Hambart & Hambart
[2023] FedCFamC1F 642
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
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
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 COURT ORDERS THAT:
1.Within three months of the date of these orders:
(a)The applicant husband (“the husband”) do all acts and things and sign all such documents as may be required to transfer to the respondent wife (“the wife”) all his right title and interest in the real property situated and known as B Street, City C, being the whole of the land more particularly described in the Certificate of Title as Lot … Deposited Plan … (“the City C property”).
(b)The wife will discharge any mortgage secured over the City C property and refinance the associated home loan into her sole name.
(c)In relation to the transfer and discharge referred to in Orders 1(a) and 1(b) above:
(i)Each party will pay their own conveyancing/legal costs and PEXA service fees relation to the transfer and discharge;
(ii)The wife will pay the transfer lodgement fee for the transfer; and
(iii)The wife will pay all discharge fees.
2.Pending the transfer of the property pursuant to Order 1, the wife be responsible for payment of all rates, taxes and outgoings with respect to the City C property as and when they fall due and indemnify the husband in relation thereto.
3.Pending the transfer as provided in Order 1, the husband and wife are restrained from further encumbering the City C property save for the purposes of the wife organising refinance for the purposes of compliance with Order 1(b) and the husband is to do all things to facilitate that process, if required.
4.The husband is restrained by injunction from declaring any distribution in the wife’s favour from the Hambart Family Trust for any past, current or future financial year, except for the distribution made pursuant to the orders of the Court made on 14 December 2022.
5.The husband shall forthwith do all acts and things and sign all documents necessary such as to remove the wife as a borrower or guarantor or mortgagor for any loan obtained in relation to any assets of the Hambart Family Trust.
6.The husband shall indemnify the wife and keep the wife indemnified in relation to all liabilities of D Pty Ltd or the Hambart Family Trust including any liability for which the wife may have personally guaranteed.
7.From the proceeds of sale of the shares in D Pty Ltd which are to be held in the trust account of Farrell Lusher Solicitors, the parties are to do all acts and things and sign all documents necessary to:
(a)Retain in the trust account of the said solicitors the sum of $300,000 to meet the capital gains tax payable by the husband with respect to the sale of the shares;
(b)Pay the balance of the sale proceeds as to 58 per cent to the wife less the sum of $155,771.60 which is to be paid to the husband; and
(c)Pay the balance to the husband.
8.That simultaneously with the husband’s compliance with Order 5, the husband and wife forthwith do all things and sign all documents necessary for:
(a)The wife to resign as a general beneficiary and member of an appointed class of the Hambart Family Trust;
(b)The wife to assign to the husband all of her right, title and interest, including any loan accounts and/or any sum due to her by the Hambart Family Trust;
(c)The wife to forgo any right or claim she may have in respect of the Hambart Family Trust whether as a potential beneficiary or otherwise; and
(d)Effect assignment to the husband of any debt owed by the wife to the Hambart Family Trust or any debt owed by the Hambart Family Trust to the wife.
9.Following the sale of the shares in D Pty Ltd, the husband on or before 30 September 2023 must provide to the wife a copy of:
(a)His draft tax return including the capital gains tax payable for the sale of the D Pty Ltd shares; and
(b)A letter of his accountant setting out the capital gains tax calculations.
10.Following receipt of the documents pursuant to Order 9, the wife has 21 days to obtain her own accounting advice on the capital gains tax calculations and should she not agree with the calculation as proposed by the husband’s accountant, she is to serve a letter prepared by her accountant setting out the capital gains tax calculation on both the husband and his accountant.
11.Should there continue to be a dispute about the calculation of capital gains tax, then the accountants are to confer within a further 14 days and if there continues to be a dispute, the calculation that provides for the lowest capital gains tax payable is to be submitted on the husband’s tax return to the Australian Taxation Office (“the ATO”).
12.Following compliance with Orders 9-11 and upon the husband producing:
(a)A copy of his filed tax return; and
(b)A copy of correspondence from the ATO detailing the CGT payable,
Farrell Lusher Solicitors are directed by the parties, this order being sufficient authorisation, to pay from the trust account to the ATO the amount due for the capital gains tax payable on the sale of the D Pty Ltd shares. Any balance of funds held in trust thereafter are to be distributed as follows:
(a)58 per cent to the wife; and
(b)42 per cent to the husband.
13.Should there be a shortfall of funds held in the trust account of Farrell Lusher for the payment of the capital gains tax, the husband and wife are to pay any shortfall equally.
14.In the event of either party refusing or neglecting to sign within 14 days after receipt of a written request to do so any documents necessary to put into the effect the above orders, the registrar of this Honourable Court or such other person appointed by the Court is hereby appointed to execute such documents on behalf of the parties pursuant to the provisions of s 106A of the Family Law Act 1975 (Cth).
15.Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other party to all property (including choses in action) in the possession of such party as at this date. All the chattels in the matrimonial home are considered to be in the possession of the wife.
(b)Each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other.
(c)All insurance policies to become the sole property of the beneficiary named therein.
(d)Each party be solely liable for and indemnify the other against any liability encumbering any item or property to which that party is entitled pursuant to these orders.
16.In the event that the sum the wife is required to repay to Centrelink is less than $4866.16, then she is to reimburse the husband for 42 per cent of the amount by which the sum is reduced.
BY CONSENT THE COURT ORDERS THAT:
17.Within 7 days of the date of these orders the wife will do all things necessary to resign as a director and the secretary of E Pty Ltd.
18.The husband shall indemnify and keep the wife indemnified in relation to all liabilities of E Pty Ltd including any liability for which the wife may have personally guaranteed.
19.Within 30 days from the making of the orders the wife do all acts and things and sign all necessary documents to transfer her F Company shares to the husband.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Hambart & Hambart has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
These are proceedings between the applicant husband (“the husband”) and the respondent wife (“the wife”) pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) as a consequence of the breakdown of their marriage.
The matter has had a somewhat tortured history before the Court arising out of the parties’ inability to reach agreement about the value to be ascribed to their interest in D Pty Ltd trading as G Company.
The matter was originally listed before a judge of Division 2 of the Court for hearing in City C in late October 2022. It appears that over the course of approximately three days, the parties unsuccessfully attempted to try and resolve the issue as to value as well as the wider financial dispute between them. As no agreement was reached, the matter was then listed to be heard on 14 December 2022 in the City H Registry of Division 2 of the Court. As a consequence of judicial availability, the matter was transferred to Division 1 of the Court on 12 December 2022 and heard by me on one day in City H on 14 December 2022.
At the commencement of the hearing, the Court made an order by consent appointing a trustee for sale of the parties’ interest in D Pty Ltd, with the trustee to determine the price and do all acts and things necessary to effect a sale of the business. There had been an offer to purchase the parties’ interest in D Pty Ltd for $1,254,835 (subject to various terms and conditions) by the other shareholders of D Pty Ltd. It was clearly the contemplation of the parties that the trustee, when appointed, would attempt to continue to negotiate with the proposed purchasers. Each party submitted that the net sale proceeds from the share sale would then be divided in the same proportions as the Court ultimately determined their property settlement entitlements.
The matter did not complete on 14 December 2022 and was adjourned part heard to Sydney on 6 February 2023.
Between the two hearings in City H and Sydney, the husband sent an email on 3 January 2023 to the other shareholders of D Pty Ltd (being the only potential purchasers known to the parties). That email became Exhibit 6 in the proceedings.
The contents of the email were extraordinary. It included what could only be viewed as threats by the husband to the other shareholders that they should acquire the parties’ interest at the price and on the terms he suggested otherwise he would contact, amongst others, the Serious Financial Crimes Taskforce and alluded to reporting the matter to the Department of Immigration. The email included the words “No Deal = Scorched Earth”.
As a consequence of this email, the wife amended her relief and sought to ascribe a value to the D Pty Ltd interest of $1,254,835, being the value of the last offer. This represented a significant departure from the position that she had adopted in December. The husband maintained the position as advocated in December.
The Court raised with senior counsel for the wife that the Court was not inclined to approach the matter on that basis and would prefer to await the outcome of the sale and give the parties then a further opportunity to make submissions. Following hearing submissions from each party, the Court determined that the matter would be adjourned pending a sale by the trustee. Neither party sought that the Court provide reasons for such determination.
The matter was adjourned to 6 April 2023 to see what the position was in relation to the sale of D Pty Ltd. The matter was still not resolved by that date and adjourned then to 12 May 2023. On that occasion, the Court was advised that the trustee had just recently negotiated a sale of the D Pty Ltd interest to the original prospective purchases but now at a price of $850,000. The matter was subsequently adjourned to 21 July 2023 to enable the parties to give consideration to what further submissions they wished to make.
On 21 July 2023, leave was granted to the husband to rely upon an affidavit of his solicitor filed 30 June 2023, which attached various documents including the concluded agreement and a letter from the trustee which responded to a letter from the wife’s solicitor of 29 May 2023. The wife also sought to rely on written submissions prepared by her senior counsel. A timetable was then provided for the husband to respond to those submissions and the wife to thereafter reply, with the last of those submissions to be provided by 28 July 2023. The wife elected to file no submissions in reply.
The husband’s counsel submitted that the Court should find the contributions of the parties in percentage terms to be 65 per cent to the husband and 35 per cent to the wife, and that there should thereafter be a 5 per cent adjustment in favour of the wife under s 75(2) giving effect to an overall 60/40 split of the parties’ assets in favour of the husband.
The wife for her part contended that the Court should find that the parties’ contributions were equal and that there should thereafter be a 10 per cent adjustment in favour of the wife for the matters arising under s 75(2), leading overall to a 60/40 division of the parties’ assets in favour of the wife. The wife on the basis of this submission contended for an addback of the difference between the original offer for the shares in D Pty Ltd and the ultimate sale price. She alternatively submitted that in the event that her submission for an addback was not accepted, then she sought an additional 10 per cent adjustment under s 75(2) leading to an overall 70/30 division in her favour.
As will be apparent from my reasons, I am of the view that neither party’s proposal represented a just and equitable outcome.
DOCUMENTS RELIED UPON
The husband relied upon the following documents:
(1)Further Amended Initiating Application filed 10 October 2022;
(2)Affidavit of husband filed 10 October 2022;
(3)Affidavit of husband in reply filed 14 October 2022;
(4)Affidavit of the husband’s solicitor, Luke Middleton, filed 30 June 2023;
(5)Amended Financial Statement filed 10 October 2022;
(6)Case Outline document; and
(7)Written submissions.
The wife relied upon the following documents:
(1)Amended Response to Initiating Application filed 2 June 2020;
(2)Affidavit of wife filed 10 October 2022;
(3)Financial Statement filed 10 October 2022;
(4)Case Outline document; and
(5)Written submissions.
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.
In 2010, the husband took a 12 months leave of absence from his job to work full time (without pay) on D Pty Ltd. The wife says that the City C property was provided as security for a loan obtained by D Pty Ltd.
In 2011, the husband commenced working full time at D Pty Ltd as the managing director.
In or around November 2012, the wife commenced working part time at D Pty Ltd.
In or around mid-2018, the company E Pty Ltd, of which the wife was the sole director and the husband one of three shareholders, was established for the purposes of purchasing a business premises for D Pty Ltd. Two properties were subsequently purchased by the company.
As referred to earlier, the parties separated on a final basis in around July or August 2018 depending on whose version of events is accepted.
On or around December 2018, the husband stopped depositing his wage into the parties’ joint account.
In December 2018, the husband stopped making mortgage repayments on the City C property.
From early to mid-December, the husband over several transactions withdrew a sum of $44,970 from the parties’ redraw on their home loan.
In December 2018, the wife found $10,000 hidden in a suitcase. The next day, the husband deposited $15,000 into the parties’ joint account. In February 2019, the husband deposited a further $10,000 into the joint account.
In early 2019, the husband attended a three week rehabilitation program.
In September 2019, the husband removed approximately $57,000 from the Hambart Family Trust. The husband did not advise the wife he had done this.
In October 2019, the wife says she stopped making mortgage repayments on the Town K property and the City L property. The husband says that he has been paying the mortgages for these properties since December 2018.
In March 2020, the husband moved to Queensland.
In January 2021, the wife lodged an application with the Child Support Agency. The husband subsequently lodged five objections with the Child Support Agency.
In January 2021, the husband returned to live in City C.
In April 2021, the wife stopped receiving child care subsidy payments because she had not lodged her 2018/2019 tax return. The wife says that she was unable to lodge her tax return on time because the husband as trustee for the family trust had not filed returns for the trust. In July 2021, the wife received a bill from Centrelink for filing her 2018/2019 tax return late. The wife says that she is appealing this bill and that currently she owes approximately $5,000. The husband says that the wife would be aware that the accountant for the family trust is hard to contact and that she could have submitted the tax return on time and if needed, amend the return at a later time.
In October 2021, the wife says she received a default notice from Westpac Bank relating to the mortgage on the City C property. She says that the husband was withdrawing funds and applying those funds to a credit card that is in his name. The husband contends that it was a joint credit card and that he used the money available in the mortgage account to pay off the debt. He denies that the mortgage was in default.
In late 2021, the wife resigned from D Pty Ltd. In late 2022, the husband left D Pty Ltd.
The wife contends that the relationship was always tumultuous and marred by family violence, including physical, emotional and financial abuse. In her affidavit, the wife details several instances of family violence both prior to and after separation, which include the wife being shoved against a wall, yelled at by the husband, grabbed by the face and throat, thrown to the ground and kicked, punched and run after with a knife. For his part, the husband agrees that the relationship was turbulent. He agrees to some instances of family violence detailed in the wife’s affidavit but denies that he was physically abusive. He says that the relationship was characterised by arguments and that both parties were verbally abusive, with the wife also being physically abusive towards him.
APPROACH TO PROPERTY PROCEEDINGS
The approach to be adopted in a financial adjustment case under s 79 of the Act is to follow the well-recognised four-step process (see Hickey & Hickey & Attorney-General for the Commonwealth of Australia (intervener) (2003) FLC 93-143). Following such an approach, the Court identifies and values the assets and liabilities at the date of hearing for the purposes of division. Secondly, the Court assesses the contributions of the parties within the meaning of s 79(4) of the Act and determines a contribution based entitlement. Thirdly, the Court identifies the relevant matters under s 75(2) and determines such adjustment as is necessary to the contribution based entitlement. Finally, the Court considers the effect of the findings and must then determine whether the order as proposed is in all the circumstances just and equitable.
Whilst no submission was made consistent with the ratio arising out of the High Court’s determination in Stanford v Stanford (2012) 247 CLR 108, I am of the view that it is just and equitable that an order be made adjusting the property interests of the parties. The parties are no longer living together and there is no longer the common use of their property. The assumptions and undertakings that governed the use of their property ended with separation and both parties sought that there be an adjustive order.
BALANCE SHEET
The parties’ assets and liabilities were captured in a document, which became Exhibit 4 in the proceedings. By the time of the submissions in February 2023, the pool was as follows:
Ownership Description Applicant’s value Respondent’s value ASSETS 1 J B Street, City C $1,350,000 $1,350,000 2 H 33.3% N Street, Town K $86,666 $86,666.66 3 Trust 30% interest in M Street, City C $750,000 $750,000 4 H D Pty Ltd Service Pty Ltd t/as G Company- 30% $1,245,835 Not known 5 Trust 2022 Dividend E Pty Ltd $34,037, $34,037 6 H Hambart Family Trust account owing from D Pty Ltd - passed dividends $16,480 $16,480 7 J F Company shares $1693.12 $1,693.12 8 H P Bank Account (#...28) $174.70 $314.99 9 H P Bank Account (#...80) $6.36 $6.36 10 H P Bank Account (#...94) $0 $17,500 Account into which payout made and used to pay legals 11 W CBA Account (#...80) $534.20 $534.20 12 W CBA Account (#...80) $796.50 $796.50 13 W CBA Account (#...25) $801.58 $801.58 14 W CBA Account (#...74) $102.62 $102.62 15 H Shares in Q Company $56,700 $56,700
Total $3,668,837.62 $3,681,204.91
ADDBACKS 17 W Funds received by wife per orders 14 December 2022 $50,000 $50,0000 18 H Funds received by Husband per orders 14 December 2022 $50,000 $50,000 19 H Funds taken by Husband on in December 2018 and not paid back $15,000 $19,970 20 W Funds repaid by Husband to joint mortgage in early 2019 $25,000 $0
Total $140,000 $119,970
LIABILITIES 19 J Westpac Mortgage on B Street $249,226 $249,226 20 H Share of mortgage over Town K $89,782 $89,782 21 H Residual mortgage on Town K $55,480 $55,480 22 H Loan remaining to Westpac relating to property in City L long ago sold $39,104 $39,104 23 W Share of E Pty Ltd Mortgage $383,096 $374,478 24 W Centrelink debt - fine for late filing of tax returns $NIL $4,866.61 Capital Gains Tax on sale of shares $Unknown $Unknown
Total $817,172.22 $817,039.52
SUPERANNUATION Member Name of Fund Type of Interest Applicant’s value Respondent’s value 26 H Superannuation Fund 1 $199,323.79 $199,323.79 27 W Superannuation Fund 2 $125,522.09 $125,522.09 28
Total $324,846 $324,846
FINANCIAL RESOURCES Ownership Description Applicants value Respondents value $ $
Total $NIL $NIL
The only matters in dispute as between the parties in relation to the construction of the Balance Sheet were Items 4, 8, 10, 19, 20 and 24.
The value of D Pty Ltd was finally determined by virtue of the sale by the trustee to be $850,000. There are clearly costs of the trustee to be deducted from this amount. As the parties are in agreement as to how this sum should be divided, I will remove the amount from the Balance Sheet recognising the parties’ agreement in relation to its division.
I will adopt the husband’s figure for the bank account balance in Item 8 as an admission.
In relation to Item 10, counsel for the husband conceded that this amount had been paid in relation to legal fees. The source of these monies was from a redundancy payment received by the husband post-separation. After some short exchange with counsel for the husband, she conceded that it should be an addback.
In relation to Items 19 and 20, the unchallenged evidence appears to be that, in or about December 2018, the husband withdrew the sum of $44,970 from the redraw facility on the parties’ home loan. The evidence is that he returned the sum of $25,000 to the joint account, leading inevitably to the conclusion that he retained $19,970 in his possession.
Counsel for the husband ultimately conceded that if there was to be an addback, then what should be added back is the sum of $19,970 as against the husband and not the sum of $15,000. The husband sought to add back against the wife the sum of $25,000, which the husband paid back into the joint account.
The wife sought an addback of $395,835 being the difference between the value of the offer of $1,245,835 and the ultimate negotiated sale price of $850,000. She submitted that the reduction arises as a consequence entirely of the husband’s conduct not just in relation to sending the email comprising Exhibit 6, but also his conduct in the negotiations leading to the offer including refusing to agree to the restraints sought by the prospective purchasers. Senior counsel for the wife’s submission was that this conduct is of the kind recognised by the Full Court in Kowaliw and Kowaliw (1981) FLC 91-092, namely conduct “where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value” (at 76,644).
In her written submissions, the wife’s senior counsel said the following:
6. The basis upon which the husband was not prepared to enter into the restraints has not been articulated by him or reflected in the evidence. During cross examination the husband maintained his belief that the value of the parties’ interest in [G Company] was in the order of $586,000.00, per the single expert valuation of [R Accountants]. It was put to him that if that was the case the offer of $1,245,835.00 represented an uplift of some approximate $700,000.00 which well and truly compensated him for the restraints, whether they be in place for 12 months (as previously proposed by the purchaser) or to 30 June 2023 (which was ultimately proposed). The husband simply answered that he hadn’t really thought about it. It is submitted that the Court would not accept that evidence in circumstances where the husband has been self employed and engaged in running a business for some years. It was clear from his evidence that the husband had more or less adopted a “scorched earth” policy in relation to his dealings with the purchasers.
7. At the very least the husband’s “[scorched] earth” email of 3 January 2023 to the directors and prospective purchasers is proof of this. His attitude to the negotiations generally, his unwillingness to adopt a commercial approach to them and his antipathy towards the wife and his previous business partners is reflected in his evidence. Ultimately it also reflected in the sale price that the trustee was able to achieve for the shares.
8. Realistically the only real contenders for the purchase of the parties’ shares in the business were those that were already connected with the business and it follows that the husband sought to blackmail in the “[scorched] earth” email. The husband acted outside of the parties’ interests with no regard for the impact upon them. It was wanton and reckless.
9. Given that the husband’s position is that he is not earning an income at the present time (of any substance) and that has been the position in the period that these offers were made, it again demonstrates the unsustainability of the husband’s position in refusing to accept the earlier offers simply because they had restraints attached to them.
(Exhibit 14)
To appreciate the import of the submission of the wife, some regard must be had to the content of the husband’s email. It is a truly extraordinary document not just in the breadth of its assertions, but also in the arrogance displayed by the husband in sending it and in assuming the other shareholders would bend to his dictates, the rank naivety in communicating such thoughts, and the intent to act as submitted by the wife’s senior counsel “outside of the parties’ interests with no regard for the impact upon them. It was wanton and reckless” (wife’s written submissions, paragraph 8). Having watched the husband give evidence, conscious of his marked level of antipathy toward the wife, and having listened to his answers in the course of cross examination, I am satisfied that it involves elements of each of these propositions. The motivation, however, is not as significant as the consequence.
As stated earlier, the email needs to be read to truly appreciate the arrogance, naivety and recklessness involved in sending it. It contains the following assertions:
Afternoon Guys
I am writing this email to make sure everyone is well informed on exactly what is going on. Some of this won’t be easy to hear and I have been pretty restrained over the past few years but I have now been backed into a corner and reached the end of my tether.
As you may or may not know, I have been trying to sell me shares in [D Pty Ltd] for the past few months as a part of my family law settlement. This sale was agreed by [Ms Hambart] and I to get an actual value on the business with one proviso, that I kept my shares in the recycling IP, Plant and associated information.
[D Pty Ltd] put an offer forward of $1,245,835.00 and some additional clauses.
The additional clauses and the lack of shareholding in the recycling is what is currently in disagreement.
So today I am going to discuss all the clauses and give all the shareholders my insight and final offer.
…
4. Indemnity
This is an interesting one and possibly the biggest. According to [Mr S] and [Mr T] this is a non negotiable. The reason it is non-negotiable is because it would “gag” me from every speaking of the illegal activities [D Pty Ltd] has been involved in over the years. Righto, smart. This is also what your current solicitor […] would call a pressure point. Please also note I am positive he wouldn’t be aware of these activities otherwise he is obliged to report them.
So what are they?
a. Cashies or Tax Fraud, I have all emails from [Mr S] titled “cash distributions” and all text messages from [Mr T] when he used to write out the distributions
b. [Country U] Worker or Immigration Fraud, I have all these emails including confirmation from [Mr V].
c. Receival of Stolen Goods, Now if I know [Mr T], he has picked everything up and moved it with his little low loader but I have photographic evidence of all equipment.
d. Inappropriate use of Grant Funding, this is an interesting one as well, that is all documented in emails.
Now I know what you’re all thinking, he is bluffing. If he does that he will sink himself ..... You are dead right and I was bluffing about this until I went to Court on the 14th December to find my “confidential personal employment file” submitted as evidence as well as personal conversations I had with [Mr T]. Now [Mr W] is going to say “we were subpoenaed, we had to supply it”. Maybe ... But so was [Q Company], [AA Accountants] & [Mr BB] and they didn’t send anything. [D Pty Ltd] however, in support of [Mr S’s] girlfriend quickly supplied the information in record time.
So now I am NOT bluffing.
Given the [D Pty Ltd] will be under criminal investigation I will also advise the NSW government […] of this situation. These agencies make up approximately 75% of our revenue so it will have a drastic effect on all current and future works in the government space.
Actually, This closes the business and probably some of [Mr T’s] other businesses. It also puts [M Street] at jeopardy and anything else that is attached to the business. Not to mention no one will be able to be a director of a company in Australia, which includes [Mr V], in case you’re wondering [Mr W]. It’s what solicitors call “the scorched earth result”.
[Mr CC] recently had a conversation with [Mr DD] and he said “[Mr Hambart] just needs to get over it and get on with things”. Spot on [Mr CC] but as you can see from the above, you guys won't let me get on with it.
So what do I want????? Great question!!!!!!!!! Here is my final offer and it’s not negotiable.
$1,245,835.00
My 6% in CSS and 30% of the […] plant to be delivered to [City C]
In return, I will
Accept a restriction of trade in [City C] only until June 30 2023
Full Indemnity
Signing of sales deed However the transfer of shares will NOT happen until full payment is made.
I understand that you will be thinking, [Mr Hambart] is losing his shit and trying to hold us over a barrel but as illustrated above so did [Mr V] and none of you cared. I am doing exactly what [Mr T] did when replying to the subpoena, following the law.
Deal = Everyone moves on, no damage.
No Deal = Scorched Earth.
FYI I currently have an interview booked with the Serious Financial Crime Taskforce (this is a joint agency taskforce) [in] January 2023, which [Mr S] is aware of. So I need a response by this Friday the 6th January 2023.
Happy to discuss if you want, you know where I live.
(As per the original)
(Exhibit 6)
By the time the email was sent, the previous offer to purchase the shares at $1,245,835 on conditions had expired.
In cross-examination, the husband agreed that one of the purposes in sending the email was to threaten the shareholders. If it were the husband’s intent in sending the email to encourage the prospective purchasers to reinstate their offer on his terms, then it would appear he was sorely mistaken if not deluded.
The letter from the trustee provides some insight into the attitude of the prospective purchasers towards the husband and the email he sent. The letter dated 8 June 2023 records the following:
1.…
c. There appears to have been some animosity between [Mr Hambart] and the Directors of [D Pty Ltd] relating to his alleged conduct both before and after our appointment. We attach for your information an email that [Mr Hambart] sent to the Company’s Board with a “final offer” and conditions.
d. Following our appointment, we made contact with the existing shareholders who had made offers as they appeared to be the likely parties who would be interested in acquiring the shares. Based on communications with those shareholders, we understood that the shareholders believed there were significant claims against [Mr Hambart] for alleged reputational damage to the Company and theft of Company’s assets. It was the view of the shareholders that any offer that they wished to put forward would apply a discount to the price as a result of the above.
e. It also appeared that the shareholders felt exhausted given the history and the fact that offers made in the past had not been accepted.
…
g.…
iii. As a result of the timing of our appointment and the Shareholders Agreement, it was the view of the existing shareholders that their previous offers put forward had lapsed and a new valuation was required to be undertaken which factored in the financial information up to 31 December 2022. That financial information was not finalized by the Company and presented to us until 1 March 2023.
2. …
b.Firstly, we note that the offer that had been made by the existing shareholders prior to our appointment had lapsed and was not capable of being accepted. Instead, following our appointment the existing shareholders had indicated this to us and had advised their intention to conduct an updated valuation of the Company pursuant to clause 3 of the Shareholders Agreement as a basis of any revised offer put forward by them.
Secondly, the Shareholders Agreement stipulated that a valuation of the shares was able to be conducted as at 31 December 2022. The offers that had been made prior to our appointment were on the basis of a Company valuation as at 30 June 2022 (as 31 December 2022 has not passed). The existing shareholders therefore did not wish to restate their previous offer given the value of the shares was likely to change upon a valuation being conducted as at 31 December 2022.
…
Based on the financial information up to 31 December 2022, calculation of future maintainable earnings and goodwill of the Company was affected. This resulted in the valuation of the shares being reduced from the valuation conducted prior to our appointment (which was as at 30 June 2022).
…
c.Without forming any views or opinions regarding the allegations of [Mr Hambart’s] conduct, we note that the shareholders have accused [Mr Hambart] of taking Company property, equipment and intellectual property. The shareholders had sought to set that the value of those items off against the sale price. Further, the shareholders wished to discount the value of shares by the alleged reduction in the value of the company's business due to reputational damage as a result of [Mr Hambart’s] conduct. We have been provided with Excel spreadsheets and working papers by the company of the alleged reputational damage suffered by the company as a result of [Mr Hambart’s] purported conduct.
(Affidavit of Luke Middleton, Annexure LAM-03)
It is an agreed fact that the “final offer” referred to in the trustee’s letter is Exhibit 6.
The husband’s counsel submitted that the Court should not add back any amount as contended for by senior counsel for the wife. She contended that the husband’s conduct could not be viewed on any construction as either negligent, reckless or wanton. Indeed, she made a submission that had he accepted the initial offer which came as part of the conditions with no security, his conduct could have had such characterisation. In circumstances where the offer was not acceptable to the husband and ultimately rejected by him, I do not need to consider such a submission.
The husband’s counsel also submitted that the offer to purchase for $1,245,835 was not bona fide and made in the knowledge that “there was no reasonable prospect of the [husband] agreeing to them” (husband’s written submissions, paragraph 14(c)). There is no foundation for such a submission and accordingly I do not accept it. The husband, despite having an opportunity to do so, adduced no evidence from the purchasers that would support a submission that the proposed shareholders in making the initial offer were not bona fide and made the offer in the knowledge that the husband would not accept it.
The husband’s counsel also submitted that:
14. …
d.… There is no doubt from the Trustee’s letter and the contents of the applicant’s email to the shareholders dated 3 January 2023 there is animosity between the applicant and the shareholders. However, there is no nexus between this email and the ultimate sale price and in no way can it be inferred from the trustee’s observations that it was the behaviour of the applicant which led to the reduction in the sale amount compared with the initial offer. …
His counsel also submitted:
15. …
(7) … The apparent animosity between the applicant and the shareholders was not denied by the applicant in cross examination. However, the “scorched earth policy” which is used by the respondent to describe the attitude by the husband towards the shareholders was not a determinative factor in the negotiations between the Trustee and the shareholders and did not lead to a lowering of the purchase price. …
I do not accept this submission as it is inconsistent with paragraph 2(c) of the trustee’s letter which talks of the purchasers setting things off against the sale price and discounting the value of the shares by the “alleged reduction in the value of the company’s business due to reputational damage as a result of [the husband’s] conduct” (affidavit of Luke Middleton, Annexure LAM-03).
An addback is the exception rather than the rule. In Omacini & Omacini (2005) FLC 93-218 (“Omacini”), the Full Court said:
30.To date, three clear categories of cases have emerged where the Court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a) Where the parties have expended money on legal fees. In DJM and JLM (1998) FLC 92-8l6 the Full Court said at 85,262:
“11. 6 For reasons set out in Farnell, s 117 provides that each party to proceedings under the Family Law Act shall bear their own costs unless the Court otherwise orders. Failing to add back monies expended by parties on costs frequently has the effect of defeating the policy of s 117 by permitting the pool of available assets for distribution between the parties to be diminished by any monies that either of the parties have managed to spend on their costs up to the date of trial. We are of the view that the normal approach ought be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought normally be spelt out.”
(b) Where there has been a premature distribution of matrimonial assets. In Townsend and Townsend (1995) FLC 92-569 Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at 81,654:
“In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband's receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly.”
(c) In the circumstances outlined by Baker J in Kowaliw and Kowaliw (1981) FLC 91-092 at 76,644:
“As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec 75(2)(0) to applications for settlement of property instituted under the provisions of sec 79.”
In Trevi & Trevi (2018) FLC 93-858, the Full Court observed:
27.The Full Court held in Omacini and Omacini that addbacks fall into “three clear categories”: where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets; and “waste” or wanton, negligent, or reckless dissipation of assets.
28.However, the Full Court also made it clear that an addback does not necessarily occur whenever “a party has expended money realised from the disposition of assets that existed as at the date of separation”, the Full Court describing such a proposition as “unduly simplistic”. An earlier Full Court made the same point, saying that adding back is “the exception rather than the rule”.
29.The fundamental precept that addbacks are exceptional, reflected in the decisions just referred to, also mirrors what has been said in earlier decisions of the Full Court that, for example, “the Family Court must take the property of a party to the marriage as it finds it” at trial. An important parallel proposition is that the parties do not “go into a state of suspended economic animation” after separation. Thus, reasonably incurred expenditure does not usually come within accepted categories of addback.
30.Two fundamental premises emerge from Omacini and the authorities preceding it. First, “adding back” is a discretionary exercise. When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it. The second premise is its corollary: in cases that are not “exceptional” justice and equity can be achieved, not by adding back, but by the exercise of a different discretion – usually by taking up the same as a relevant s 75(2) factor. Indeed, it has been said that the latter is “a course which is, perhaps, technically more correct” than adding back to the list of existing interests in property.
(Footnotes omitted)
I am not satisfied that there should be any addbacks beyond what was agreed.
In relation to the monies drawn down against the mortgage, it is apparent that the husband retained $19,970 of those monies. It is also apparent, however, that the wife received back $25,000. There is no evidence that she returned the money to the mortgage. In the event that she had, I would be more inclined to add back the monies as against the husband. Otherwise, the evidence discloses that $44,970 was drawn by the husband from the mortgage of which he retained $19,970 and the wife received $25,000. In circumstances where the authorities make it clear that an addback is the exception rather than the rule, and in circumstances where the parties have each received part of it, I do not propose to add either of the amounts back.
As to the alleged reduction in value of the parties’ interest in D Pty Ltd, I am not satisfied that the evidence is such that I can add back the amount as contended for by the wife. However, I am satisfied that the husband’s conduct, in particular his email, was taken into account by the prospective purchasers in revising downwards their offer. As much is clear from the trustee’s letter. Consistent with the authorities referred to above, I propose to deal with this issue under s 75(2).
The wife seeks to include as a liability a sum owed to Centrelink. The circumstances in which the Centrelink debt was incurred are set out at length by the wife in her affidavit and referred to earlier. The wife contends that she incurred the debt as a consequence of a failure to lodge her income tax returns in circumstances where she had in the past received various distributions from the Hambart Family Trust. She contends that because the husband had not lodged the returns for the Hambart Family Trust, she could not do her tax returns as she was unclear as to whether or not the husband had declared any income to her. When she ultimately lodged her tax returns, she incurred a debt to Centrelink. She says that she has appealed this determination and the decision is still pending.
There was no issue as to the amount or the factual circumstances.
Counsel for the husband submitted that the wife should have lodged her income tax returns and had she done so no debt would have arisen. I am not satisfied that that position necessarily flows. It would appear to me that the wife was attempting to avoid the additional costs of lodging an amended return in the event there had been a distribution by the husband to her. The failure by the husband to lodge the returns led to her delay. I accept her explanation.
In all the circumstances, I am satisfied that I should include the amount as a liability of the wife but I will make a provision that in the event that the wife is given notice by Centrelink that they do not intend to pursue the debt, then she will be obliged to account back to the husband for a percentage of it in accordance with my ultimate findings.
In light of the above, I find the properties of the parties for division to be as follows:
Ownership Description Value ASSETS 1 J B Street, City C $1,350,000 2 H 33.3% N Street, Town K $86,666 3 W 30% interest in M Street, City C $750,000 4 H D Pty Ltd t/as G Company - 30% NA 5 Trust 2022 Dividend E Pty Ltd $34,037 6 H Hambart Family Trust account owing from D Pty Ltd - passed dividends $16,480 7 J F Company shares $1,693.12 8 H P Bank Account (#...28) $174.70 9 H P Bank Account (#...80) $6.36 10 H P Bank Account (#...94) $17,500 11 W CBA Account (#...80) $534.20 12 W CBA Account (#...80) $796.50 13 W CBA Account (#...25) $801.58 14 W CBA Account (#...74) $102.62 15 H Shares in Q Company $56,700
Total $2,315,491.90
ADDBACKS 17 W Funds received by wife per orders 14 December 2022 $50,000 18 H Funds received by Husband per orders 14 December 2022 $50,000
Total $100,000
LIABILITIES 19 J Westpac Mortgage on B Street $249,226 20 H Share of mortgage over Town K $89,782 21 H Residual mortgage on Town K $55,480 22 H Loan remaining to Westpac relating to property in City L long ago sold $39,104 23 W Share of E Pty Ltd Mortgage $374,478 24 W Centrelink debt - fine for late filing of tax returns $4,866.61
Total $812,936.61
SUPERANNUATION Member Name of Fund Type of Interest Applicants value 26 H Superannuation Fund 1 $199,323.79 27 W Superannuation Fund 2 $125,522.09
Total $324,845.88
TOTAL 1,927,401.10 ASSESSMENT OF CONTRIBUTION
I have read all of the evidence relied upon in the proceedings including the exhibits but do not propose to repeat all of it in these reasons. As the High Court reminds in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447:
62. … 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 property considered the losing party’s case.
The assessment in a property case calls for the exercise of a discretion and a holistic value judgment of the respective contributions of the parties. The Court is required to consider all of the contributions of the parties as the Full Court in Dickons v Dickons (2012) 50 FamLR 244 makes plain:
24.…the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). 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.
25.Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “giving overzealous attention to the ascertainment of the parties’ contributions” (Norbis v Norbis (1986) 161 CLR 513 at 524 ; 65 ALR 12 at 18 ; 10 Fam LR 819 at 825 ; [1986] HCA 17) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
26.The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
The Full Court reminds consistently, as stated in Horrigan & Horrigan [2020] FamCAFC 25, that it is:
35.… well established that an assessment of contributions is not a mathematical exercise, but rather involves the identification and assessment of all of the parties respective contributions, in a holistic way across the course of the relationship and in the post-separation period to the point of assessment. …
I am also mindful of what the Full Court said in Singerson & Joans [2014] FamCAFC 238 at [66] that for the purposes of s 79 of the Act, there is nothing to suggest that any category of contribution needs to be quarantined and applied solely to particular assets. In my view, the authorities require evaluation of all contributions to the property of the parties, notwithstanding that the categories of property may be different. This view has been confirmed by subsequent Full Courts such as in Jabour & Jabour (2019) FLC 93-898, where their Honours observed that a primary judge should be cautious in emphasising the importance of an increase in value of a particular item of property at the expense of “the myriad of other contributions that each of the parties has made during the course of the relationship” (at [35]).
The consistent theme from the authorities is that the multifarious contributions over the relationship and subsequently of all types are to be assessed in aggregate.
Guided by such Full Court determination, I propose to assess the parties’ contributions.
In relation to matters of history and/or date, I prefer the evidence of the wife to that of the husband other than in relation to the allegations of family violence. I will deal with my findings in relation to this aspect separately.
The evidence of the wife was specific and detailed, contrasted with the broad generalities of the husband and, in some respects, his inconsistent assertions. For example, the husband contends that the parties commenced cohabitation in 2008. The wife contends that the parties’ cohabitation commenced in 2007. That said, the husband’s Further Amended Initiating Application contended a date of cohabitation of 2007. Thus, his affidavit evidence and his Further Amended Initiating Application are in conflict.
The wife gave evidence in her affidavit to the following effect:
16. The purchase of [B Street] was settled [in] 2008 and both loans were drawn down on that date to settle the property. We were already in occupation and paying an occupation fee having moved in […] December 2007.
In response to that paragraph and other paragraphs dealing with initial contributions, the husband in a generic response to the wife’s paragraphs 13 to 16 said as follows in his affidavit in reply:
7.… I do not currently have access to our historical financial documents as they have remained at the [B Street] property with [Ms Hambart]. Given she has those financial documents, I agree with her version of events in relation to the sale of the [City J] property and the purchase of the [B Street] property.
Accordingly, I accept the wife’s evidence that the parties commenced cohabitation in 2007.
The wife contended the parties were married in 2010. The husband in his affidavit contended the parties married in 2011. I accept the wife’s evidence. It is specific and it accords with the date of marriage set out in the husband’s Case Outline and Further Amended Initiating Application.
Likewise, the husband contended that the parties separated on 11 July 2018 in his affidavit. His Further Amended Initiating Application asserted the date of separation to be 4 August 2018. The wife contended the parties separated on 19 August 2018. I prefer the wife’s evidence albeit that nothing turns on the exact date of separation.
The husband contended that at the commencement of cohabitation his assets consisted of $480,000 in cash from the proceeds of sale of a property at City J, a 33 per cent share in the Town K property which had negative equity, and a motor vehicle. He contended the wife’s assets consisted of savings of approximately $90,000 which were invested in shares in the company F Company.
I prefer the wife’s version of the parties’ assets as being more accurate. I accept the wife’s evidence as set out in paragraph 17 of her affidavit, which records that the proceeds of sale of the City J property were $408,000. I accept this evidence because the husband agrees with the wife’s version of events. Thus the husband did not have as he swore $480,000 in cash.
The wife also identifies that the husband owned a property at City L at the commencement of cohabitation. The husband made no reference to this property. In circumstances where there was no evidence adduced by the husband as to its value or any mortgage balance, I am unclear as to whether it had any equity at all at the commencement of cohabitation. It was his case to prove and he chose not to lead evidence.
One of the myriad of insignificant issues in the proceedings is whether the wife’s initial contribution was $90,000 or $100,000. Counsel for the husband conceded that it made little difference. I agree that it makes little difference but in the circumstances I am prepared to accept the wife’s evidence in circumstances where she has been significantly more accurate than the husband given his broad generalisations and demonstrated errors.
An issue was what happened to some of the money from the proceeds of sale of the City J property. The wife’s evidence is that she did not know where $105,000 of those monies went but it must be said nor did the husband. The mystery was not resolved by the cross-examination. The same applies to the investment by the wife in the F Company shares which ultimately turned out to be of little value. I am not satisfied that either party’s position warrants any particular finding one way or the other. In that respect, I have had regard to the observations of the Full Court in Parshen v Parshen (1996) FLC 92-720 (“Parshen”) where their Honours at 83-665 say:
… in the absence of evidence to the contrary, it should be inferred in proceedings pursuant to the provisions of s 79 that moneys howsoever received by a party during the course of the parties’ cohabitation, are used by that party for the benefit of the family unit. …
I also note that there was no suggestion that the wife’s shares were invested with the intention of losing money. I am not satisfied that there is any evidence that would enable me to draw the contrary intention as identified in Parshen.
Following the purchase of the City C property, the parties effected renovations. The wife gives evidence that the parties received the sum of $220,000 from the husband’s parents. The wife seeks to imply that in some way or other it was a gift to them both. The husband contended that it was a loan. There is no evidence it was a loan.
In relation to the question of a gift, Fogarty J in Gosper and Gosper (1987) FLC 91-818 (“Gosper”) said at 76,167–76,168:
‘Where there has been a gift or advance by a relative to one or both of the parties to the marriage the first step is to determine the ownership of that benefaction (see Rainbird; Read). Confusion often arises at this point because, particularly with gifts of money or in kind, the evidence about it is confused and imprecise and the actual intention of the donor (the critical issue) may have been ill-defined. However, where the evidence enables the Court to determine that it is a gift to one or the other or both of the parties, that is an important finding. Normally where title to a property is transferred to one or both of the parties that would be the strongest indicator of the intention of the donor.
…..
The next step is to consider the application of sec. 79 to all of the property of the parties, including property received by one or both of them by way of benefaction from a third party. Traditionally this task is performed by firstly considering the question of contributions under sec. 79(4)(a) – and then, if relevant, the sec. 75(2) factors. There is no reason to apply a different approach in relation to property having this particular history.
…
Where a gift is made solely to the donor's relative…and that spouse applies that property to the marriage, that is a direct financial contribution solely by that party and will be assessed in the ordinary way alongside other contributions by each party to the marriage. …
…..
The critical case is where a relative of one of the parties gifts property to both of the parties to that marriage. Dependent upon the circumstances of the case it is, in my view, open to Court in such a case to look at the actuality and treat that as a “financial contribution made directly ... on behalf of'” the spouse relative (see for example Rainbird, Matthews, W., Underwood, Abdullah, Freeman, cf. Cleary, Hogan J. in Freeman, and Antmann).
In many such cases that gift was made only because of that relationship and in reality as a means of benefiting that relative in that marriage. It was made “because she was a daughter of that family” as was said in W.’s case at p. 75,527.
It is clearly a “financial contribution” and one “made directly” to the acquisition, conservation and improvement of property. In such cases it is open to the Court to conclude, if the facts justify it, that it was made “on behalf of” one spouse.
In other cases the evidence, including evidence that the donor intended to benefit both spouses, may not justify that conclusion. If so, the application by the parties of that property to the marriage would, at least at that point, be an equal contribution by them.’
In Kessey & Kessey (1994) FLC 92-495 (“Kessey”) their Honours considered Gosper and held at 81,149–81,150:
… In our opinion the application of the principles enunciated in Gosper should not be so limited. Rather, those principles should be regarded as being applicable in all cases where there has been an advance of money or property by a parent (or perhaps even by some other relative) of one of the parties, to one or both of the parties (or to their property), and the circumstances of the advance cannot be categorized as a loan, or as any other recognized commercial transaction.
…
… In other words, a contribution by a parent of a party to a marriage to the property of the marriage will be taken to be a contribution made by or on behalf of the party who is the child of the parent unless there is evidence which establishes it was not the intention of the parent to benefit only his or her child.
(Emphasis in original)
In W & W [2000] FamCA 1302, the Full Court noted that Kessey:
138.… effectively puts the onus on the spouse who is not the child of the generous parent to place evidence before the Court that the parent did not intend to benefit only his or child, absent which the benefaction of the parent will be presumed to be a contribution by or on behalf of the child spouse. …
In circumstances where the source of funding is a consequence of a payment from the husband’s parents, I am satisfied that it was a contribution on behalf of the husband.
In 2011, the commercial property owned by the husband at City L was sold and the parties sustained a loss on the sale such that they have carried forward even to today a liability in relation to that loan. In 2011, the loan balance outstanding was approximately $42,000. It is now approximately $39,000.
In 2018, the parties purchased business premises for the business at M Street, City C. It was acquired in the name of E Pty Ltd, a company of which the husband and his business partners were equal shareholders. Thereafter, extensive renovations were conducted to the property.
As found earlier, the parties separated in August 2018.
The husband eventually left the home in December 2018 and upon his departure ceased to contribute his wages to the joint account of the parties, ceased to pay the home mortgage or contribute to school fees.
The husband was made redundant upon leaving D Pty Ltd and received approximately $35,000. There is no mention of this payment in either of his affidavits. He agrees he did not inform the wife that he had received this payment. This is not the only example of a failure by him to make a full and frank disclosure.
In September 2019, the husband purchased shares, albeit in his then business partner’s name, in a company called Q Company. He suggested in his affidavit that it was done to assist his brother. He says that his business partner will transfer the shares to him when he asks him to do so. The husband failed to make any disclosure in relation to this share acquisition until such time as the wife started making enquiries in relation to the withdrawal of monies. The husband agreed in cross-examination that if she had not asked about it, she would not have found out about it. It reflects poorly on his candour and his compliance with his obligations to make a full and frank disclosure.
The wife has continued since separation to make all of the mortgage payments on the City C property. The husband, however, has made the mortgage payments on the outstanding liability arising from the loss occasioned on the City L property as well as the loans over the Town K property. In that respect, on the current figures, the wife has been paying mortgage payments on a loan of approximately $250,000 whilst the husband has been paying mortgage payments on a loan of approximately $188,000. In circumstances where the wife has had occupation of the former matrimonial home, I am satisfied that there is not much difference in a contribution sense between the liability met by the husband, given that he otherwise had a rental obligation, and the liability being met by the wife where she has had the benefit of occupation. I note that there was some rental income from the Town K property, however, the paucity of evidence does not enable me to make a finding as to how much this was.
The husband conceded the wife was the primary carer of the children. In my view, the wife’s contributions in that regard were significant. I note the concession by the husband in his affidavit in reply to the following effect:
60. There was a constant argument between [Ms Hambart] and I about me present and available in the relationship, both physically and emotionally. I thought my job was to go to work and provide for my family and that was enough. In hindsight, that was not enough, and [Ms Hambart] was wanting me to be more present for our family. I realise that now, and I realise that this was the basis for a significant amount of conflict in our relationship
The natural and ordinary inference arising from that paragraph is that the husband's contributions other than in a financial sense were fairly limited. I also note that notwithstanding that the husband was in employment for all of the marriage, the wife also was in employment for significant parts of it including sometimes working two jobs when she was not otherwise on maternity leave.
In the period post-separation, I am satisfied that the husband has not been as present in the lives of the children as he otherwise might have been. The evidence reveals that in 2020 the husband left City C and moved to Queensland for approximately twelve months. The wife contends that he returned to City C sporadically. The husband said in cross-examination that he returned twice each term for blocks of five days at a time. He agreed in cross-examination that his move to Queensland meant the wife assumed a greater share of the parenting responsibility. I conclude that the wife’s contributions in the period post-separation as a parent were significantly greater than those of the husband. I also note that there appears to have been a breakdown in the relationship between the husband and his daughter X such that as and from approximately April 2021, she has spent little, if any, time with him.
At the time of separation, the wife’s income was approximately $45,000. There was no spousal maintenance paid by the husband nor was there any child support paid until the wife made an application to the Child Support Agency in January 2021. The husband did not take issue with the wife’s evidence between paragraphs 68 and 72 of her affidavit where she enumerated the payments made by the husband in the two year period between separation and the application for child support. The totality of the payments made by the husband in that 21 month period were some $21,086.05. This was an inadequate contribution to the children’s support, particularly in circumstances where he is currently assessed, according to his Financial Statement, to pay $317 per week by way of child support. The wife was otherwise left to meet the entirety of the other expense for the children including school fees, which like the mortgage, the husband stopped paying in December 2018.
I am satisfied that the wife’s financial contributions to the support of the children were significant in the period post separation. The greater burden of that cost fell to the wife given that she had the children for far greater periods of time.
FAMILY VIOLENCE
The wife's affidavit addressed a history of family violence that spanned not just the period of the relationship but also post the parties’ separation. The allegations included specific incidents involving assertions that the husband had allegedly grabbed the wife by the hair and dragged her down a hallway, shoved her against a wall, grabbed her face and pushed her, kicked her in the stomach and back, gave her a black eye, punched her in the jaw and grabbed her by the throat. She also made a series of assertions of emotional and verbal abuse including allegations that the husband had spoken to her in the most appalling of ways.
The wife’s allegations are said by her counsel to be relevant consistent with the obiter comments of the Full Court in Kennon & Kennon (1997) FLC 92-757 (“Kennon”). The adjustment arising as a consequence of allegations of family violence was addressed by their Honours in Kennon at 84-294 to the following effect:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s 79. We prefer this approach to the concept of “negative contributions” which is sometimes referred to in this discussion.
Further, at 84-294–84-295, their Honours said:
It is essential to bear in mind that the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct relating to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions). …
In Keating & Keating (2019) FLC 93-894, their Honours in the Full Court observed in regard to both the Full Court’s decision in Kennon as well as the Full Court’s decision in Spagnardi & Spagnardi [2003] FamCA 905 as follows:
39.… the Court in Spagnardi was merely reinforcing the need for there to be an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make relevant contributions. And, depending upon the nature of the violence established, in the absence of express evidence about the effect that violence had on the victim spouse's contributions, how difficult it might be for the Court to draw inferences which would establish the evidentiary nexus (see Spagnardi at [42]). …
40.In any event, the primary judge gave no consideration to the inferences that might properly be drawn from the wife’s albeit limited evidence as to the effect on her of the husband's violence taken in conjunction with her evidence of the severity of the violence...
The Full Court directs that the necessary nexus between the alleged conduct and the contributions being made significantly more arduous can be established either by direct evidence or by inference. As their Honours in the Full Court observed in Britt & Britt (2017) FLC 93-764:
74.The respondent submitted that the appellant’s evidence was not relevant to an issue because even if it was evidence of family violence, the appellant had called no evidence to suggest that the violence had made her contributions more onerous. This submission overlooks the obvious point that the court can infer from appropriate evidence that there was a nexus between the conduct and the relevant contributions.
In Benson & Drury (2020) FLC 93-998, the Full Court observed as follows:
50.… An inference is an assent to the existence of a fact which is based on the proven existence of some other fact or facts, drawn as part of the fact finding process as an exercise of ordinary powers of deduction and reason in the light of human experience, unaffected by any rule of law (G v H (1994) 181 CLR 387 at [4]). Obviously, the strength of the subject inference depends upon the quality of the underlying evidence. It must be reasonable to draw the inference from primary facts. Mere conjecture will not suffice (Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 275–278 per Spigelman CJ; Carr v Baker (1936) 36 SR (NSW) 301 at 306–307 per Jordan CJ). Importantly, the evaluation of the evidence from which the subject inference is sought to be drawn should be thorough and balanced. In the context of a Kennon argument, any factual controversies over the alleged misconduct of one spouse and its alleged deleterious consequential effects upon the other spouse should be resolved by familiar forensic techniques. Disputed but untested allegations, are not facts (Keating at [55]–[66]).
In that respect, McClelland DCJ in Giunta & Giunta (No 3) [2021] FamCA 272 said as follows:
511.By way of summary, in applying Kennon and S & S, a victim of family violence, seeking to have their circumstances considered in a family law property matter, is required to establish that their situation gives rise to an “exceptional case” where:
(1)they were the subject to a course of violent conduct during the course of the marriage;
(2) they demonstrate:
(a)the violence had a significant adverse impact upon that party’s contributions to the marriage, or
(b)the violence made his or her contributions significantly more arduous than they ought to have been;
(3)they quantify the effect of the violence on that party’s ability to contribute in terms of section 79(4)(c); and (4) they demonstrate the above by direct evidence or “where it is an obvious or very likely inference” from the facts that the violence had the requisite effect on the party’s ability to contribute to the marriage.
512.More recently, appropriately, in my view, the Full Court has taken a more expansive approach to the principles adumbrated in Kennon and S & S. In that respect, the Full Court, in S & S at [42], acknowledged that it may be possible for the Court to draw an inference that family violence perpetrated by one party to a marriage may impact upon the contributions that the other party was able to make to the property of the marriage. The Full Court held, at [45], that inference must be one that “it is obvious” or “very likely”.
513.Significantly, more recently, in Britt & Britt (2017) FLC 93–764 (“Britt”), the Full Court did not add those words of limitation to the drawing of such an inference. In that respect, at [74], the Full Court said:
The respondent submitted that the appellant’s evidence was not relevant to an issue because even if it was evidence of family violence, the appellant had called no evidence to suggest that the violence had made her contributions more onerous. This submission overlooks the obvious point that the court can infer from appropriate evidence that there was a nexus between the conduct and the relevant contributions.
514.I respectfully agree with and apply the approach taken by the Full Court in Britt, which is to be preferred to the approach taken in the earlier authorities, for the following reasons.
I also note the observations of Aldridge J in Martell & Martell [2023] FedCFamC1A 71 as follows:
22.It has to be said, that their Honours terms “exceptional” and “narrow” lose much of their force if cases involving significant violence are to be the subject of the application of the principles. Such cases might have been regarded as exceptional at the time Kennon was decided but they cannot today be so regarded. Unfortunately the prevalence of family violence is wide and artificial barriers to its recognition, such as trying to limit its recognition in property cases to exceptional or narrow cases, has no basis in principle. As I shall endeavour to explain shortly, the focus of the majority’s reasoning was on the nature and quality of the contributions themselves which were not limited by such qualifying adjectives.
23.In Kennon, the principle was identified as follows:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79.
24.For the reasons given, the words “significantly” and “more arduous” are not to be read as coterminous with “exceptional”. Rather, they arise from the basis of the principle itself which focuses on contributions. If the nature and extent of a person’s contributions are made more difficult or harder so that they should be accorded greater weight, such that they should be taken into account in the determining of the outcome, they have therefore been “significantly impacted” or made “more arduous”. The focus is not on the conduct per se, but on its effects on contributions.
25.The threshold for recognition is therefore met by conduct which has a discernible effect on the contributions of the other party such that it should be recognised in determining the respective contributions of the parties.
26.That, in my view, should be the focus and terms such as “exceptional” or “narrow”, or indeed, “onerous” add an unnecessary and unacceptable gloss suggesting that a rare and high level of impact is required and that the violence or its impact must be exceptional. That is not however, what their Honours said. All that was required was a “significant adverse impact” upon a party’s contributions. The word “significant” was used, in my opinion, as describing that the effect must be sufficient to warrant recognition but not imparting some artificial threshold. The effect of the conduct must be such that a greater weight should be given to the contributions.
27.More recent cases have softened some of the harshness of the original application of the principles identified in Kennon. For example, it is now the position that the adverse effect of the violence on the contributions of a party can be inferred from the lay evidence of the parties and that there is no need to call evidence to “quantify” that effect (Maine & Maine (2016) 56 Fam LR 500 at [47]–[52] (“Maine”); Britt & Britt (2017) FLC 93-764 at [74]–[75]; Keating & Keating (2019) FLC 93-894 at [27]–[43], [52]–[67]; Benson & Drury (2020) FLC 93-998 (“Benson & Drury”) at [47]–[50]).
28.It seems to me that regarding Kennon claims as “special” or “exceptional” is apt to mislead. In reality, all the majority said in that case was that a person’s contributions are to be assessed in the light of all of the circumstances and where those circumstances have the effect of making the contributions more difficult, onerous or arduous, that should be recognised in the assessment of contributions. That, of course, takes place in a holistic manner (Dickons v Dickons (2012) 50 Fam LR 244; Jabour & Jabour (2019) FLC 93-898).
The husband swore two affidavits in the proceedings. In the first affidavit, filed at the same time as the wife’s, under the heading of family violence, he described the relationship with the wife as “turbulent” (husband’s trial affidavit, paragraph 87). He specifically denied an incident in 2008, involving an allegation that he grabbed the wife by the hair and dragged her down a hallway as well as another incident in 2008, where it was asserted that he had shoved her into the wall. Each denial was couched in language that seemed to infer that an argument between the parties was a result of some fault or act of the wife. He described an incident where the wife hit him and, to adopt his words, “[he] never retaliated” (husband’s trial affidavit, paragraph 93). In that same affidavit, he expanded at some length in relation to a number of specific incidents that had clearly been raised earlier by the wife. He specifically records the following in his trial affidavit:
96. I am aware that [Ms Hambart] alleges that in […] 2014 I shoved her head into the passenger side window of our car during an argument. This is not what occurred. We were engaged in another argument, and I did however accidently strike [Ms Hambart] on the side of the face. [Ms Hambart] was screaming and abusing me in the passenger seat, she was pivoting left and right in the passenger seat. At some point I raised my hand in an animated fashion whilst responding to her screaming at me and unfortunately my hand hit her face. At no point was this a punch or did I intend to hit her. It was just an accident during another heated argument.
97.In […] 2018 an argument occurred between [Ms Hambart] and I in relation to her commencing a relationship with my business partner [Mr S]. [Ms Hambart] has alleged that I told her that “I want to look into her eyes while I take her life” and then [Ms Hambart] alleges that I began choking her. This is absolutely not true, and I completely deny saying those words or choking her. I recall that I confronted [Ms Hambart] about sneaking around with [Mr S]. [Ms Hambart] exploded and hit me in the face with her fist. I grabbed her by the throat to push her away. I regret that I physically had to push [Ms Hambart] away from me, however she was screaming in my face and assaulting me. I quickly removed myself from the argument.
98. I am aware that [Ms Hambart] alleges that in […] 2019 whilst she was visiting the children, I again grabbed her by the throat. I recall that I was in the kitchen cooking dinner. [Ms Hambart] confronted me in the kitchen in relation to parenting issues. She exploded into hurling abuse at me and told me that if she gets her way then she will get the kids full-time, and I won’t get to see them ever again.
99. I regrettably grabbed her by the throat to get her out of my face and told her to get out of my house.
I note the wife’s denies hitting the husband. I accept, for the reasons given below, her denial.
The wife addressed in her affidavit in excess of 30 paragraphs issues of family violence. The husband elected to swear a second affidavit, this time in reply to the wife. His affidavit in reply included absolute denials to almost all of the wife’s allegations. The only paragraphs not the subject of an absolute denial, other than the concessions referred to earlier, were the wife’s contentions in the following paragraphs. At paragraph 40 of her affidavit, the wife contended:
40. [In] December 2018, I found $10,000 in notes hidden in a suitcase when I was looking for a pair of socks for one of the children. I confronted [Mr Hambart] about this and he said words to the effect “It’s not your money. You’ve got no rights to it, give it to me”. I informed [Mr Hambart’s] father of what had happened, and an argument ensued. Whilst we were arguing on the front lawn of the house, [Mr Hambart] said to me words to the effect “You’re a cunt” in front of his mother and our children. He was extremely angry, confrontational and intimidating, and he walked towards me whilst he was saying this, as though he was going to hurt me. His brother [Mr EE] stepped in front of him and pushed [Mr Hambart] away and told him to wake up to himself. I packed up the children and left [City J] that day.
The husband’s response to this was to admit that the wife had found $10,000 in a suitcase, being part of the money that he had removed from the bank. He contended that there was an argument and that he told the wife that she could not have the money. The husband otherwise did not respond to the wife’s allegations despite having an opportunity to do so. The wife was not cross-examined on this paragraph or that she found the husband to be intimidating and that she feared being hurt.
Counsel for the husband seemed to suggest that the wife should have called various witnesses to support her case and contended that a Jones v Dunkel (1959) 101 CLR 298 (“Jones v Dunkel”) inference should be drawn against the wife in not calling various witnesses. I reject that submission by the husband’s counsel. The Jones v Dunkel inference does not run against the wife.
In Cubillo v Commonwealth (No 2) (2000) 103 FCR 1, O’Loughlin J said as follows:
353. A party who, without explanation, fails to call, as a witness, a person whom he or she might reasonably be expected to call, can attract the application of the principle enunciated by Windeyer J in Jones v Dunkel (1959) 101 CLR 298. Both the applicants and the Commonwealth seek to invoke the rule as a result of the absence of witnesses who were said to be material witnesses. While it is possible to state the rule in general terms, its application must be considered with regard to each situation in which a witness is alleged to be absent; the rule is not to be used to complete gaps in the evidence or to convert conjecture into inference. The rule is that the unexplained failure of a party to give evidence may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party’s case, so entitling a court the more readily to draw an inference against that party which might otherwise fairly be drawn from the evidence which was adduced. In essence, an inference may be drawn contrary to the interests of a party who, although having it within his or her power to provide or give evidence on some issue, declines to do so.
354. That principle has recently been succinctly stated by the High Court in RPS v R (2000) 168 ALR 729 at 737:
In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party’s camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party’s case [Jones v Dunkel (1959) 101 CLR 298 at 312 per Windeyer J] and that [(1959) 101 CLR 298 at 312 per Menzies J]:
“. . . where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.”
The person naturally expected to call the witnesses in the incident referred to by the wife at paragraph 40 was the husband. He did not. I draw the inference that if he had called his mother and his brother, their evidence would not have assisted him.
Otherwise, the wife at paragraph 44 gave quite graphic evidence of being significantly frightened by the husband’s behaviour:
44. Following his release, I observed [Mr Hambart’s] behaviour to continue to be irrational and demanding. On a number of occasions, he demanded that I return engagement and wedding rings to him and there was a particular occasion where at 8-9 pm at night and the children were in bed. [Mr Hambart] had been texting me continuously. In one of those messages, he said something like “I want your rings and I am coming around to get them now” followed by a message “Will you bring them out or am I coming in to get them?”. I was really frightened and nervous. I moved all the kids into the main bedroom as it has trench doors to the outside in case I needed to get them out of the house. I turned off all the lights and sat on the floor in [X’s] room at the front of the house. I phoned my brother who lived around the corner and asked him to come and stay in case [Mr Hambart] turned up. I really felt like he was going to hurt me and that I needed to get my affairs in order. Even though I felt such fear, I still didn’t report it to the police as I was so scared about the repercussions. I was humiliated and embarrassed that this was happening, and I was frozen by fear.
The husband’s response to that paragraph in his affidavit in reply is in the following terms:
26. In response to paragraph 44, I absolutely deny that I ever threatened or went to the house to collect the rings from [Ms Hambart]. I did request she give them back to me on a number of occasions though.
The texts sent by the husband were not in issue. The wife clearly interpreted them as threatening. The wife was not cross-examined about her response to the receipt of the husband’s texts.
I found the wife a convincing and truthful witness. No part of her evidence was impeached in cross-examination. The husband had an air of insouciance in response to many questions which was neither convincing nor persuasive. He was also found wanting on matters of history and at other times was flippant and dismissive in answering questions in cross-examination. I prefer the wife’s evidence to that of the husband and I am satisfied that there were incidents of family violence during the relationship and in the post separation period perpetrated by the husband on the wife. I accept that the wife was bullied and intimidated by the husband.
I also accept the unchallenged evidence of the wife as to the effect of the husband’s behaviour on her in the two incidents referred to above. The wife’s evidence in each incident, one occurring in 2018 and the other in 2019, graphically demonstrate the impact of the husband’s behaviour on the wife. I also note that notwithstanding the husband contending that the incident that occurred in 2014 was an accident, what the husband and the wife both describe is a significant incidence of family violence. It does not take much to infer in light of the wife’s response to the above incidents how being grabbed by the throat would have impacted upon her.
I am satisfied that there is both direct evidence of the impact of the husband’s behaviour on the wife’s contributions and there is evidence as referred to above from which I can infer that those incidents would have impacted significantly and adversely on her capacity to parent the children and make otherwise her contributions more onerous. I am comfortably satisfied that a parent who describes the other parent’s behaviour in front of the children as angry, confronting and intimidating and is fearful that they are going to be hurt, will find the discharge of their contributions that much more arduous and onerous than it would otherwise be absent such behaviour. Likewise, I am satisfied that a mother who in the course of her contributions as a parent has to cower in the home, turn off the lights and sit on the floor in one of the children’s bedrooms, fearful that she is going to be hurt, is going to find the making of her contributions significantly more arduous in such circumstances.
In Norris v Brooks [2002] NSWSC 804, Robb J observed as follows:
482. A judge hearing a case like these family law proceedings should have the emotional empathy necessary to make a reasonable assessment of the subjective effect of family violence, where the effect of that violence is not as obvious as, say, the result of debilitating physical injury. The work of caring for and nurturing the physical and emotional needs of children and the general maintenance of a household may be made significantly more adverse if it has to be undertaken in a state of fear, depression, uncertainty or self-doubt. So much is a matter of general human understanding.
I respectfully agree with his Honour’s observations.
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).
Weighing all of these matters in the balance, I am satisfied that an adjustment is warranted in favour of the wife in relation to her ongoing role in relation to caring for the children and for the financial impact on the parties by the husband’s email as identified in the trustee’s correspondence. The husband’s counsel conceded a 5 per cent adjustment (but made no concession in relation to matters of conduct) whereas the wife’s senior counsel contended it should be 20 per cent if there were no addback. Having regard to the above matters, I am satisfied that a 13 per cent adjustment is warranted in favour of the wife for her ongoing caring responsibilities for the parties three children and as a result of the husband’s conduct.
The result is that the pool of assets will be divided as to 58 per cent to the wife and 42 per cent to the husband.
Accordingly, having regard to the pool of assets as found by me, which comprises property having a net value of $1,927,401.10. Fifty eight per cent of that to the wife is a sum of $1,117,892.60. There was no issue that the wife would retain the City C property subject to its mortgage. Taking that into account, the assets to be retained by the wife including superannuation have a value of $1,273,664.20
This means that the wife will need to make a payment to the husband of $155,771.60. I will order this be paid from her share of the proceeds of D Pty Ltd.
The wife will also receive 58 per cent of the funds held by the solicitors from the sale of the parties’ interest in D Pty Ltd less the amount to be paid to the husband.
Having regard to the effect of the property distribution in monetary terms, I am of the view that this constitutes a just and equitable outcome.
I will make orders accordingly.
I certify that the preceding one hundred and fifty-three (153]) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 2 August 2023
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