Hamza and Hamza

FAMILY COURT OF AUSTRALIA

HAMZA & HAMZA

[2020] FamCA 333

FAMILY LAW – PROPERTY – Where the wife seeks that she receive 80 percent of the asset pool – Where the husband seeks that he receive 40 percent of the asset pool – Where the parties agree that contributions during the parties’ relationship were equal – Where the parties dispute the adjustment that should be made for post separation contributions and factors set out in section 75(2) of the Family Law Act 1975 (Cth) – Issue as to the husband’s full and frank disclosure – Where adjustment made to account for the wife’s significant parenting contribution post separation and her ongoing responsibilities for the parties’ children – Where orders made that the wife receive 70 percent and the husband 30 percent of the asset pool.

Family Law Act 1975 (Cth) ss 75, 79

Bevan & Bevan [2013] FamCAFC 116
Brandt & Brandt (1997) FLC 92-758
Clauson & Clauson [1995] FamCA 10; (1995) FLC 92-595; 18 Fam LR 693
Stanford v Stanford (2012) 247 CLR 108
Trask & Westlake [2015] FamCAFC 160
Trevi & Trevi [2018] FamCAFC 173
Wayne & Wayne [2010] FamCAFC 33

APPLICANT:

Ms Hamza

RESPONDENT:

Mr Hamza

FILE NUMBER:

PAC

3182

2016

DATE DELIVERED:

7 May 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

29 - 30 August 2019, 13 December 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Browns the Family Lawyers

SOLICITOR FOR THE RESPONDENT:

ZRA Lawyers

Orders

That the wife pay the husband the sum of $88,962 within two months of the date of these orders and upon the payment of the sum the husband transfer his interest in the home at C Road, Suburb B, New South Wales to the wife.
That except as otherwise specified in these orders, each party be declared the sole owner in law and equity of all items of property and financial resources presently in their respective names, possession or control and that this term shall be taken to include all superannuation entitlements and life insurance policies presently in their respective names.
In the event that either party refuses or neglects to execute any deed or instrument required to give effect to these orders, the Registrar of the Court or their appointee pursuant to section 106A of the Family Law Act 1975 (Cth) may execute such deed or instrument in the name of such party and do all acts and things necessary to give validity to the operation of such deed or instrument.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hamza & Hamza has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3182 of 2016

Ms Hamza

Applicant

And

Mr Hamza

Respondent

REASONS FOR JUDGMENT

Introduction

This judgment concerns an application for adjustment of property interests arising from the breakdown of the parties’ marriage of almost 16 years. The dispute involves a small pool of property with the only assets of value being the former family home and the husband’s business.
The main issue in dispute is the question of who should retain the former family home as both parties seek to retain this asset and pay the other his or her respective entitlement.
The parties agree that the contributions they each made to their property interests and the welfare of the family and children when their marriage was intact are equal. The dispute centres on contributions made by the parties after separation and an appropriate adjustment if any on the basis of factors set out in section 75 (2) of the Family Law Act 1975 (“the Act”).
The parties also agree that it is just and equitable that there be an adjustment to their property interests in favour of the wife. The husband contends that this adjustment should result in the wife receiving a 60 percent interest in their property while the wife contends that it should be 80 percent in her favour.
I am to determine a just and equitable adjustment of the parties’ property interests.

Background

While the parties contend that they made equal contributions to their property and the welfare of their family and children prior to separation it is appropriate to briefly consider the history of the relationship so that I can be satisfied that contributions up until separation should be treated in this manner and for the purposes of considering the parties’ respective contentions as to the matters in dispute.
The wife who is 37 and the husband who is 41 married in their country of birth in 2000.
At the time of marriage, neither party had any assets of significance other than the wife having about $5,000 in savings.
The parties moved to Australia in August 2001 and initially lived with the husband’s sister until they gained rented accommodation in December of the same year.
The husband gained employment as a tradesperson in November 2001 earning around $450 a week in this role. In 2005 the husband moved to a similar role earning between $600 - $800 weekly.
Since 2010 the husband has been self-employed in a trade business (“the business”).
In the early years of their marriage, prior to purchasing any real property the husband was solely responsible for the payment of rent and living expenses from his income.
During the course of the relationship, the parties had four children. The oldest child was born in 2002 and is currently 17. The next child born in 2009 is almost 11 years old. The other children are aged two and four. The mother at all times was primarily responsible for the care of the children and the household.
In 2009 the parties purchased a property in F Town (“the F Town property”). The wife contributed $10,000 - $20,000 to the deposit from her savings and the husband contributed $7,000 - $10,000. Thereafter the husband was responsible for the mortgage repayments and the wife was responsible for other expenses such as those relating to the children’s schooling and their day to day needs.
The parties sold the F Town property in 2011 receiving approximately $100,000 in net sale proceeds.
Between $15,000 and $30,000 of the sale proceeds from the F Town property was used by the parties on an overseas trip. The balance was used in part-payment for land upon which the parties built a house which became the family home (“the former family home”).
The land upon which the former family home was built cost around $270,000 and the building costs were about $250,000. The wife’s father loaned the parties $200,000 to assist them obtain this home, which has since been repaid.
The wife had some periods of employment during the relationship which she balanced with her primary parenting responsibilities. During some brief periods of separation throughout the relationship (two periods of separation of two months and two periods of separation of two weeks) she obtained employment to support herself and the children. In summary, the wife’s periods of work were as follows:
·    In 2004 she worked part time for 15 hours per week. It is unclear how long she engaged in this work but it appears to have been for a period of less than a year. The husband deposes that the wife earned $100-$150 weekly in this role.
·    She returned to employment in 2007 and remained in this employment for six months. The husband deposes that she earned $500-$600 a week in this role.
·    From 2008-2009 she worked full time.
·    From 2009 (after the birth of the second child) she worked part time until 2011. The husband deposes that the wife earnt $600-$700 per week in this role.
The wife has not been employed since 2011. She engaged in part time tertiary study from 2010- 2013 but did not complete this degree after becoming pregnant with the third child.
The wife was primarily responsible for the homemaker duties during the relationship. The husband assisted with the care of the children by cooking some meals and taking the children out for activities.
In June 2016 the parties separated and the children lived with the wife except for some very brief periods when two of the children lived with or were retained by the husband.
Following separation, the husband withdrew $37,000 from the mortgage account for the former family home. He claimed to have used these funds towards the payment of the mortgage and other bills. The wife lodged a claim against the bank to the Ombudsman for having allowed the withdrawal of funds without her signature and received $17,496 in compensation from the bank.
Proceedings were initially commenced by the wife in July 2016 but she subsequently discontinued this application. The wife then recommenced the proceedings in November 2016 seeking property and parenting orders.
On 5 June 2017 the parties participated in a conciliation conference but were unable to resolve their dispute.
In April 2018 the husband paid $13,200 for various renovations to the former family home including repairing damage to floors and walls.
In June 2018 the parties were divorced. In the same month the husband married a woman in a ceremony in an overseas country who is yet to receive a visa to live in Australia.
In July 2018 at a further court event as the parties appeared willing to have a further attempt to resolve the property dispute through mediation directions were made for that to occur through an external agency.
By December 2018, as the parties had been unable to resolve the dispute directions were made to ready the proceedings for final trial in relation to property and parenting.
In May 2019, with the consent of the parties, orders were made resolving the parenting dispute. These orders provided for the children to live with the wife and spend time with the husband initially during the day each alternate Sunday increasing to time on each alternate weekend and one week night conditional upon him completing certain parenting courses. Orders were made that the wife have sole parental responsibility for the children in relation to decisions relating to their health and education and the parties have equal shared parental responsibility for all other issues.
The wife currently lives in a rented three bedroom house with the children. She is currently unemployed and is studying part time at university and anticipates completing her degree at the end of 2022.
The husband remains living alone in the former family home but intends living there with his new wife when she is granted the appropriate visa to live in Australia. I understand that the husband continues to operate his business.

The Law & Discussion

The approach to the determination of an application for property settlement orders is set out in Stanford v Stanford[1], which was considered in detail by the Full Court in Bevan & Bevan[2].
[1] (2012) 247 CLR 108
[2] [2013] FamCAFC 116
The starting point is a consideration of “whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles the existing legal and equitable interests of the parties in the property”[3].
[3] Stanford & Stanford (2012) 247 CLR 108 at [37].
This involves identifying the existing interests and then considering whether having regard to the particular circumstances before me, it would be just and fair to make orders for the alteration of property interests.
I should next consider the matters set out in s 79(4)(a) to (c) of the Family Law Act 1975 (Cth) (“the Act”), that is the financial and non-financial contribution made by the parties to the property and to the welfare of the family constituted by the parties.
I must then consider the remainder of the matters in s 79(4) including the matters referred to in sub-section 75(2) so far as they are relevant, and determine on this basis whether there should be a further adjustment to the parties’ contribution-based entitlements.
Finally, I must then consider the justice and equity of the proposed orders. As was said in Bevan (supra) at [86], the just and equitable requirements is “not a threshold issue, but rather one permeating the entire process”.

What are the existing interests of the parties?

There is agreement between the parties concerning that the assets and liabilities for distribution though there is some dispute concerning valuation. In summary their only assets are their family home (valued at $840,000), the business and two vehicles. Their only liability is a mortgage of $370,000 and each party has a very modest superannuation interest.
The main dispute between the parties concerns the value of the husband’s business. The wife attributes a value to the business of $58,618.36 which represents the net assets/total equity of the business in the business’ 2017 Balance Sheet. It was brought to the attention of the wife that a substantial portion of the business’ assets were unsecured loans and that 2018 Balance Sheet revealed that loans had decreased in the 2018 financial year (and hence the overall total equity). The value of the net assets/total equity for the 2018 financial year was $41,272.31.
The husband asserts a value of $10,000 for the business. The only submission he makes to support such a value is that the plant and equipment of the business is recorded at a cost value of $7,500 in the business’ Balance Sheet which he says is “more in line with the husband’s valuation”. The husband fails to explain how he arrives at the value of $10,000 (as the depreciated value of the plant and equipment is now $2,157). Of significance there is no basis upon which he disregards the value of unsecured loans ($37,653) listed as assets in the Balance Sheet of the business for 2018. In the absence of any further evidence, I consider it appropriate in the circumstances to attribute the business its 2018 value in the business’ Balance Sheet prepared by an accountant of $41,272.
The parties also are in dispute about the value to be attributed to the wife’s Motor Vehicle 1. The wife contends for a value of $8,000 in her Amended Financial Statement filed 25 July 2019 relied upon in the proceedings. The husband deposes that the Motor Vehicle 1 was purchased for $18,000 and contends that it should be attributed a value of $15,000. He does not produce any evidence as to the current value of the vehicle and rightly contends that “the disagreement is modest, and based on anecdotal rather than empirical evidence on both sides”. In the absence of any valuation evidence the value attributed to the vehicle in the wife’s Financial Statement of $8,000 is adopted.
The wife contends that the parties’ superannuation should not be included in the assets for distribution given the modest amounts accumulated by each party ($5,800 for the husband and $12,490 for her) and the age of the parties such that any such funds will not available to them for many years. The husband also seems to accept that the parties’ respective superannuation entitlements should not be included in the asset pool available for distribution as in his final written submissions he sets out the proposed assets available for distribution “having regard to the wife’s submissions” which do not include either parties’ superannuation interest. I consider that it is appropriate to note the superannuation interests of the parties at the outset only for the purposes of determining their current property interests.
Another version of the joint Balance Sheet also included some cash at bank in an account in the wife’s name and an account in joint names and household contents. In her final written submissions the wife contended that these items should not be treated as property in the hands of the parties as these items are of minimal value and each party has a more or less equal share of these sundry items. It seems that the husband also adopts this approach after having regard to the wife’s submissions as he does not address or include these items where he sets out his proposed assets for distribution in his final written submissions.
The question to be determined is whether it would be just and equitable to leave the property rights intact having regard to there currently being total assets to the value of $538,272 with the husband’s interests totalling $295,272 and the wife’s interests totalling $243,000.
As was indicated in Stanford (supra) the requirement that it would be just and equitable to make an order is in many cases readily satisfied by observing that at [42]:
… as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. … any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marriage relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the Court make a property settlement order. …
In this case, the parties were married for almost 16 years before separating. All of their assets were acquired during the relationship. The husband worked consistently throughout the parties’ relationship and the wife worked on and off depending on her homemaker and caregiver responsibilities at various points in time. Both parties have accepted since separation that there has not been any common use of their property and they accept this will continue in the future. They both seek adjustment orders and both agree it should favour the wife but are unable to agree to the adjustment. In these circumstances I am satisfied that it is just and equitable to make orders under s 79 of the Act.

Addbacks

Both parties agree legal fees should be left off the balance sheet as each of them borrowed funds from relatives for this purpose.
Both parties agree that the money redrawn by the husband from mortgage account shortly after separation should be “added back” to the property for distribution and credited to the husband. However, neither party contended that the entire $37,000 withdrawn by the husband should be added back and credited to him in circumstances where the wife received $17,496 in compensation from the bank for having allowed this withdrawal of funds from a joint account without her signature.
In the course of an exchange between the legal representatives and the bench, it was suggested to the parties that it may be appropriate to consider adding back half of the money withdrawn by the husband given that the wife received roughly one half of the total withdrawn by the husband as compensation from the bank. Neither party submitted that this was an inappropriate way of dealing with the matter and both parties now agree that only $17,496 should be added back to the pool. The wife submitted that even though this errs on the side of generosity to the husband who has had the benefit of more than half of the sums withdrawn (ie $37,000 - $17,496 (agreed addback amount) = $19,504), this should be the way the Court approaches the issue.
The authorities[4] make it clear that the Court has the discretion to add back certain sums in particular circumstances.
[4] See Trevi & Trevi [2018] FamCAFC 173 (“Trevi”) particularly at [27] – [30] and the cases cited therein.
In Trevi, a recent Full Court decision, at paragraph [27] Murphy J said:
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. (footnotes omitted)

The Full Court went on to affirm “the fundamental precept that addbacks are exceptional”, the “fundamental premise” that adding back is a discretionary exercise and that in cases which are not “exceptional” justice and equity can be achieved not by adding back but by other means such as through the exercise of a different discretion “such as under 75(2) or as part of the assessment of contributions.”
I am satisfied that the husband’s withdrawal of $37,000 should be added back but only roughly half given the wife’s compensation payment as contended by both parties so as to do justice and equity between the parties.
On the basis of those findings, the interests of the parties for the purposes of distribution are set out in the following table:

LIST OF ASSETS AND LIABILITIES
ASSET	HUSBAND	WIFE		JOINT
Former family home	$840,000
Motor Vehicle 2	$19,000
The Business	$41,272
Motor Vehicle 1 vehicle	$8,000
Add back: money re-drawn from mortgage	$17,496
Total Assets	$77,768	$8,000		$840,000
LIABILITIES	HUSBAND	WIFE	JOINT
Mortgage over Suburb B property	$370,000
Total Liabilities	$370,000
TOTAL NET ASSETS	$77,768	$8,000		$470,000
TOTAL	$555,768

Contributions

Under s 79(4) of the Act, in considering what order should be made in property settlement proceedings, I must take into account the financial and non-financial contributions directly or indirectly made to the acquisition, conservation or improvement of any of the property of the parties and the contributions made to the welfare of the family and the children, including contributions as a homemaker or parent.
Both parties agree that their contributions during the relationship up until separation should be assessed as equal. Having regard to the history of their relationship as outlined above, I am satisfied that the parties’ contributions up until separation should be regarded as equal.
The wife contends that a 10 per cent adjustment should be made in her favour for post separation contributions in her care of the parties’ four children. She relies on the Full Court decision in Trask & Westlake[5] to support the making of an adjustment of this magnitude for her ongoing care of the parties’ four children for three and a half years following separation “with little by way of financial or other assistance from the husband”.
[5] [2015] FamCAFC 160. In Trask & Westlake the Full Court referred to the notion “…that the contribution of the homemaker and parent ceases upon the separation of the parties…” involves “… a serious misreading of s 79(4)(c)” as stated in Ferraro & Ferraro (1993) FLC 92-335, 79,568 which cited Williams & Williams (1984) FLC 91 -541 at 79,387 (Full Court); (1985) FLC 91 -628 (High Court).
Following separation the parties’ four children for the most part lived with the wife except for two very short periods. Immediately following separation the oldest child lived with the husband for around one month and for a period of just over a week the second youngest child lived with the husband. The final orders made with the consent of the parties on 15 May 2019 continued the wife’s primary care of the children with the husband’s time being only one day a fortnight to graduate to each alternate weekend and one week night upon his completion of certain parenting courses.
The issue of financial support for the children following separation is approached by the parties as a matter of “child support”. It is the wife’s case that she has not received any financial support for the children from the husband since separation. He deposes to paying $21,500 through “private child support” since separation.
For a very short period of some weeks there was a Child Support Assessment in place commencing in August 2016 but the wife subsequently requested that the Child Support Agency (“CSA”) not collect child support on her behalf. In any event, the wife says she did not ever receive any money pursuant to this Assessment.
The husband contends that given the lack of communication between he and the wife, after he was informed that the CSA would no longer collect child support he has continued to indirectly pay child support of by giving money directly to the children, purchasing groceries, school supplies and paying for two of the children’s haircuts. He annexes various receipts which he contends evidence his payment of these sums which he describes as “invoices for the private child support”.
A single invoice in respect of school fees for one child in the sum of $350 paid in January 2017 is the only document from which any sense can be gleaned. The balance of the documents are machine generated/cash register receipts or dockets for household items and food including in particular confectionary. Some of the documents are illegible. There is no evidence other than the husband’s assertions that the items to which the receipts relate were given to the wife and she denies having received groceries from the husband. When it was put to the wife under cross-examination that the children would often bring home groceries after spending time with the father she explained that sometimes the children would come home with lollies and “a lot of junk food” and occasionally some fruit but not groceries for the family.
The wife also acknowledged that she was aware the husband paid the children pocket money from time to time but wasn’t aware of the exact amounts paid. When asked under cross examination the wife also acknowledged that the children would sometimes come home with haircuts after spending time with the father and accepted that the father had paid for driving lessons for one of the children. When it was put to the wife that the husband had purchased school uniforms for the children, the wife conceded that the children had come home with some school items including stationary and one of the children returned with school shoes on one occasion. The wife maintained however that these were not items the children needed and she denied when asked having ever asked the husband to purchase school related items for the children.
The husband contends that his contributions to the children in these ways have far exceeded the Child Support Assessment that was previously in place.
I cannot be satisfied on the basis of cash register receipts and similar documents that the father has provided the level of financial support to the children since separation as he contends. I am satisfied that he bought confectionary or treats for the children from time to time as the wife concedes that this was the case. I am also satisfied that he occasionally paid for some items such as school stationery and haircuts and from time to time gave the children small amounts in pocket money. I do not however regard these payments as amounting to any meaningful level of child support for the children. It is clear that the wife alone bore the major financial costs associated with the care of the parties’ children such as rent for their home, food, clothing and household bills.
Following separation the husband continued to pay the mortgage but he alone also continued to have the benefit of living in the former family home. The husband submits that he should be credited with this contribution “for paying for and maintaining a property that is significantly more than he requires”. Such a submission is curious in circumstances where the wife was required to find and pay for alternate accommodation for the children.
Having regard to the foregoing I assess that the post-separation financial and non-financial contributions as favouring the wife and make an adjustment to her overall contributions in her favour of five percent on that basis.

Section 75(2) Factors

The husband is 41 years old and in the absence of evidence otherwise is presumably of good health. The wife is 37 years old currently in good health.
The wife has the primary care of the four children pursuant to the final parenting orders which provide that they are to spend time with the father on an increasing basis with the final arrangement of three nights each fortnight commencing February 2021, so long as he completes particular parenting courses. The youngest two children are currently only four and six years old. The older two children are currently 11 and 17. The wife will have a significant parenting obligation for at least another decade.
The wife currently relies on a government parenting payment and family tax benefit as her sole source of income. She is currently studying and hopes to have completed her study and be in employment by 2023.
The husband submits that he currently does and will continue to earn a modest income and does not have a significant earning potential. He submits that once the wife obtains her qualifications she will have a superior income to him. The amount that each of the parties may earn in the future is a matter of speculation but I can be satisfied that each has a capacity for gainful employment.
Given the husband’s prior minimal level of financial support for the children (which he regarded as appropriate) I consider it unlikely that he will pay anything other than nominal financial support to the wife for the children in the future.
It is also important to take into account what the Full Court had to say in Brandt & Brandt[6] with respect to evaluating section 75(2) factors in a case such as this:
It is proper to take into account the economic ramifications of having responsibility for the children and the quasi-economic contributions involved in raising children which include washing, ironing, cooking and the like. It is appropriate to bear in mind salary and income opportunity forgone because of responsibilities to children. It is appropriate to recognise that such responsibilities involve sacrificing leisure and recreation time.
[6] (1997) FLC 92-758.

Non-disclosure

The wife contends that the husband’s non-disclosure should be taken into account in determining the s 75(2) adjustment. She asserts that he has failed to provide adequate disclosure in relation to his income and invites the Court to draw an inference about his likely income.
First, it emerged under cross examination that the husband had two bank accounts that he had not disclosed in his Financial Statement. The wife also contends that there are inconsistencies in the husband’s evidence given he discloses in his latest Financial Statement weekly expenditure that exceeds his income yet otherwise asserts that he provides financial support to the children which is not included in his Financial Statement.
It is contended on the husband’s behalf that his expenditure which apparently exceeds his income may be explained by his evidence that the $37,000 withdrawn from the mortgage account was used to pay “the home loan, credit cards and other liabilities related to the home” which he continues to pay. The difficulty with this contended explanation for this inconsistency is that he does not depose to such an explanation. Further this withdrawal was made almost four years ago and does not appear to have any apparent connection with current expenditure.
While I can make no specific findings in relation to the husband’s income as a result of this non-disclosure it can be inferred that it is inevitable he has other sources of undisclosed income if his evidence concerning expenditure is to be accepted.
The husband accepts that an adjustment should be made for s 75(2) factors in favour of the wife, and contends that 10 percent is an appropriate amount. He also submits that at best, the wife’s overall entitlement to the asset pool should be 65 percent, which even on his case would represent a 15 percent adjustment for s 75(2) factors.
The wife seeks a 20 percent adjustment for s 75(2) factors. She contends that the Court should take into account the real value of any adjustment[7] and that given the modest size of the asset pool, a 10 percent adjustment represents only about $50,000. It is her case that the modest size of the asset pool supports the making of an adjustment in her favour of a greater magnitude than contended for by the husband.
[7]Clauson & Clauson [1995] FamCA 10; (1995) FLC 92-595; 18 Fam LR 693 (“Clauson”)
The authorities support that an appropriate way to consider the justice and equity of each the proposal of each party is by reference to the dollar amount contended for[8]. In my view the size of the asset pool does mean that the ten per cent adjustment contended for by the husband in favour of the wife is modest. Equally, an adjustment that would see the wife receive 80 per cent of the parties’ property does not in my view appropriately reflect the husband’s contribution based entitlement.
[8] See Clauson and Wayne & Wayne [2010] FamCAFC 33.
Having regard to the foregoing relevant section 75(2) matters I am satisfied that an adjustment of 15 per cent in the wife’s favour is proper.

Conclusion

The final orders will see the wife receive 70 per cent and the husband receive 30 per cent of the total pool of assets. This distribution recognises the past contribution of the parties and an appropriate adjustment for the future.
The wife’s 70 per cent interest equals $389,038 and the husband’s 30 percent interest comes to $166,730.

Final property orders

As noted each of the parties seeks to retain the former family home. In my view it is appropriate that the wife retain this property given that it was submitted by the husband to be larger than appropriate to meet his needs and the wife has herself and four children to house. Further, there was specific evidence of the wife’s capacity to buy out the husband’s interest in this property and she is to receive a greater overall interest in the parties’ property than the husband.
The wife is to retain:
The former family home   $         840,000
Less: Mortgage   $         370,000
Motor Vehicle 1   $            8,000
Total:  $         478,000
The husband will retain/has already had the benefit of:
D Business   $            41,272
Motor Vehicle 2   $            19,000
Money redrawn from mortgage:            $            17,496
Total:   $            77,768
The wife will be required to pay the husband a sum of $88,962 to maintain her percentage based entitlement to the assets. I am satisfied that she has a capacity to pay this amount as she relies on an affidavit of her father in which he deposes that he could lend her up to $200,000 to assist her with paying the husband his share of the matrimonial assets. The wife’s father also deposes that he would be prepared to be guarantor of any loan taken out by the wife.
The wife also proposes orders that in the event she is unable to pay the husband his entitlement or discharge the mortgage within the time given the property be sold by auction at which both parties be at liberty to bid. In my view these orders are not proper and if they were to be made there is a real risk that an injustice may occur. Under the orders proposed the wife in effect has the capacity to cause the former family home to be sold by auction (and potentially to purchase the property at auction) by not making the payment to buy out the husband’s interest in the specified time. In circumstances where the wife’s case is that she wishes to retain the house and has the capacity to raise funds to buy out the husband’s interest it does not seem proper to make an order which in effect gives her alone the option to cause the property to be sold. Further, the way in which the cases were run by both parties meant that their contended percentage entitlement and the sum required to buy out the other party’s interest was calculated on the basis of the house having an agreed value of $840,000. If the wife causes the property to be sold at auction by non-payment of the required sum a different sum may be realised. If this were to occur under the proposed orders the parties would receive a different percentage entitlement to that assessed as just and equitable in the proceedings. For these reasons I decline to make the additional orders proposed by the wife.
The orders that I make are as set out at the forefront of these Reasons for Judgment.

.I certify that the preceding eighty nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 7 May 2020.

Associate:

Date: 7 May 2020

[2020] FamCA 333

7 May 2020

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Family Law

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