together with the parties’ son Mr Q, renovated the bathroom and hired a painter to paint the house. The cost of these works was paid from the 1 G Street proceeds of sale.
The parties both lived in the Suburb D property until March 2022, when the husband moved out. While they both lived in the property, the husband made some contributions towards the cost of the utilities, the parties by and large each purchased their own food, and otherwise did not share in household duties – they each did their own.
In or around 2016, the parties’ child Mr C moved into the Suburb D property, where he lived for one or two years.
In 2017, the wife built a granny flat on the Suburb D property for around $117,488. The wife borrowed around $142,000 by refinancing the Suburb D property.
After its completion, the granny flat has been rented out. The wife receives rental income which was used to pay the mortgage, noting the mortgage was paid off by early 2023. The rental income is approximately $340-$350 per week.
The wife has continued living in the Suburb D property. Since March 2022, she has been solely responsible for all of the maintenance and upkeep of the property, as well as meeting all of the costs of the property since that time.
Country P Properties
The husband inherited two blocks of land in Country P in 2000. These properties have not yet been transferred into the husband’s name. The asserted total value of these properties is less than USD6,500. At most, the husband has a beneficial interest in this property.
The husband asserts that the wife also owns property in Country P, a unit which she purchased in about 1997. The wife denies owning such property. She says however, that she will inherit a unit. The asserted value of this property is between USD20,000 and USD30,000. At most, the wife has a beneficial interest in this property.
At the time of final hearing, there was no evidence as to the relevant conversion rate of USD to AUD.
The wife has an overseas bank account in Country P. The balance of that account is a few hundred dollars at best.
Businesses and Income
Suburb O Business
At the commencement of the parties’ cohabitation, the husband was operating a business at Suburb O. This was subject to a lease and the husband stopped operating the business when the lease ended.
The husband earnt an income from this business, which was utilised for the benefit of the parties.
Adelaide Business
As noted earlier, the parties’ evidence about the purchase of property in South Australia is confusing.
The husband says that he used the remaining proceeds from the sale of the Suburb N property to buy a business in South Australia with a relative. The wife says that the husband’s friend lent them $20,000 to start the business in Adelaide and that the husband went into business with a relative. The husband says he sold the business to his relative for $120,000 and that the parties then moved back to Sydney. The wife claimed that after 1993 the husband and a relative sold the business, and his share of the sale was approximately $118,000 which remained in a term deposit.
What is not in dispute is that the husband purchased a business with a family member in Adelaide, and that the business was sold later for about $120,000.
The husband derived an income from the business during the time the parties lived in Adelaide and from such income he supported the family.
An amount of $117,207.58 was invested in a term deposit in the husband’s name for 31 days in 1993.
Town W Business
After returning to Sydney from Adelaide, the husband, in partnership with a family member, commenced operating a business in Town W, New South Wales. There was some evidence by the wife that the husband also later purchased a business at Town R, which the husband denies.
It appears that the business was purchased in about 1993 and that the husband invested $100,000 into the business. The husband was involved in the day-to-day operations of the business.
The husband renovated the business and later sold it.
In or around 1994, the business in Town W was sold and the husband received about $100,000 from the sale.
Town BB Business
As noted earlier, in 2000, the husband purchased the Town BB property.
This property was sold in about 2004, after the husband built it and the sale proceeds were used towards financing the Suburb FF Project.
Town Z Business
By 1998, the husband was director of a company AA Pty Ltd, the husband and wife together owned shares in this business.
In 1998, the husband purchased the Town Z property through AA Pty Ltd for $220,000. The husband used the $100,000 from the sale of the business in Town W towards the purchase of the Town Z property.
The husband demolished the house on the property and built and renovated a shop and subdivided the property.
The Town Z property was subdivided into three Lots in or around 2002.
In 2003, AA Pty Ltd sold Lot 2 of the Town Z property for $600,000.
In 2006, AA Pty Ltd sold Lot 1 of the Town Z property for $4,730,000. It is the husband’s evidence that the proceeds of sale of Lot 1 were used to partly finance the purchase of the Suburb FF Property.
Lot 3 of Town Z was sold under Mortgagee Power of Sale in 2009.
Suburb FF Project
In 2002, the husband, together with two relatives, incorporated D Pty Ltd. In or around 2003, D Pty Ltd purchased the Suburb FF property for $1,400,000.
During the 2000s, D Pty Ltd was involved in the Suburb FF Project. The business ultimately failed, and receivers were appointed.
Ms L’s Business
In respect of the Ms L’s business, the wife stated that both her and Ms L were initially on the lease, that she later bought out Ms L’s share, and that the business was purchased for the husband’s benefit. The husband says he worked in the business without pay, and that there was a dispute between Ms L and the wife about the business. During cross-examination, the husband stated that the business belonged to their daughter and ‘not for me not for her’, that he used to work in it seven days from 6:30 till 9:30 and cleaned on Tuesdays, that he saw that the wife worked in the business from 9 o’clock and finished work before 10, and that the other children would come to the business to visit.
The business was ultimately sold at a loss.
Husband’s Income
Until his bankruptcy in 2011, the husband earnt an income through the various businesses he was involved in, as outlined above. While some of the business income was used to invest in other businesses, and while the husband did not involve the wife in his income and his business dealings, he was the sole breadwinner and financial provider for the family for many years.
After his bankruptcy, the husband was in receipt of social security benefits, and such income was in part used for the payment of some of the expenses associated with the 1 G Street property and later the Suburb D property.
The husband was also involved in the running of Ms L’s business.
At the time of final hearing, the husband is in receipt of the aged pension of $500 per week.
Wife’s Income
The wife started working for ‘CC Company’ in or around 2000. This was a small business.
Between 2009 and 2012, the wife worked in Ms L’s business, from which she derived an income. The parties also benefited from the business in other ways, such as for example, the provision of family meals.
Between 2013 and 2014, the wife worked as a labourer.
Between 2015 until 2018, the wife worked in hospitality.
In or around mid-2018, the wife worked full-time in hospitality. Also during 2018, the wife said she applied for Newstart Allowance for a period.
In 2019, the wife commenced work as a relief worker.
At the time of hearing, the wife was working as a supervisor with a weekly income of $1,355.
DETERMINATION
Asset Pool
The parties’ assets are modest.
While each of the parties has an interest in properties in Country P, the value of those properties is not known, but the value of the wife’s interest is likely higher than that of the husband. The wife’s bank account in Country P is negligible. These assets are excluded from the pool for the purposes of any adjustment order as their values are not known, but each party will retain whatever interest they have in such properties.
As such, the Court finds that the pool consists of the following:
Ownership Description Value Husband Bank account $100 Husband Motor Vehicle 1 $325 Wife Suburb D property $900,000 Wife Various bank accounts $45,632 Wife Motor Vehicle 2 $13,525 Wife Super Fund 1 $22,918.87 Total: $982,500.87 Contributions
At the start of the parties’ relationship, the applicant was a half-share owner of the Suburb N property, he owned his own motor vehicle, and he had been working in the building industry and earning an income.
At the start of the parties’ relationship, the wife did not own any significant assets, and she was not in paid employment for a period of some years.
When they first commenced living together in Sydney, the parties lived in the Suburb N property, which was unencumbered and which the husband’s brother was half owner in, albeit the parties had the full use and enjoyment of.
While living in Adelaide, the wife was not in paid employment but rather a full-time homemaker and parent. The husband continued to earn an income and supported the family. The parties lived in a property which was purchased and later sold.
When the parties returned to Sydney from Adelaide, they lived in a rental property in Town Y. The wife conceded in her oral evidence that when they returned to Sydney the husband was giving her money and was contributing, but that she was receiving a family benefit for the children.
The purchase of the G Street properties was possible due to the husband’s income earning capacity. It was possible for the parties to build their family home at 1 G Street because of the husband’s income earning capacity, his knowledge and experience in the industry, and his personal endeavours in the actual build. The wife’s contributions to the building of the parties’ home at 1 G Street were significantly lesser than those of the husband.
The value of 1 G Street significantly increased over the years, although there is no evidence as to the increase in value as a direct result of the building of the parties’ home. However, the value of the property at the time of its sale was such that it resulted in the parties being able to purchase the Suburb D property outright.
The wife, on her income, would not have been able to purchase any property at any time. However, had the wife not been busy with the parties’ four children, raising the family and looking after the home, she too no doubt would have been able to go out and earn an income.
After the husband’s bankruptcy, the wife has shown herself to be particularly frugal, ensuring that her earnings were well managed and used to pay off the loan taken out to build the portable home. There is, however, no evidence as to any increase in value of the property as a direct result of the portable home. What the portable home has provided though, is a separate income stream for the wife, which she has not shared with the husband, except indirectly in so far it was used to pay off the loan.
The parties cohabited for a period of over 40 years. While the nature of their relationship changed at various times during those 40 years, and while their contributions differed, it is not necessary for the purposes of the Court’s determination to take anything but a broad-brush approach. The parties’ evidence was at times confusing and contradictory. The wife was reluctant to give credit to the husband for his contributions over the years, including importantly at the commencement of the parties’ relationship.
Much effort was spent by each of the parties after the proceedings were commenced to ascertain the other’s assets and to ensure that there was full and frank disclosure. The wife’s application as articulated until shortly before the start of the hearing was not sustainable.
There is no evidence that either of the parties wasted money or that they did not do their best for the welfare of the family.
The parties each worked hard. They built a home together and they raised their children together. The division of labour in their household was such that the husband was the main breadwinner while the wife was the main homemaker and parent.
The wife has been in paid income since the husband became bankrupt. The wife has contributed to the Suburb D property by building the portable home and ensuring it was paid off through the income that it earnt and through her financial management.
Overall, the contributions are assessed as equal.
The husband is 77 years old, and the wife is 66 years old. Old age and a body battered by years of hard work ail them both.
The husband does not have any income earning capacity.
The wife has savings and continues to work. The wife has superannuation which will continue to accumulate as long as she keeps working.
In respect of future needs, a 2% adjustment will be made in the husband’s favour.
Therefore, the overall adjustment will be 52% to the husband and 48% to the wife.
The husband will receive $510,900.45 made up as follows:
Ownership Description Value Husband Bank account $100 Husband Motor Vehicle 1 $325 Wife Various bank accounts $42,475.45 Wife Suburb D property $468,000 Total: $510,900.45
The wife will receive $471,600.42 made up as follows:
Ownership Description Value Wife Suburb D property $432,000 Wife Various bank accounts $3,156.55 Wife Motor Vehicle 2 $13,525 Wife Super Fund 1 $22,918.87 Total: $471,600.42
The Suburb D property will be sold, and the sale proceeds are to be divided such that the above split is achieved.
In all of the circumstances, such orders are just and equitable.
The Court so orders.
I certify that the preceding one hundred and forty-nine (149) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 19 September 2024
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