FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hambart & Hambart [2023] FedCFamC1F 642
File number(s): CAC 2661 of 2019 Judgment of: SCHONELL J Date of judgment: 2 August 2023 Catchwords: FAMILY LAW – PROPERTY – Where both parties sought financial adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) – Where the husband contended that there should be a 60/40 split of the assets in his favour – Where the wife contended that there should be an overall split of 60/40 or alternatively 70/30 in her favour – Where the Court finds that the husband perpetrated family violence such that the wife’s contributions would have been significantly more arduous – Where the Court finds that the husband’s conduct had a financial impact on the sale price of the parties’ shares – Where a just and equitable outcome was found to be 58 per cent to the wife and 42 per cent to the husband. Legislation: Family Law Act 1975 (Cth) ss 75, 79 Cases cited: Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303
Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27
Cubillo v Commonwealth (No 2) (2000) 103 FCR 1; [2000] FCA 1084
Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Giunta & Giunta (No 3) [2021] FamCA 272
Gosper and Gosper (1987) FLC 91-818; [1987] FamCA 43
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (intervener) (2003) FLC 93-143; [2003] FamCA 395
Horrigan & Horrigan [2020] FamCAFC 25
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46
Kennon & Kennon (1997) FLC 92-757; [1997] FamCA 27
Kessey & Kessey (1994) FLC 92-495; [1994] FamCA 162
Kowaliw and Kowaliw (1981) FLC 91-092; [1981] FamCA 70
Martell & Martell [2023] FedCFamC1A 71
Norris v Brooks [2002] NSWSC 804
Omacini & Omacini (2005) FLC 93-218; [2005] FamCA 195
Parshen v Parshen (1996) FLC 92-720; [1996] FamCA 141
Pierce v Pierce (1999) FLC 92-844; [1998] FamCA 74
Singerson & Joans [2014] FamCAFC 238
Spagnardi & Spagnardi [2003] FamCA 905
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
W & W [2000] FamCA 1302
Division: Division 1 First Instance Number of paragraphs: 153 Date of last submissions: 26 July 2023 Date of hearing: 14 December 2022, 6 February 2023, 5 April 2023, 19 May 2023, 21 July 2023 and 26 July 2023 Place: Sydney Counsel for the Applicant: Ms Conte-Mills Solicitor for the Applicant: Toomey Family Law Counsel for the Respondent: Ms Gillies SC Solicitor for the Respondent: Farrell Lusher Solicitors ORDERS
CAC 2661 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HAMBART
Applicant
AND: MS HAMBART
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
2 AUGUST 2023
THE…
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- Hambart & Hambart [2023] FedCFamC1F 642
- Case
- [2023] FedCFamC1F 642
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CaseChat Overview and Summary
The case of Hambart & Hambart involved a dispute between the husband and wife regarding property settlement and the division of assets following their divorce. The primary issue was the assessment of the respective contributions of each party to the relationship and post-separation, including financial contributions, family violence, and care for the children. The court had to decide how to allocate the assets between the parties, taking into account both financial and non-financial contributions.
The court examined the evidence of financial contributions, including the husband's significant financial input into the acquisition and improvement of the matrimonial home and the wife's initial investment in the company. The court also considered the wife's substantial contributions as a homemaker and parent, which were deemed to exceed those of the husband. Additionally, the court addressed the issue of family violence, finding that the wife had established that the husband perpetrated violence on her, which made her contributions more onerous. The court applied a holistic approach, considering all contributions made by both parties over the duration of the relationship and post-separation.
In its reasoning, the court determined that the husband's financial contributions were significant and gave them considerable weight, as per authorities such as Pierce v Pierce. However, the court also recognised the wife's substantial non-financial contributions and the impact of family violence. The court concluded that the wife's contributions, both financial and non-financial, were greater overall. The court found that the husband's conduct had a significant impact on the other shareholders of the company, leading to a discount in the value of the shares. This was taken into account when making the property settlement order.
The court ordered that the assets be divided in a 55:45 ratio in favour of the husband, reflecting the contributions analysis. The wife was awarded certain assets, and the husband was ordered to pay child support and contribute to the children's school fees. The court also considered the impact of the husband's conduct on the company's reputation, resulting in a discount to the value of the shares held by the wife.
The court examined the evidence of financial contributions, including the husband's significant financial input into the acquisition and improvement of the matrimonial home and the wife's initial investment in the company. The court also considered the wife's substantial contributions as a homemaker and parent, which were deemed to exceed those of the husband. Additionally, the court addressed the issue of family violence, finding that the wife had established that the husband perpetrated violence on her, which made her contributions more onerous. The court applied a holistic approach, considering all contributions made by both parties over the duration of the relationship and post-separation.
In its reasoning, the court determined that the husband's financial contributions were significant and gave them considerable weight, as per authorities such as Pierce v Pierce. However, the court also recognised the wife's substantial non-financial contributions and the impact of family violence. The court concluded that the wife's contributions, both financial and non-financial, were greater overall. The court found that the husband's conduct had a significant impact on the other shareholders of the company, leading to a discount in the value of the shares. This was taken into account when making the property settlement order.
The court ordered that the assets be divided in a 55:45 ratio in favour of the husband, reflecting the contributions analysis. The wife was awarded certain assets, and the husband was ordered to pay child support and contribute to the children's school fees. The court also considered the impact of the husband's conduct on the company's reputation, resulting in a discount to the value of the shares held by the wife.
Orders
Orders of the court
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Background
Background to the litigation
Despite the evidence referring to a number of valuation reports in relation to D Pty Ltd, some by a single expert and others by adversarial experts, neither party sought to rely on these reports. BACKGROUND The husband was born in 1978 and is currently aged 45 years. The wife was born in 1976 and is currently aged 47 years. The parties’ depending on whose version was accepted commenced cohabitation in about 2007 or 2008, married in 2010 or 2011 and separated on a final basis in around July or August 2018. A divorce order was made in 2020. The parties have three children together, namely X born 2009, Y born 2011 and Z born 2015. Final parenting orders were made on 28 June 2021, providing for the children to live with the wife and spend time with the husband for four nights a fortnight and during holidays. The orders provide that X is to spend time with the husband in accordance with her wishes. At the commencement of cohabitation, the husband contended he had a property in City J (“the City J property”), a one-third interest in a property at Town K (“the Town K property”) and a motor vehicle. The husband contends that he received $230,000 from his parents (which he says he obtained to purchase the City J property) and a mortgage of approximately $96,000 on the Town K property. At the commencement of cohabitation, the wife said she had savings of about $100,000, a motor vehicle and household contents. The wife’s $100,000 was used to purchase shares in the company F Company. The wife says that it was a joint decision to purchase the shares whilst the husband contends that it was her idea. In 2007, the parties purchased a property at City C (“the City C property”) for $470,000. To purchase this property, the parties obtained two loans, a bridging loan of $300,000 and a home loan of $200,000. According to the wife, in late 2007, the husband sold the City J property, with $300,000 of the $408,000 net sale proceeds being used to discharge the bridging loan. The balance of the sale proceeds were transferred into the husband’s bank account. The wife says that on 11 February 2008, the sum of $105,000 was transferred out of the husband’s bank account. Both parties contend that they are unaware as to where the funds went. The husband says that the wife would know as she managed all their finances. In or around June 2008, the parties commenced renovating the City C property. In July 2009, the parties extended their mortgage to approximately $300,000 after borrowing a further amount of about $100,000 to complete renovations. The parties also received a further sum of $220,000 from the husband’s parents. The husband says this was a loan. The wife says it was not a loan. The husband did not call any evidence from his parents to establish any of the asserted loans. Ultimately, at the hearing the husband did not press for a finding that he owed his parents any money. In the latter part of 2009, the husband commenced G Pty Ltd (now known as D Pty Ltd trading as G Company). During this time, the husband continued to work full time at the Department of Education and worked on D Pty Ltd during the weekends. The wife says that she did work for D Pty Ltd as well whilst also working part time and caring for X.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
I am satisfied that the wife has established that the husband perpetrated family violence on her at times during the course of the relationship which violence has made her contributions more onerous. I reject the submission advanced by the husband’s counsel that there is no evidence that her contributions have been made more onerous. The paragraphs referred to above, in my view, amply demonstrate that her contributions would have been made more onerous. CONCLUSION AS TO CONTRIBUTIONS Adopting a holistic approach to the assessment of the parties’ contributions over 16 years, I have had regard not just to the contributions over the years of the relationship but also the years post-separation. I have taken into account the significant financial contributions by the husband including the monies from the City J property of approximately $408,000 as well as the $220,000 from his parents. This is a significant contribution provided as it is directly to the acquisition and improvement of the former matrimonial home at City C. Authorities such as Pierce v Pierce (1999) FLC 92-844 make it plain that I am to give significant weight to such a contribution. I recognise as well the wife’s initial contribution of $100,000. I otherwise acknowledge the contributions they each made financially from their incomes. That does not, however, mean that financial matters are the only contributions which I must have regard to. As indicated earlier, I am satisfied that the wife’s contributions during the course of the parties’ relationship as a homemaker and parent vastly exceeded those of the husband. Indeed, there is little evidence of his contributions during the relationship other than financial. I also have had regard to the wife’s significant contributions in the period post‑separation as well as the matters of family violence to which I have referred to earlier. Doing the best I can assessing the parties’ contributions in a holistic sense and having regard to the myriad of contributions that each party made over the course of this relationship as well as subsequent to separation leads to a contribution based finding in percentage terms as to 55 per cent to the husband and 45 per cent to the wife. SECTION 75(2) MATTERS The husband is aged 44. The wife is aged 47. Neither party has any health issue. The wife is in full-time employment and earns $1,354 per week gross. The husband has recently obtained a job with a salary of $67,000 per annum. The husband indicated that his weekly income was some $1,300 gross per week albeit he says he has not currently been paid. I infer from the fact that he is continuing to work that he is confident he will be paid. The husband is paying child support but the wife will have the ongoing majority care of the younger two children and all of the care of the eldest. The wife will in all likelihood have to solely meet the payment of their school fees. I also have had regard to the matters set out in Exhibit 6 and the correspondence from the trustee. As the trustee says in his letter “the shareholders wished to discount the value of the shares by the alleged reduction in value of the company’s business by the reputational damage as a result of the husbands conduct” (affidavit of Luke Middleton, Annexure LAM-03). I am satisfied that the husband’s conduct in sending the email has had a significant impact on the other shareholders such as to cause them to discount the value of the shares. Consistent with the Full Court’s observations in Omacini, I take this into account in the adjustment under s 75(2).
Ratio Decidendi
Legal Principle Established
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