HANLEN & KIME
[2017] FamCA 782
•29 September 2017
FAMILY COURT OF AUSTRALIA
| HANLEN & KIME | [2017] FamCA 782 |
| FAMILY LAW – PROPERTY – Where an application was made by the wife for an adjustment of property interests between her and the husband – Where the parties were married for 19 years - Where a one pool approach was adopted - Where the wife’s contributions were assessed at 60 per cent of the overall contributions – Consideration of s 75(2) factors – Where the wife was found to have a greater earning capacity – Final orders made for the asset pool to be divided 52.5 per cent to the wife and 47.5 per cent to the husband |
| Family Law Act 1975 (Cth) ss 75, 79 |
| Aleksovski and Aleksovski (1996) FLC 92-705 In the Marriage of Zyk (1995) FLC 92-644 In the Marriage ofRobb(1995) FLC 92-555 | ||
| APPLICANT: | Ms Hanlen | |
| RESPONDENT: | Mr Kime |
| FILE NUMBER: | SYC | 4397 | of | 2013 |
| DATE DELIVERED: | 29 September 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATES: | 27 - 28 October 2016, 15 June 2017 and 29 August 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Dura |
| SOLICITOR FOR THE APPLICANT: | Moisson Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Campton SC |
| SOLICITOR FOR THE RESPONDENT: | Pigdon Norgate Family Lawyers |
Orders
All previous financial orders are discharged.
Within seven days, the parties do all things and sign all documents necessary to distribute the funds held in the ANZ Premium Cash Management Account BSB … Account no. …99 to the husband and to close the account.
Within two months or such other period as the parties may agree upon in writing the wife shall pay to the husband or as he may direct, $428,103.
If the wife fails to comply with Order (3) within the time specified or agreed, she shall forthwith do all things and sign all documents necessary to sell the property at B Street, Suburb C in the State of New South Wales and being the whole of the land in Folio Identifiers … and … (“Suburb C property”).
In order to give effect to Order (4), within 14 days from the date of default of Order (3), the wife shall list the Suburb C property for sale.
Simultaneously with the settlement of the sale of the Suburb C property, the wife do all acts and things and sign all documents necessary to cause the payment of the proceeds of sale to be paid, in the following order and priority:
(a)to pay all amounts necessary to discharge the mortgage secured by the Suburb C property, being registered mortgage number …98, including any arrears;
(b)to pay all costs and expenses of the sale of the Suburb C property including legal costs and disbursements, agents’ commission, valuer’s fees, advertising and sale expenses;
(c)to pay all amounts necessary to discharge all outstanding rates, electricity or other service accounts in respect of any service provided to the Suburb C property outstanding as at the date of completion of the sale of the Suburb C property;
(d)to pay the remaining proceeds of sale as to:
i.$428,103 to the husband; and
ii.the balance to the wife.
The wife shall retain her superannuation interests.
The husband shall retain his superannuation interests.
Subject to any other order to the contrary, the wife be solely, legally and beneficially entitled to the exclusion of the husband, to all other real and personal property of whatsoever nature and kind in her respective ownership, possession and/or control as at the date of these Orders, including but not limited to, the Suburb C property, money on deposit, shareholdings, insurance policies, motor vehicles and personal effects.
Subject to any other order to the contrary, the husband be solely, legally and beneficially entitled to the exclusion of the wife, to all other real and personal property of whatsoever nature and kind in his respective ownership, possession and/or control as at the date of these Orders, including but not limited to, money on deposit, shareholdings, insurance policies, motor vehicles, shareholdings in the companies and personal effects.
Subject to any other order to the contrary, as and from the date of these Orders, each party mutually releases the other from all debts, claims, actions, suits or demands of whatsoever nature owing from one to the other party, whether past, present or future
Each party is at liberty to apply to re-list the matter within 28 days and on seven days written notice to the other and the Court in respect of the implementation of these Orders.
In default of either or both the husband and wife doing all such things and executing all such documents as may be needed to comply with these Orders within the time provided:
(a)a Registrar of the Sydney Registry of the Family Court of Australia be authorised to do all such acts and things and execute all such documents on behalf of any defaulting party; and
(b)if either party procures compliance with this order by obtaining execution of documents pursuant to this order, then the party procuring such execution of documents will be indemnified by the defaulting party for his or her costs and expenses incurred in obtaining such compliance.
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 Hanlen & Kime 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 SYDNEY |
FILE NUMBER: SYC4397 of 2013
| Ms Hanlen |
Applicant
And
| Mr Kime |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings in relation to property settlement in the context of a marriage that involved cohabitation for approximately 19 years. Both parties seek a property settlement. Ms Hanlen (“the wife”) seeks that the parties retain what they have and responsibility for what they owe and that a jointly owned fund be divided as $861,525 to her and $75,304 to Mr Kime (“the husband”). The different orders sought by the husband involve him retaining all of that jointly owned fund and in addition, the wife paying him $658,506. Therefore the range of dispute is in excess of $700,000.
The identity and value of the items making up the pool of assets is largely agreed but the parties seek very different findings in respect of the proportion of total contributions made by each of them and whether there should be an adjustment by reason of the non-contribution aspects of s 79(4) Family Law Act 1975 (Cth) (“the Act”), which include the s 75(2) factors.
Although the parties are divorced, for convenience I will refer to them as the wife and the husband.
Applications
The wife sought orders in terms of a Minute[1] provided on 29 August 2017 as follows:
[1]Exhibit 15
1.That within 7 days the parties do all acts and things and sign all documents to cause the balance of the proceeds of sale standing to the parties credit in the ANZ Premium Cash Management Account to be paid to the parties as follows:-
1.1The sum of $861,525 to the Wife; and
1.2The balance of $75,304 to the Husband.
2.That following compliance with Order 1 above, the Wife shall remain solely entitled, in law and in equity, to the exclusion of the Husband, to:-
2.1The property at [B Street, Suburb C];
2.2The company known as [DPL];
2.3All funds standing to her credit in any bank account in her name or to which she has an entitlement;
2.4All other items of property and personalty in her name and/or possession; and
2.5Her Superannuation entitlements within the [Ms Hanlen] Superannuation Fund.
3.That following compliance with Order 1 above, the Wife shall remain solely entitled, in law and in equity, to the exclusion of the Husband, to:-
3.1All funds standing to his credit in any bank account in his name or to which he has an entitlement;
3.2All other items of property and personalty in his name and/or possession; and
3.3His Superannuation entitlements with [E Super].
4.That each of the parties shall solely responsible for all liabilities in their respective names and shall indemnify the other, and keep them indemnified, with respect to such liabilities.
The husband sought orders in terms of a Minute[2] provided on 29 August 2017 as follows:
[2]Exhibit 16
(1)All previous financial orders be discharged.
(2)Within 7 days, the parties do all things and sign all documents necessary to distribute the funds held in the ANZ Premium Cash Management Account BSB … Account no. …99 to the Husband and to close the account.
(3)Within 7 days, the Wife pay to the Husband $658,5061.
(4)Within 7 days, the parties do all things and sign all documents necessary to distribute the funds held in the ANZ Account BSB … Account no. …32 to the Wife and close the account.
(5)If the Wife fails to comply with Order 3 within the time specified, within 14 days from the date of default, the Wife must list for sale and sell the property at [B Street, Suburb C] in the state of New South Wales and being the whole of the land in Folio Identifiers … and … (“Suburb C Property”) in accordance with Schedule A, which schedule forms part of these Orders.
(6)Simultaneously with the settlement of the sale of the Suburb C Property, the Wife do all acts and things and sign all documents necessary to cause the payment of the proceeds of sale to be paid, in the following order and priority:
(a)To pay all amounts necessary to discharge the mortgage secured by the [Suburb C] Property, being registered mortgage number …98, including any arrears;
(b)To pay all costs and expenses of the sale of the [Suburb C] Property including legal costs and disbursements, agents’ commission, valuer’s fees, advertising and sale expenses;
(c)To pay all amounts necessary to discharge all outstanding rates, electricity or other service accounts in respect of any service provided to the [Suburb C] Property outstanding as at the date of completion of the sale of the [Suburb C] Property;
(d)To pay the remaining proceeds of sale as to:
i.$658,506 to the Husband; and
ii.The balance to the Wife.
(7)The Wife retain her respective superannuation entitlements.
(8)The Husband retain his respective superannuation entitlements.
(9)Subject to any other order to the contrary, the Wife be solely, legally and beneficially entitled to the exclusion of the Husband, to all other real and personal property of whatsoever nature and kind in her respective ownership, possession and/or control as at the date of these Orders, including but not limited to, the [Suburb C] Property, money on deposit, shareholdings, insurance policies, motor vehicles and personal effects.
(10)Subject to any other order to the contrary, the Husband be solely, legally and beneficially entitled to the exclusion of the Wife, to all other real and personal property of whatsoever nature and kind in his respective ownership, possession and/or control as at the date of these Orders, including but not limited to, money on deposit, shareholdings, insurance policies, motor vehicles, shareholdings in the companies and personal effects.
(11)Subject to any other order to the contrary, as and from the date of these Orders, each party mutually releases the other from all debts, claims, actions, suits or demands of whatsoever nature owing from one to the other party, whether past, present or future
(12)Each party be at liberty to re-list the matter on 7 days’ written notice to the other in respect of the implementation of these Orders.
(13)In default of either or both the Husband and Wife doing all such things and executing all such documents as may be needed to comply with these Orders within the time provided:
(a)a Registrar of the Sydney Registry of the Family Court of Australia or such other person appointed by the Court be authorised to do all such acts and things and execute all such documents on behalf of either or both parties; and
(b)if either party procures compliance with this order by obtaining execution of documents pursuant to this order, then the party procuring such execution of documents will be indemnified by the party for his or her costs and expenses incurred in obtaining such compliance.
(14)The Wife pay the Husband’s costs of, and incidental to, these proceedings.
1Subject to the final balance sheet. The Husband awaits disclosure of the legal fees paid by the Wife since the trial in October 2016.
As to the precise orders sought, the minutes of proposed order were provided prior to some issues on the balance sheet being compromised. That is brought to attention by the note on the husband’s minute of orders that refers to the orders he seeks at paragraphs 2 and 6.4.1. I take it that the orders sought in the parties’ minutes are approximations of the precise orders sought based on an acceptance of the submissions respectively made about the pool of assets, contributions and adjustments.
Documents Read
The parties relied on the following documents:
Documents relied on by the applicant wife:
·Affidavit of Ms Hanlen filed 6 June 2016;
·Affidavit of Prof E filed 2 June 2016;
·Financial Statement of the wife filed 3 June 2016;
·Financial Statement of the wife filed 23 August 2017;
·Financial Questionnaire filed 29 April 2015;
·Affidavit of Ms G filed 10 June 2016; and
·Affidavit of Mr H Hanlen filed 16 June 2016.
Documents relied on by the respondent husband:
·Affidavit of the husband sworn 18 December 2015 and filed 21 December 2015;
·Financial Statement of the husband sworn 16 September 2016;
·Financial Statement of the husband sworn 22 August 2017 and filed 23 August 2017; and
·Affidavit of the husband sworn 27 September 2016.
Expert Evidence
·Report of Forensic Accountant Mr J filed 5 May 2015;
·Report of Mr K filed 19 August 2016;
·Updated report of Mr K filed 20 April 2017; and
·Report of Dr L filed 6 October 2016.
The Hearing
The proceedings were listed for final hearing over two days commencing on 27 October 2016.
On 28 October 2016 judgment was reserved save for the potential admission into evidence of a further report of a valuer in relation to the wife’s property at Suburb C and the possibility of further submissions and minutes of orders sought, arising from that further report. Pursuant to leave granted on that date, the matter was relisted on 13 December 2016 on the application of the parties. On that date no significant orders were made.
On 13 March 2017 an email in the following terms went from my chambers to the solicitors for the parties.
The purpose of this letter is to advise the parties that given the effluxion of time since the conclusion of the oral trial on 28 October 2016, a date or dates will be allocated to enable the parties to update their evidence and for final submissions.
The case was listed for final hearing over two days commencing on 27 October 2016. On 28 October 2016 judgment was reserved save for the potential admission into evidence of a further report of a valuer in relation to the wife’s property at [Suburb C] and the possibility of further submissions and minutes of orders sought, arising from that further report.
Pursuant to leave granted on that date, the matter was relisted on 13 December 2016 on the application of the parties. On that date no substantive orders were made.
The proceedings will be listed for mention to appoint the date or dates as soon as practicable after the filing of any evidence resulting from the orders made on 28 October 2016. In the event that no such evidence is filed by 28 April 2017, the proceedings will thereafter be listed for directions in relation to the completion of the trial, in any event.
On 20 April 2017 an affidavit of Mr K was filed. The affidavit annexed a supplementary report dated 23 January 2017 and responses dated 15 March 2017 to questions posed by the solicitors for the husband.
On 4 May 2017 the parties were advised that the proceedings were listed for mention at 10.00 am on 15 June 2017.
On 15 June 2017 orders were made by agreement, including orders for a further preliminary distribution of funds to the parties.
On 29 August 2017 new minutes of orders sought were tendered. Each of the parties had recently filed an updated Financial Statement. The wife was briefly cross-examined in relation to an item in her Financial Statement. Submissions were made and judgment was again reserved.
These proceedings have experienced an unfortunate delay even beyond that which sadly, the preponderance of litigants experience in this Court. That mainly arose because of issues which rendered uncertain an agreement about the value of a particular property. Happily the change in the agreed value was a positive one for the parties, placing an additional $1,000,000 in the net pool of assets. Nevertheless, the delay was unsatisfactory.
Short History
The wife was born in 1967 and is currently 50 years of age. The husband was born in 1963 and is currently 54 years of age.
The parties commenced cohabitation in 1993 and were married in 1993. They separated on 27 March 2012 but remained living under the same roof until November 2012. The parties were divorced with effect from 21 June 2013.
Children
The parties have three children, namely:
·Mr M, born in 1994 and currently 23 years of age;
·Ms N, born in 1996 and currently 21 years of age; and
·O, born in 1999 and currently 17 years of age.
Background Facts
The husband was born in 1963.
The wife was born in 1967.
In approximately 1986, when the wife was 19 years of age, she was diagnosed with an auto-immune disease. This results in skin lesions, pain and fatigue.
In 1989 the wife graduated from the University of Sydney.
In 1990 the wife undertook a position at P Hospital for one year.
In 1991 the wife became employed by Q Hospital.
In 1992 the wife was promoted at Q Hospital. Between 1992 and 1997 the wife worked at the R Centre and was also studying for a Ph.D.
In 1993 the wife gained further employed at the R Centre.
In June or July 1993 according to the husband or October 1993 according to the wife, the parties commenced cohabitation.
In late 1993 the parties were married.
In 1994 the husband started working full-time for S Pty Ltd in sales.
In 1994 the parties’ first child, Mr M was born. The wife took maternity leave until August or September 1994.
On 27 October 1994 the husband and wife purchased a property at T Street, Suburb U (“the Suburb U property”) for $323,000. The parties borrowed approximately $83,000 from the wife’s sister, Ms G, and obtained a mortgage from the Commonwealth Bank in the sum of $240,000. The wife’s sister paid the interest payments on the loan to the Commonwealth Bank. The husband’s father gave the parties $30,000 of which they applied $10,000 towards the stamp duty and $20,000 to discharge a debt owed by the husband from before cohabitation.
In 1995 the husband commenced studying for a qualification in law, however he discontinued those studies.
In 1996, Ms N was born.
On 10 May 1996 the wife’s mother passed away. The wife received approximately $200,000 from her mother’s estate in late 1996. Most of those funds were applied to the mortgage secured against the property known as V Street, Suburb W (“the Suburb W property”).
In late 1996 the husband ceased working for S Pty Limited.
The wife contends that in 1997 she received $150,000 from her brother, Mr H Hanlen, upon the sale of a building owned by him. The husband disputes that $150,000 was received.
In 1997 the husband became employed on a full-time basis by X Pty Ltd.
The husband deposed that in April 1997 the parties agreed that he would cease paid employment and become the primary carer for the children. The wife contests that evidence.
On 20 April 1997 the parties sold the Suburb U property for $475,000. They repaid the wife’s sister the amount of $83,000 and discharged the remaining mortgage of $240,000. The parties retained net proceeds of approximately $152,000 according to the wife, or $70,000 according to the husband.
On 29 April 1997 the parties purchased the Suburb W property for $603,000. The wife contended that purchase was funded using proceeds from the sale of the Suburb U property, the $150,000 received from her brother, and the $200,000 from her mother’s estate, towards the purchase. The balance was borrowed from the National Australia Bank. As is referred to above, the husband disputes any advance of $150,000 from the wife’s brother at that time and contends that the parties borrowed approximately $533,000 from the bank. According to the wife, they borrowed $370,000. It was not possible to resolve that dispute. The wife cannot adequately support her contention with records or oral evidence and on her contention the amount applied to the purchase of the Suburb W property is far greater than was necessary.
The husband deposed that after the Suburb W property was purchased, he undertook some renovations to the property.
In 1998 the husband recommenced his studies.
In 1998 the husband ceased his employment with X Pty Ltd.
On 19 January 1998 D Pty Ltd (“DPL”) was registered with the wife as the sole director and shareholder.
In 1998 or 1999 the wife purchased premises in the Y Centre at Suburb Z for approximately $60,000. In 1998 and 1999 the wife worked at her Suburb Z premises on Fridays. This later changed to Tuesdays until the wife sold the premises in 2005.
Also in 1998 the wife started working in premises in Suburb AA on Wednesday mornings. She gradually built this up to two days per week.
In 1999 the husband started working independently.
In 1999 the wife inherited $132,000 from her great aunt. She applied those funds to the mortgage secured against the Suburb W property and family expenses.
On 24 September 1999 the parties purchased a property at BB Street, Suburb CC (“the Suburb CC property”) in the wife’s sole name for $817,000. The wife’s brother funded the entire purchase, including stamp duty of $33,665. The parties and the children lived in the Suburb CC property from December 1999 until March 2000. During this time, the parties rented out the Suburb W property for $1,000 per week.
In 1999 O was born. The wife took three months maternity leave. The husband’s mother lived with the parties and provided assistance to the family for two months, on the wife’s version, or six months, on the husband’s version.
In February or March 2000 the parties separated. On the wife’s evidence, they separated for approximately six months and on the husband’s evidence, for approximately six to eight weeks. The wife rented an apartment in Suburb DD for six weeks, and then a house in EE Street, Suburb W. The husband remained living in the Suburb CC property.
On 18 May 2000 the husband registered a company FF Pty Ltd, a web based insurance advice business. The parties invested $30,000 into the business for start-up costs using a joint loan account secured against the Suburb W property.
In May 2000 according to the husband or August 2000 according to the wife, the parties reconciled. The husband moved in with the wife and children at the rental property in EE Street, Suburb W.
In November 2000, FF Pty Ltd ceased operations.
On 5 March 2001 the Suburb CC property was sold for $835,000. The proceeds were paid to the wife’s brother.
In 2002 the husband received $40,000 from his father and step-mother.
In 2003 the parties refinanced the mortgage secured over the Suburb W property with the National Australia Bank, increasing the debt by approximately $895,000 in order to complete renovations to that property.
On 25 August 2003, FF Pty Ltd was de-registered.
In 2004 further renovations of the Suburb W property commenced.
In 2004 the wife moved into her current premises at GG Street, Suburb AA. She increased her work to three days per week.
On 14 February 2004 the wife’s father passed away. The wife received approximately $220,000 over the next three years by way of property trust distributions and the sale of property trusts.
In June 2004 the wife’s brother and the husband registered a business called HH Pty Ltd. The husband and wife contributed $90,000 - $100,000 to the start-up costs of the business, and later a further sum of $20,000 - $25,000 in 2005 or 2006.
In 2005 the wife’s brother advanced $450,000. Those funds were applied to the mortgage on the Suburb W property and family expenses.
In 2005 the wife sold her premises at Suburb Z. The wife said she made a small profit and applied the funds to joint loan accounts.
From 2005 DPL was operated solely out of GG Street, Suburb AA.
On 26 March 2005 the parties and their children were involved in a motor vehicle accident. The wife and Mr M sustained injuries and each spent time in hospital.
In 2006 the wife was diagnosed with another autoimmune disease.
In 2006 the husband received $40,000 from his step-mother.
In February 2006 the wife’s brother and the husband closed HH Pty Ltd and it was placed into voluntary administration.
In May 2006 O was diagnosed with Type 1 Diabetes. The husband contends that after O’s diagnosis, he was responsible for the day-to-day management of O’s condition including attending at his school twice per day to administer insulin. The wife disputes that evidence.
In December 2006 the wife received a compensation settlement in the amount of $800,000 in relation to the motor vehicle accident.
The wife deposed that during some of 2006 and 2007, the husband worked for DPL for approximately four to eight hours per week as a medical transcriptionist. She said that he subsequently ceased doing this work, but continued receiving a wage from DPL until May 2012.
From 2008 Mr M commenced attending on Dr II, psychiatrist, approximately once per month.
In 2008 the husband commenced studies for a professional diploma.
In 2009 the parties purchased a property at JJ Street, Suburb KK, Queensland (“the Queensland property”) for $425,000. They borrowed the entire purchase price and rented the property out thereafter.
In 2009 the parties purchased a yacht for approximately $63,000 - $70,000 financed using an equity manager overdraft facility.
In 2010 the wife entered into a contract to purchase a property off the plan to use as the premises for DPL. The deposit and stamp duty was $310,000 financed by way of a loan. Ultimately the purchase did not proceed and the deposit and stamp duty were refunded to the wife. She applied that money to the loan she had obtained to finance the purchase. The wife said that the only cost to DPL arising out of the aborted purchase was the interest payments on the deposit and stamp duty outlay.
On 27 March 2012 the parties separated on a final basis but continued to live under the same roof.
The husband said that immediately after separation, the wife stopped paying the utility bills for the Suburb W property, cancelled his credit card and restricted his access to joint funds. In cross-examination he conceded that he continued to have the use of his credit card but confirmed that the wife did not make any payments on that account. The husband borrowed $10,000 from the wife’s sister.
Following separation, the husband commenced attending upon Dr LL for the treatment of depression.
From May 2012 the husband’s wage from DPL ceased.
On 19 September 2012 the wife registered the Ms Hanlen Pty Limited Superannuation Plan. The wife is the sole director and shareholder.
In late 2012 the husband commenced working for Company MM.
In November 2012 the wife, Ms N and O moved to live in a rented home at B Street, Suburb C at a cost of $1,500 per week. The husband and Mr M remained living in the Suburb W property.
The husband deposed that in 2013, he borrowed $10,000 from his brother and $20,000 from his step-mother. He repaid the wife’s sister the $10,000 she had lent him.
The husband deposed that from January 2013 Ms N commenced living between the parents’ houses.
In 2013 Mr M commenced tertiary education.
On 21 February 2013 the parties sold the Queensland property for $357,000. The parties applied the proceeds to the loan from the ANZ Bank, secured against the property. In order to completely discharge the mortgage, they borrowed a further $54,137 from the loan facility secured against the Suburb W property.
On 21 May 2013 a divorce order was made with effect from 22 June 2013.
On 2 August 2013 the wife commenced these proceedings.
On 19 September 2013 the wife was diagnosed with a medical condition. She was admitted to Q Hospital for 14 days. She ceased working until 30 January 2014 whereupon she returned to work but with reduced hours.
The wife held two income protection policies but both had a three month waiting period. She was subsequently paid $153,255.47 for the 2013/2014 financial year, $155,601 for the 2014/2015 financial year, and $26,415.61 + $12,076.75 for the period July 2015 to 6 March 2016.
In October 2013 the husband and Mr M had an argument and Mr M ceased living with the husband. The wife rented an apartment in Suburb C for Mr M, at a cost of $300 per week.
The husband deposed that towards the end of 2013, while Ms N was completing her HSC, she commenced to live with the wife full time but that prior to this she had been living with each of her parents.
On 20 December 2013 orders were made by consent to extend the loan facility secured against the Suburb W property and pay various expenses including legal costs and costs associated with readying the Suburb W property for sale. The orders provided that the parties list the Suburb W property for sale, with the proceeds of sale after the payment of sale costs, to be deposited into a controlled monies account.
In early 2014 Ms N commenced a university degree but after failing a semester, she returned to live with the mother from November 2014. In July 2015 Ms N resumed her studies.
On 30 January 2014 the wife returned to work at DPL part-time. She started working three half days per week and gradually increased her hours.
On 20 February 2014 orders were made by consent providing for the distribution of the following funds upon settlement of the Suburb W sale:
(a)$60,000 by way of interim costs for each of the husband and the wife to be paid to their respective solicitors;
(b)$140,000 to each of the husband and the wife with such payment to be characterised by the trial judge;
(c)$90,948.53 to the husband to pay liabilities;
(d)$170,653 to the wife to pay liabilities;
(e)$12,220 to be paid for the benefit of Ms N; and
(f)$15,600 to be paid for the benefit of Mr M.
On 2 May 2014 the Suburb W property was sold for $3,075,000. The remaining mortgage of $510,029 was repaid. The sum of $669,585.49 was distributed in accordance with the above Court orders, and the balance of $1,742,131 was deposited into a controlled monies account.
In October 2014 the husband commenced employment with NN Pty Ltd on a full-time basis.
On 24 October 2014 the wife purchased a property at B Street, Suburb C (“the Suburb C property”) for $2,700,000. The wife obtained a mortgage from the ANZ Bank, and used $250,000 she had received by way of a partial property settlement.
On 30 October 2014 the wife sold shares in Company OO which were part of the inheritance from her father, for $120,000. She applied those funds to the purchase of the Suburb C property.
In November 2014 the husband entered into a loan agreement with his employer whereby the husband lent the employer $200,000 to be repaid within three months, plus five per cent interest. The employer did not repay the funds, and as a result the husband commenced enforcement proceedings against the employer.
On 5 December 2014 orders were made by consent to release $250,000 to each of the parties from the proceeds of sale of the Suburb W property by way of partial property settlement.
On 27 April 2015 the husband resigned from NN Pty Ltd.
In August 2015 the wife attempted to increase her work to four and one half days per week.
For a period in late 2015 the husband worked on a casual basis at the PP Club.
On 13 and 14 November 2015 the wife was admitted to Q Hospital for the treatment of an infection.
The wife deposed that towards the end of 2015 she became ill and took three weeks off from work over the Christmas break. She then recommenced work but reduced her hours to 3.5 days per week.
From 13 December 2015 O lived with the wife.
On 22 February 2016 the husband obtained his professional certificate.
From 22 February 2016 O became employed as a first year apprentice and commenced earning a wage. He has since ceased that work and enrolled in an Diploma course at TAFE.
On 29 March 2016 the husband obtained employment with a firm in Suburb QQ.
On 13 April 2016 orders were made to list the matter for hearing over two days commencing on 27 October 2016.
The husband deposed that from 3 June 2016 he transferred $150 per week to Ms N.
In August 2016 the wife suffered from a flare-up in her symptoms.
At the conclusion of the hearing orders were made by consent in the following terms:
1. Judgment is reserved, save that the parties have leave:
a)to file and introduce into evidence an updating report from [Mr K] in relation to the value of the [Suburb C] property; and
b)in the event that either party seeks to challenge the evidence of [Mr K] or to make further submissions as a result of [Mr K’s] updating report or any other issue arising in the proceedings, to both parties to approach the associate to Justice Loughnan for a further date for the making of those submissions.
2.By consent the parties are to forthwith do all acts and things and sign all documents to cause $100,000 to be disbursed by way of interim property settlement to each of them from ANZ Premium Cash Management Account BSB … account number …99 and those disbursements are part of the entitlement of each party respectively by way of final settlement of property.”
On 15 June 2017 the following orders were made:
1.BY CONSENT orders and notations are made in accordance with the document marked Exhibit “A” as set out hereunder:
1.That the Court note that
1.1The wife has disclosed to the Court and the husband today that she proposes to list the sale of the property at [B Street, Suburb C] by way of expressions of interest for a period of 3 weeks, and thereafter by way of auction if not sold; and
1.2The wife will not dispose of the property at a consideration of less than $4,000,000;
1.3The wife proposes to apply the proceeds of sale to purchase another property.
2.That pending further order:
2.1That the wife be restrained from disposing of her interest in the property at [B Street, Suburb C] at a consideration or sale price of less than $4,000,000;
2.2That the wife be restrained from further encumbering, mortgaging or adversely affecting her interest in the [B Street, Suburb C] property save and except as provided for in these orders, or with the consent of the husband in writing, including drawing down on the current debit facility secured upon the property;
2.3That the wife do all things and give all instructions necessary to ensure that the husband is advised in writing as to:
2.3.1The terms of any offers received during the marketing of the property at [B Street, Suburb C], or counter offers put; and
2.3.2The term of any contract for sale entered to dispose of the property;
2.3.3The date of any auction of the property, and any reserve price for such auction.
3.That the Court note that in the event the property at [B Street, Suburb C] is not sold by way of the processes identified in these orders, then it is to be valued for the purposes of these proceedings at $4,000,000.
4.That the parties are to forthwith do all things and sign all documents to cause
·$100,000 to be distributed to the husband
·$200,000 to be distributed to the wife
from ANZ Premium Cash Management Account BSB … account number …99 and those distributions are part of the entitlement of each party by way of final property settlement.
5.That the wife within 14 days of the date of these orders provide to the husband’s solicitors her entries in the updated joint balance sheet, currently being Exhibit B in the proceedings.
Issues
Pool
There are a number of disputed issues about the treatment of certain items in the agreed balance sheet. Importantly:
Item 27the wife seeks the inclusion of $257,855 in the list of assets attributable to the husband because of funds advanced to him after separation;
Item 30the husband contends that he owes $20,000 to his step-mother, Ms Kime, and that it should be included as a relevant debt;
Item 31the husband contends that he owes $4,000 to Mr RR Kime and that it should be included as a relevant debt;
Item 35the wife contends $10,615 is owed to the common pool by reason of an over estimate of tax liabilities referable to orders 1 and 2 made on 18 February 2014.
Contributions
The wife contends that she made between 75 and 80 per cent of the contributions. The husband argues that he made 40 - 42.5 per cent of the contributions.
Adjustments
It is the wife’s case that there should be no adjustment from a division based on contributions. The husband argues that there should be an adjustment to him pursuant to s 75(2) of the Act of between 10 and 15 per cent. This would mean, that on the husband’s case, he would be entitled to the benefit of about 52.5 per cent of the net asset pool.
Credit
There are issues that fall to be determined solely by reference to the uncorroborated testimony of the parties. It is therefore necessary to refer to the credit of the parties.
A significant proportion of the parties’ affidavits was struck out on objection and largely by agreement. Apart from the cost of drawing, engrossing, perusing and responding to that material, the removed material was distracting and unnecessarily took up time during the trial.
The wife failed to disclose the fact of sub-division approval granted for her Suburb C property. In my view the wife is likely to have exaggerated her evidence about non-financial contributions. Those matters raise a concern about the reliability of her critical and at times, dismissive evidence about the husband’s contributions.
The wife’s brother, Mr H Hanlen said that he had suffered Encephalitis and that as a result his memory was damaged. Although much of his evidence is not disputed, without corroboration I cannot accept his testimony on disputed matters. The lack of reliable evidence from this witness is unfortunate because he may have otherwise been a useful source of non-partisan evidence. Although he is the brother of the wife, in addition to his general financial support to the parties, in the past he has also joined in and provided generous support to the husband for individual business projects.
Ms G was generally a good witness. She provided support to her brother in law after his separation from the wife, providing a basis for confidence in the independence of her evidence.
The husband was not successfully challenged on any significant issue.
The credibility of the expert witnesses was not called into question.
The Law
The Approach in Proceedings Under Section 79
In the context of these proceedings s 79 of the Family Law Act relevantly provides:
79 Alteration of property interests
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a) in the case of proceedings with respect to the property of the parties to the marriage or either of them - altering the interests of the parties to the marriage in the property; or
….
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring:
(i)either or both of the parties to the marriage; …
….
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
….
(2) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
In Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 (“Hickey”) the Full Court said:
39.The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s. 79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss. 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss. 79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s. 79(4)(e), the matters referred to in s. 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Townsend and Townsend (1995) FLC 92-569; Biltoft and Biltoft (1995) FLC 92-614; McLay and McLay (1996) FLC 92-667; JEL and DDF (2001) FLC 93-075 and Phillips and Phillips (2002) FLC 93-104.
In Hickey the Court was not asked to address the preliminary aspect of the requirement created by s 79(2) as to whether there should be any order at all changing property interests. Similarly, the proceedings before me do not involve any controversy about that issue. As was observed in Stanford v Stanford (2012) 247 CLR 108, that preliminary, just and equitable requirement, is often readily satisfied. Here, the marriage of the husband and wife involved 19 years of cohabitation and their contributions spanned more than 24 years. The relationship of the husband and wife has broken down and they live apart. Approximately $940,000 is held in a joint controlled monies account. The parties have both invoked s 79 of the Act. I note the exhortation in s 81 to “as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them”. It is just and equitable that the husband and wife have relief under s 79.
I turn to the task of identifying orders that will alter the interests of the husband and wife in property in a just and equitable way. There is no mention of steps or stages in s 79, let alone of the sequence set out in (a) to (d) below. However, I will address the following matters:
(a)make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing;
(b)identify and assess the contributions of the husband and wife within the meaning of ss 79(4)(a), (b) and (c) and determine their contribution based entitlements, expressed as a percentage of the net value of the property of the parties;
(c)identify and assess the relevant matters referred to in ss 79(4)(d), (e), (f) and (g) (“the other factors”) including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the husband and wife; and
(d)consider the effect of those findings and determinations and resolve what order is just and equitable in all the circumstances of the case.
The property of the parties
In determining what order is appropriate, it is necessary to make a finding as to the property of the parties. That involves identifying assets, liabilities and financial resources and their values.
The joint balance sheet had a number of iterations but as at 29 August 2017 it was as follows:
Assets
Owner Description Wife’s value Husband’s value 1 Wife B Street, Suburb C $4,000,000 $4,000,000 2 Wife DPL Pty Ltd ABN … $52,651 $52,651 3 Wife NAB Account BSB … account no. …06 $14,482 $14,482 4 Wife ANZ Premium Cash Management Account BSB … account no. …68 $1,655 $1,655 5 Joint ANZ Premium Cash Management Account BSB … account no. …99 $936,829 $936,829 6 Wife ANZ Account BSB … account no. …32 $4,607 $4,607 7 Wife NAB Account BSB … Account no. …78 $20,000 $20,000 8 Wife Investment: SS 33,319 shares, $29,126 $29,126 9 Wife Investment, Property TT $6,000 $6,000 10 Wife Household contents $5,000 $5,000 11 Husband ANZ Premium CMA Account BSB … account no. …29 0 0 12 Husband E Trade Account BSB … Account Number …09 $8 $8 13 Husband E*Trade Share Portfolio 0 0 14 Husband ANZ Account BSB … account no. …38 $1,195 $1,195 15 Husband Motor vehicle Registration No. … $5,000 $5,000 16 Husband Yacht $35,000 $35,000 17 Husband Motor bike $7,000 $7,000 18 Husband Household contents $4,000 $4,000 19 Husband Legal fees paid to date $191,544 $191,544 20 Wife Legal fees paid to date $181,404 $181,404 21 Husband Legal fees and disbursements paid since trial – October 2016 to August 2017 $0 $0 22 Wife Legal fees and disbursements paid since trial – October 2016 to August 2017 $0 $0 23 Husband Interim distribution pursuant to orders 28.10.2016 $100,000 $100,000 24 Wife Interim distribution pursuant to orders 28.10.2016 $100,000 $100,000 25 Husband Interim distribution pursuant to orders 15.6.2017 $100,000 $100,000 26 Wife Interim distribution pursuant to orders 15.6.2017 $200,000 $200,000 27 Husband Balance of funds received by husband pursuant to interim orders $257,855 $0 Total $6,253,356 $5,995,501
Liabilities
Owner Description Wife’s value Husband’s value 28 Wife Loan secured against Suburb C property NAB account no. …09 $2,029,119 $2,029,119 29 Wife Loan to NAB account no. …09 secured against Suburb C property $304,317 $304,317 30 Husband Personal loan from husband’s step-mother, Ms Kime 0 $20,000 31 Husband Personal loan from Mr RR Kime $0 $4,000 32 Wife Income Tax for 2016 $0 $0 33 Wife ANZ Frequent Flyer Platinum …72 $17,830 $17,830 34 Wife NAB Account …98 $8,942 $8,942 35 Husband Funds owed to common pool (see orders 1 and 2 dated 18/2/14 over estimate of tax liabilities) $10,615 $0 36 Wife Loan from DPL $48,512 $48,512 37 Husband ANZ Visa …88 $4,910 $4,910 38 Husband HECS $8,018 $8,018 39 Wife Debt owing to Asteron $0 $0 Total $2,432,263 $2,445,648
Superannuation
Owner Description Wife’s value Husband’s value 35 H E Super Accumulation Interest $72,870 $72,870 36 W The Ms Hanlen Superannuation Fund Self-Managed Superannuation Fund $260,688 $260,688 Total $333,558 $333,558
As to the issues about the balance sheet:
Assets
Item 27
The wife seeks and the husband opposes the inclusion of $257,855 in the husband’s list of assets in relation to funds that no longer exist but that were advanced to him under earlier orders for interim or partial property settlement. The wife contends that it would be unfair not to add back that advance, as the equivalent advance made to her is now represented by the value of the Suburb C property and it has been brought to account. The submission for the husband is that he required those funds to meet his living expenses, in circumstances where the wife had unfettered access to her greater income.
As at October 2016 there were funds in the husband’s E-trade account and there was a concern on his behalf that to add back the $257,855 would involve double counting the funds available to the husband. However, it was then submitted and I accept that the E-trade account was not double counted because the husband had access to a total of over $400,000 and $257,855 was a net claim, that did not include the E-trade balance. Of course, as at August 2017 there are no funds in the E-trade account.
The argument for adding the earlier distribution into the balance sheet as a notional asset is that but for the distribution, the assets would have been greater than they now are. To put that another way, it is argued that it would be unfair to one of the parties if the other party had the exclusive use of joint funds after separation, without that being reflected in the ultimate balance sheet.
However, it is highly unusual for the Court to add back funds that have been applied to living expenses. Even if the task of identifying a just and equitable settlement of property required that the Court conduct an analysis of the use and application of funds by the parties to a marriage breakdown from the date of separation to the date of the hearing, and it does not, such an analysis is rarely possible. Such an analysis is not possible here. What would be the parameters for such an analysis? The evidence before the Court would not permit a reliable investigation of the expenditure of either party against the funds available to them since December 2014, let alone a principled determination of acceptable or unacceptable expenditure so that there would be a useful outcome from the investigation.
The fundamental proposition is that the assets and liabilities and their values are assessed as at the date of the hearing, and not at some other time. Life goes on between separation and final trial. For example, contributions made after separation are not ignored because of that fact alone.
I will not add back the advance.
Liabilities
Item 30
The husband claims a debt owed by him to his stepmother, Ms Kime. As is submitted for the wife, pursuant to the orders of 20 February 2014 there was a distribution to the husband of $90,948.53 to address specific liabilities, including a personal loan to the husband from Ms Kime for $20,000.
In paragraph 60 of the husband’s affidavit there is the following evidence:
60.My brother then lent me an additional $10,000 in 2013 and my stepmother lent me $20,000 in 2013. I have repaid the debt to my brother, with interest, however the debt to my stepmother remains owing. There was provision made for the repayment of this debt in Orders made on 20 February 2014 however my stepmother said to me, ‘Wait to pay me back until the Court proceedings are over’. The funds remain in my ANZ bank account, account number …38.
It is the husband’s evidence that he did not repay that debt. He was asked about that in cross-examination and confirmed that he did not repay the debt. It is the unchallenged evidence of the husband that he continues to have a debt to his stepmother. It was his evidence that as at the date of his affidavit in December 2015, the funds to repay that debt were in his ANZ Bank account. That may be true but there was less than $2,000 in that account in October 2016 and that remains the position.
In my view, in order to ignore the current debt I would need to be satisfied that the husband has the money and that it is not represented anywhere in the balance sheet or that he used the joint funds advanced in some way that should be visited solely on him. I cannot make either finding. There is a debt and there is no reason to exclude it from the balance sheet.
Item 31
The husband claims a debt of $4,000 owed by him to his brother, Mr RR Kime. As was submitted for the wife the distribution to the husband of $90,948.53 under the orders of 20 February 2014, was to address liabilities including a personal loan made to him by his brother for $20,000.
I refer to paragraph 60 of the husband’s affidavit quoted above.
It is the husband’s evidence that he did repay that debt. He was asked about that in cross-examination and confirmed that evidence.
The notes to the current balance sheet refer to the husband borrowing money from his brother in order to meet day to day living expenses incurred prior to the distribution of funds made in June 2017. There is a debt and there is no reason to exclude it from the balance sheet.
Item 35
The wife claims that $10,615 should be added to the balance sheet in the hands of the husband. This was item 28 in the version of the balance sheet at the time of the October 2016 hearing. There is no relevant note to that balance sheet in respect of this item, nor is there one in the current balance sheet which superseded it as exhibit 2. I recall no meaningful evidence or submissions about this item.
I gather from the description in the current balance sheet that the item is based on an argument that the husband did not need or use the amount provided for in the orders of 20 February 2014 in respect of his tax and presumably, that he should have had a surplus for that reason of $10,615. The provision for tax in those orders was an amount of $14,302 for each of the 2013 and 2014 tax years.
There is no suggestion that the husband has $10,615 which is not otherwise brought to account in the balance sheet. There is no reason to add back this amount to the balance sheet on the husband’s side of the ledger.
Therefore the balance sheet is as follows:
Owner Description Value 1 Wife B Street, Suburb C $4,000,000 2 Wife DPL Pty Ltd ABN … $52,651 3 Wife NAB Account BSB … account no. …06 $14,482 4 Wife ANZ Premium Cash Management Account BSB … account no. …68 $1,655 5 Joint ANZ Premium Cash Management Account BSB … account no. …99 $936,829 6 Wife ANZ Account BSB … account no. …32 $4,607 7 Wife NAB Account BSB … Account no. …78 $20,000 8 Wife Investment: SS 33,319 shares, $29,126 9 Wife Investment, Property TT $6,000 10 Wife Household contents $5,000 11 Husband E Trade Account BSB … Account Number …09 $8 12 Husband ANZ Account BSB … account no. …38 $1,195 13 Husband Motor Vehicle $5,000 14 Husband Yacht $35,000 15 Husband Motor bike $7,000 16 Husband Household contents $4,000 17 Husband Legal Fees Paid to Date $191,544 18 Wife Legal Fees Paid to Date $181,404 19 Husband Interim distribution pursuant to orders 28.10.2016 $100,000 20 Wife Interim distribution pursuant to orders 28.10.2016 $100,000 21 Husband Interim distribution pursuant to orders 15.6.2017 $100,000 22 Wife Interim distribution pursuant to orders 15.6.2017 $200,000 23 Husband E Super
Accumulation Interest
$72,870 24 Wife The G Hanlen Superannuation Fund
Self-Managed Superannuation Fund
$260,688 25 Wife Loan secured against Suburb C property NAB account no. …09 -$2,029,119 26 Wife Loan to NAB account no. …09 secured against Suburb C property -$304,317 27 Husband Personal loan from husband’s step mother, Ms Kime -$20,000 28 Husband Personal loan from Mr RR Kime -$4,000 29 Wife ANZ Frequent Flyer Platinum …72 -$17,830 30 Wife NAB Account …98 -$8,942 31 Wife Loan from DPL -$48,512 32 Husband ANZ Visa …88 -$4,910 33 Husband HELP (HECS) -$8,018 Total $3,883,411
Net assets
Therefore the net “assets” have a value of $3,883,411. Of those assets, $333,558 is in the form of superannuation interests and $3,549,853 is made up of non-superannuation interests.
Contributions
The obligations placed on the Court by s 79 call for an assessment of the respective contributions by and on behalf of the husband and wife. The manner of assessing contributions has been the subject of previous decisions. The contributions of a parent and homemaker are to be assessed, not in any merely token way, but in terms of their true worth to the building up of the assets.[3] There are said to be risks in taking an overly technical approach to the assessment of the respective contributions of the husband and wife in that the Court can become involved in questions of the quality of contributions which go far beyond the real world expectations of husband and wife.
[3] In the Marriage of Shewring (1988) FLC 91-926
As to whether the Court should apply the considerations in s 79(4) to the assets globally or asset by asset, the authorities have it the latter approach is preferred, in appropriate circumstances either approach is permissible and sometimes the asset by asset approach is best. See In the Marriage of Lenehan (1987) FLC 91-814; In the Marriage of Norbis (1986) 161 CLR 513; In the Marriage of Zyk (1995) FLC 92-644.
In In the Marriage of Coghlan (2005) FLC 93-220 the Full Court allowed that superannuation may be included in the list of property drawn up as “the first step” in the determination of proceedings under s 79, whether or not a splitting order is sought in those proceedings. The Full Court suggests at [61] that:
… This approach could be adopted where the parties agree that it should be adopted, or where the court is satisfied that the superannuation interest is indeed property within the meaning of the definition of property contained in s 4(1), or if the interest is not within that definition, but is of relatively small value in the context of the value of the other assets in the case, or there are features about the interest which leads the Court to conclude that this would be an appropriate approach.
Here, no splitting order is sought and the parties’ cases were argued on a one pool basis. I will take the same approach.
Section 79(4)(a) Contributions
Financial contributions to property, both direct and indirect were made by each of the husband and wife.
At the commencement of cohabitation the wife had an amount of $20,000 in savings. The husband had a liability of $20,000 related to a business venture.
The wife had paid employment during the marriage as follows:
·In 1993 the wife was employed at the R Centre.
·In 1994 the parties’ first child, Mr M was born. The wife took maternity leave until August or September 1994.
·On 19 January 1998 DPL was registered with the wife as the sole director and shareholder.
·In 1998 and 1999 the wife worked at her Suburb Z premises on Fridays. This later changed to Tuesdays until the wife sold the premises in 2005.
·Also in 1998 the wife started working in Suburb AA on Wednesday mornings. She gradually built this up to two days per week.
·In 1999 O was born. The wife took three months maternity leave.
·In 2004 the wife moved into her current premises at GG Street, Suburb AA and increased her work to three days per week.
·On 19 September 2013 the wife was diagnosed with a medical condition. She was admitted to Q Hospital for 14 days. She ceased working until 30 January 2014 whereupon she returned to work but with reduced hours.
·The wife held two income protection policies but both had a three month waiting period. She was subsequently paid $153,255.47 for the 2013/2014 financial year, $155,601 for the 2014/2015 financial year, and $26,415.61 + $12,076.75 for the period July 2015 to 6 March 2016.
·On 30 January 2014 the wife returned to work at DPL part-time. She started with three half days per week and gradually increased her hours.
·In August 2015 the wife attempted to increase her work to four and a half days per week.
·The wife deposed that towards the end of 2015 she became ill and took three weeks off from work over the Christmas break. She then recommenced work but reduced her hours to three and a half days per week.
During the marriage the husband had paid employment as follows:
·In 1994 the husband started working full-time for S Pty Limited as a sales representative. He ceased that work in late 1996.
·From 1997 to 1998 the husband worked full time with X Pty Ltd.
·In 1999 the husband started working independently.
·The wife deposed that during some of 2006 and 2007, the husband worked for DPL for approximately four to eight hours per week. She said that he subsequently ceased doing this work, but continued receiving a wage from DPL until May 2012.
·In late 2012 the husband commenced working for Company MM.
·Between October 2014 and 27 April 2015 the husband worked with NN Pty Ltd on a fulltime basis.
·For a period in late 2015 the husband worked on a casual basis at the PP Club.
·On 29 March 2016 the husband obtained employment with a firm in Suburb QQ.
There have been injections of funds through the wife:
·On 27 October 1994 the husband and wife purchased the Suburb U property for $323,000. The parties borrowed approximately $83,000 from the wife’s sister, Ms G, and she made the interest payments on the loan to the Commonwealth Bank. On 20 April 1997 the parties sold the Suburb U property for $475,000. They repaid the wife’s sister the amount of $83,000.
·The wife received approximately $200,000 from her mother’s estate in late 1996. Most of those funds were applied to the mortgage secured against the Suburb W property.
·In 1997 the wife says she received $150,000 from her brother upon the sale of a building owned by him. The husband disputes that $150,000 was received. There are no independent records to support the wife’s contention and Mr H Hanlen is sadly not in a position to assist on this issue. I do not find that the advance of $150,000 was made.
·In 1999 the wife inherited $132,000 from her great aunt. She applied those funds to the mortgage secured against the Suburb W property and family expenses.
·On 24 September 1999 the parties purchased the Suburb CC property in the wife’s sole name for $817,000. The wife’s brother funded the entire purchase, including stamp duty of $33,665. The parties and the children lived in the Suburb CC property from December 1999 until March 2000. During this time, the parties rented out the Suburb W property and received $1,000 per week in rent. On 5 March 2001 the Suburb CC property was sold for $835,000. The proceeds were paid to the wife’s brother.
·On 14 February 2004 the wife’s father passed away. The wife received approximately $220,000 over the next three years by way of property trust distributions and the sale of property trusts. On 30 October 2014 the wife sold shares in Company OO which were part of that inheritance from her father. She applied those funds to the purchase of the Suburb C property.
·In 2005 the wife’s brother advanced $450,000. Those funds were applied to the mortgage on the Suburb W property and family expenses.
·In December 2006 the wife received a compensation settlement in the amount of $800,000 in relation to the motor vehicle accident. There is a dispute between the parties as to whether that payment should be seen as a joint contribution or a contribution solely on behalf of the wife. The payment was a settlement. The original claim included elements for loss of earnings and for support provided by the husband. However, as I say, the ultimate award represented a settlement and there are no components of the settlement to be identified. In Aleksovski and Aleksovski (1996) FLC 92-705 the Full Court agreed with the approach taken by Faulks J at first instance in respect of a compensation award of $143,000. As to $100,000 the award was related to the wife’s pain and suffering. Among other things the majority of the Full Court said at [83437]:
In our view, having regard to the facts of this case, his Honour was entirely correct in that the wife's damages award and, in particular, that portion of it which related to pain and suffering, should be regarded as a contribution by her to the marriage and to the family.
Similarly, that portion of a damages award which relates to economic loss, representing income lost during the marriage or period of cohabitation, may also be regarded as a contribution by the party who has suffered the loss.
In my view that contribution should be seen as substantially that of the wife.
There is a dispute between the parties about the import of injections of funds received from family members. In particular, the husband would have it that the advances from the wife’s brother, for example, should be seen as contributions made on behalf of both parties. The general approach taken to gifts or advances from relatives has been to treat them as a contribution on behalf of the party who is the direct relative of the donor, unless there is evidence leading to the conclusion that the donor intended to benefit both parties. See Kessey & Kessey (1994) FLC 92-495; and Gosper & Gosper (1987) FLC 91-818, for example. Here we only have the evidence given by the parties. Sadly, the wife’s brother is not able to support or add evidence about his intentions. However, there is no reason to depart from the usual approach. The cash advances by the wife’s brother to the parties, were advances on behalf of the wife.
There have been injections of funds through the husband:
·On 27 October 1994 the husband and wife purchased the Suburb U property for $323,000. The husband’s father gave the parties $30,000 of which they applied $10,000 towards the stamp duty and $20,000 to discharge a debt owed by the husband from before cohabitation.
·In 2002 the husband received $40,000 from his father and step-mother.
·In 2006 the husband received $40,000 from his step-mother.
The wife’s income was received over a greater period and was significantly greater in aggregate than that of the husband. Aside from the compensation settlement, the direct injections of funds solely or largely through her were about $400,000 more than those on behalf of the husband. I am satisfied that the $800,000 compensation award should be seen as substantially a contribution on behalf of the wife alone. The parties had the use of about $12,000 in rent from Suburb W while they lived in the Suburb CC property. They had the interest free use of $83,000 for nearly three years thanks to Ms G. The financial contributions made by and on behalf of the wife greatly exceeded those made by and on behalf of the husband.
Section 79(4)(b) Contributions
This provision deals with direct and indirect non-financial contributions other than those made in the form of parent and homemaker contributions.
The husband deposed that the parties undertook significant renovation work to the Suburb U property, including the installation of timber floorboards and a laminated load-bearing beam, demolition of internal walls, removal of wallpaper, painting, repairs and maintenance. He said that he undertook most of the work himself except for plumbing and the internal brickwork. One of the photographs annexed to the husband’s affidavit purports to show the husband using an electric jackhammer to remove masonry flooring.
The husband deposed that the parties undertook significant renovation work to the Suburb W property, immediately after it was purchased in 1997. The work included the demolition of a large fibro shed; removal of the shed’s concrete base and driveway; demolition of the internal walls at the rear of the building, removal of the fibre board ceilings; removal of a brick laundry/outhouse at the rear of the property; removal of the timber floor at the rear of the building and installation of new timber joists and timber flooring; clearing, levelling and turfing the front and rear of the property. He said that he undertook most of the work himself except for plumbing and the foundation brickwork. He said that most of that work was done during school hours and on weekends.
The husband deposed that a few years later the parties commissioned the construction of a large swimming pool at the Suburb W property. In preparation, the husband demolished a deck; dug a new sewer line from the rear of the house to the north eastern corner of the block. After the pool was constructed the husband prepared new garden beds around the pool which he filled with several tonnes of soil and planted out. He then levelled out the backyard with several additional tonnes of soil and re-turfed that part of the yard. He said that most of that work was done during school hours and on weekends.
There was no challenge to the husband’s evidence in relation to the above evidence about the work he undertook on the Suburb U and Suburb W properties.
In 2004 the parties again undertook a major renovation work at the Suburb W property. This work involved lowering the rear of the property and installing three new floors. In regard to this renovation the husband does not contend that he personally undertook the work but he says that he negotiated with the council and the neighbours and searched out temporary accommodation for the family. Six months into the project there were problems with the builder and thereafter the husband negotiated with the builders for each part of the project and he paid the tradespeople directly. The wife also claims to have attended to that same work. She deposed that she attended on site and instructed and supervised the work.
The husband was continually involved in the cleaning and maintenance of the Suburb W property until the property was sold in 2014. In addition, the husband performed tasks to prepare the property for sale, including reinstalling and adjusting the pool fence; removing and replacing the pool filter and solar pump; removal of timber treads on the front walkway as well as sanding, re-staining and re-fastening all of the timber treads; replacement of rotten joists on the front walkway; draining and scrubbing the fishpond on several occasions; repairing drains and designing, and installing station post bases on the master bedroom balcony; rehanging a door in the master bedroom and repairing the enamel bath in that bathroom; removing, cleaning and reinstalling shower grates; repairing kitchen cupboards; removing shelving; removing the house contents including items in the attic and under the house; gardening and rubbish and waste removal. There was no challenge to the husband about that evidence.
After a 2005 motor vehicle accident which involved the parties and the children, the parties retained a compensation lawyer but the husband deposed that he dealt with issues related to the claim, attending appointments and being involved in negotiations. The husband was challenged about this evidence about his involvement in the negotiations. The wife too claimed to undertake work associated with the insurance claim. I find that each of the parties assisted with the claim.
The wife established DPL in January 1998. It is a substantial enterprise and although it has modest intrinsic value, it continues as the main vehicle for her professional income.
Each of the parties made substantial non-financial contributions.
Section 79(4)(c) Contributions
This provision deals with contributions to the family including contributions in the form of homemaker contributions and contributions to children of the marriage.
Strangely, each of the parties contends that they made the greater contribution as parent and homemaker. The wife took maternity leave for each of the children. For three months after the birth of each child she was available to the children and it is likely that she undertook the main parenting role at those times.
It is the wife’s evidence that prior to Mr M’s birth she undertook nearly all of the household tasks inside the homes occupied by the parties and that the husband undertook the majority of the duties outside those homes, including maintenance.
It is the wife’s evidence that nannies were employed when the children were young.
It is the husband’s evidence that in 1997 and after a discussion initiated by the wife in about April, he agreed with her suggestion that he leave his paid employment to care for the children and manage the household. It is the husband’s evidence that he left work in May 1997 when Mr M was three years of age and Ms N was one. He carried out the majority of the care tasks, such as feeding, bathing, putting the children to sleep, establishing routines and the like. The wife strongly rejects all of that evidence.
The husband says that following O’s birth in 1999 he continued to attend to the majority of the day to day needs of the children. He says that he made lunches; packed bags; took them to and from school; attended their medical and dental appointments; took the children to their extracurricular and social activities including swimming, soccer and rowing; attended to school enrolments; attended school events and assisted them with assignments and homework. It is the husband’s evidence that from May 1997 he also undertook most of the homemaking task, including grocery shopping, cooking, cleaning and home repairs. It is the husband’s evidence that the wife generally left home at 7.30 am and returned home at 6.00 pm. She attended at least three conferences a year, with two of them being overseas. The overseas conferences involved the wife in being away for seven to 10 days. It is the husband’s evidence that when the wife was in Sydney she was only available to assist with the children on her return from work each day and on the weekends.
The husband deposed that O was diagnosed with Type 1 Diabetes in 2006. Thereafter the husband walked O to and from school each day and attended on him at VV School each day at recess and lunch to assist him with his medication, to monitor his illness and to change his cannula. He attended all of O’s school excursions, sports days, school camps and medical appointments. In 2008 O commenced year 3 at WW School. The husband took him to and from school each day and at the commencement of each year ensured that his teachers were aware of his diabetes and how to monitor it.
It is the wife’s evidence that the husband’s attendance at VV School twice a day to administer O’s insulin only occurred for three weeks. Thereafter O used an insulin pump and the school contacted her in relation to doses.
In 2012 the wife left the Suburb W property with Ms N and O. Mr M remained with the husband. In January 2013 Ms N started living between her parents’ houses but by the end of the year she was mainly with the wife. O remained living mainly with the wife but from January to November 2015 he lived equally between the parties’ houses.
The parties have vastly different views and give irreconcilable evidence about the proportions of the parenting and homemaker role performed by each of them during the seven year period when the husband was out of paid employment. There was no real challenge to the husband in cross-examination as to his evidence about his parent and homemaker contributions. Similarly, little attention was given to the wife’s contributions as parent and homemaker, during her cross-examination. The oral evidence occupied only a few hours and neither party resiled from the thrust of their affidavit evidence.
One or both of the parties have exaggerated their evidence and I am left with the agreed facts and some probabilities. The wife took maternity leave for each of the children. For three months after the birth of each child she was available to the children and it is likely that she undertook the main parenting role at those times.
The different levels of commitment of the parties to paid employment from 1997 left the husband more available than the wife to attend on the children and to attend to household tasks. He was in fact, available for the children for significant periods of time during the working week. That said, for the periods referred to under s 79(4)(b) above, he was also heavily committed to renovating the Suburb U and Suburb W properties.
The wife has had more time with the younger children, since separation.
In my view, the parties shared the parent and homemaker role.
The husband refers to assistance provided with the children by his mother. There is no scope within this provision for contributions to be made on behalf of a party[4]. The contributions of a grandparent can be recognised under s 75(2)(o) and I will address that issue later in these reasons.
[4]In the Marriage ofRobb(1995) FLC 92-555.
Conclusion on Contribution
There is a very significant dispute between the parties about their contributions. It is an agreed fact that the contributions of the wife and those made on her behalf exceeded the contributions by and on behalf of the husband. The wife contends that her contributions represented not less than 75 per cent compared to (not more than) 25 per cent by the husband. For the husband it is argued that his contributions were 40 - 42 per cent leaving 58 – 60 per cent as the range of the wife’s contributions. Importantly, leaving aside a massive differential in income from paid employment that also favoured the wife and all of the other contributions made by each of the parties, the injections of funds through the wife exceeded those through the husband by something of the order of $1,200,000. In a net pool of about $3,900,000 that is a very significant factor.
The parties cohabited for more than 19 years and contributions were made for a further four years thereafter. In my view the imbalance in contribution would be properly recognised by a finding that the contributions were made as to 60 per cent by the wife and 40 per cent by the husband. That will create a differential between the parties of about $780,000. This is of course a matter about which minds would differ but in my view, a finding, as sought on behalf of the wife, that her contributions over 23 years were three times those of the husband (let alone the four times argued for on 29 August 2017) would be outside a reasonable range of discretion.
The other matters in Section 79
Once contributions have been assessed, the other factors in s 79(4) need to be considered. They are:
Section 79(4)(d)
Pursuant to s 79(4)(d) I am required to take into account the effect of any proposed orders on the earning capacities of the husband and wife. I was not taken to any particular relevance for the earning capacities of the parties in the range of orders proposed.
Section 79(4)(e) - Section 75(2) factors
The relevant matters in s 75(2) would seem to be paragraphs (a) and (b).
(a) the age and state of health of each of the husband and wife;
At 54 years of age the husband is four years older than the wife.
In 2006 the wife was diagnosed with another autoimmune disease. In September 2013 the wife was diagnosed with a medical condition. She was admitted to Q hospital for 14 days. She ceased working until 30 January 2014 whereupon she returned to work but with reduced hours. On 30 January 2014 the wife returned to work at DPL part-time. She started with three half days per week and gradually increased her hours. On 13 and 14 November 2015 the wife was admitted to Q Hospital for the treatment of an infection. The wife deposed that towards the end of 2015 she became ill and took three weeks off from work over the Christmas break. She then recommenced work but reduced her hours to 3.5 days per week. In August 2016 the wife suffered from a flare in her other conditions.
Dr L was appointed as a single forensic expert neurologist. He was cross-examined in October 2016. In his opinion the wife’s prognosis in relation to her medical condition is guarded but he feels that it will plateau at this stage, leaving her with persistent symptoms of excessive fatigue and ongoing persistent neuropathic symptoms. In addition she will continue to have persistent disabilities concerning her other conditions. In his view the wife has the capacity to continue to work but only at her current rate of three and a half days per week. He does not consider that the wife could work five days a week, eight hours a day. Dr L was specifically asked if the wife could work until she was 66 years of age and he opined that it is difficult to determine precisely when the wife would need to retire on a full-time basis. However, he reported that she is probably able to work at the rate at which she is working, to that age.
Following separation, the husband commenced attending upon Dr LL for the treatment of depression. There is no evidence about the impact of that condition, or any other aspect of his health, that would have a significant bearing on his financial circumstances.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
The wife’s income is $8,733 per week, made up of $8,608 in income from her company, DPL and $50 in dividends. The wife receives benefits from her employment in the form of car expenses at $50 per week and a telephone at $25 per week.
A concern is raised in the husband’s case about the accounting arrangements within the company for the income of the wife and of her business partner, Dr XX. Special arrangements are in place in relation to the share of fees and charges met by Dr XX within the practice and the wife travels and holidays with him. It is the evidence of the wife that she is not in a personal relationship with Dr XX. No other findings are possible in that regard.
Subject to Ms N’s time in YY Town, the wife lives with the parties’ three children. O had an income from an apprenticeship at $584 per week in October 2016. As was predicted then, he has since discontinued that apprenticeship. None of the children receive an income from paid employment.
The wife spends $12,550 each week, including $3,302 in income tax, $3,566 in mortgage payments and $225 in rent for Ms N, $40 in rates, $9 in other rates or unit levies, $330 on life, trauma and other insurance premiums, $133 on Visa card payments and $4,945 on living and other expenses. Of her expenses, the wife estimates that she incurs $3,548 per week for the benefit of the children.
The evidence about the wife’s assets and liabilities is set out earlier in these reasons.
It is not suggested that the wife is not fully exercising her earning capacity.
The husband’s income is $1,454 per week, made up of wages as a solicitor at $1,317 per week, $2 in bank interest and $135 in the form of compulsory superannuation contributions by his employer.
The husband spends $2,673 per week, including $381 in income tax, $135 on compulsory superannuation, $775 on rent, $98 on car, yacht and health insurance, $10 on HELP (formerly HECS), $50 on Visa card payments, and $1,211 on living and other expenses. There are no other income earners in the husband’s household. Of his expenses, the husband incurs $190 per week for the benefit of the children, the main cost of that type being $150 per week for Ms N.
The evidence about his assets and liabilities is addressed above.
It is not suggested that the husband is not fully exercising his earning capacity.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
Only O is under the age of 18.
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person;
I have set out above, what there is of the evidence in relation to the parties’ expenses. As is noted in the husband’s case, notwithstanding that her weekly budget is in deficit, the wife has had significant discretionary expenditure, including five overseas trips in 2016 and two in 2017. In the latter regard she spent just short of two weeks in Europe in January 2017 and four weeks in Europe in June/July 2017.
(f) Subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia, and the rate of any such pension, allowance or benefit being paid to either party;
Neither of the parties is in receipt of superannuation payments or Centrelink benefits.
(g) where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
The husband has a sailing boat; the wife has regular overseas travel; the Suburb U and Suburb W properties were apparently comfortable; and at least one of the children attended a private school. Otherwise there is little evidence about the standard of living of the parties.
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
There is no evidence to the effect that either of the parties proposes to take up further training or study or to establish a new business.
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;
This criterion is not relevant.
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
Each of the parties engaged in studies during the marriage. To that extent, they have both contributed to the earning capacity of the other.
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
The husband has been out of the paid workforce for periods but there is no evidence to suggest that but for the marriage, his earning capacity would have been substantially greater than it is.
(l) the need to protect a party who wishes to continue that party's role as a parent;
This is not a relevant criterion.
(m) if either party is cohabiting with another person — the financial circumstances relating to the cohabitation;
A concern is raised in the husband’s case about the nature of the wife’s relationship with her colleague, Dr XX. At times they live under one roof and at times, whether in Australia or overseas, one of them meets expenses for the other. However, I cannot and do not find that the wife is cohabiting with Dr XX in a way that would be relevant to these proceedings.
Otherwise, I have set out above what there is of that evidence.
(n) the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
There is no child support assessment.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
The husband refers to assistance provided with the children by his mother. From about October 1999 the paternal grandmother lived with the parties for six months to assist with the care of the children. Assistance was also provided through the extended maternal family.
Otherwise, nothing comes to attention here.
(p) the terms of any financial agreement that is binding on the parties.
There is no binding financial agreement.
Section 79(4)(f)
Beyond those referred to above, there are no relevant orders made under the Act.
Section 79(4)(g)
As is mentioned earlier, there is no child support assessment.
Conclusion
The relevant matters arising from the remaining elements of s 79, which include the s 75(2) factors referred to above are:
·The wife is four years younger than the husband;
·The wife’s income and earning capacities are significantly greater than those of the husband;
·The wife’s health is likely to limit her capacity to work.
In my view there should be an allowance to the husband and it should be seven and a half per cent. In the context of these proceedings seven and a half per cent represents about $291,000 and an adjustment of that order will make a difference between the parties of twice that sum. At their current levels of income, the difference is less than the difference in their gross income for two years. If the parties were to both work until they were 66 years of age, the wife is likely to be very substantially better off than the husband, by the time he retires, let alone by the time of her retirement.
Just and Equitable
Therefore the net “assets” have a value of $3,883,411. Of those assets, $333,558 is in the form of superannuation interests and $3,549,853 is made up of non-superannuation interests.
If the assets are divided in the proportions 52.5 per cent to the wife and 47.5 per cent to the husband they will have about $2,038,790 and $1,844,620, respectively.
Of the pool of assets identified by me, the wife has the benefit of and would like to retain:
Owner Description Value 1 Wife Suburb C property $4,000,000 2 Wife DPL ABN … $52,651 3 Wife NAB Account BSB … account no. …06 $14,482 4 Wife ANZ Premium Cash Management Account BSB … account no. …68 $1,655 5 Wife ANZ Account BSB … account no. …32 $4,607 6 Wife NAB Account BSB … Account no. …78 $20,000 7 Wife Investment: SS 33,319 shares, $29,126 8 Wife Investment, Property TT $6,000 9 Wife Household contents $5,000 10 Wife Legal Fees Paid to Date $181,404 11 Wife Interim distribution pursuant to orders 28.10.2016 $100,000 12 Wife Interim distribution pursuant to orders 15.6.2017 $200,000 13 Wife The Ms Hanlen Superannuation Fund
Self-Managed Superannuation Fund
$260,688 14 Wife Loan secured against Suburb C property NAB account no. …09 -$2,029,119 15 Wife Loan to NAB account no. …09 secured against Suburb C property -$304,317 16 Wife ANZ Frequent Flyer Platinum …72 -$17,830 17 Wife NAB Account …98 -$8,942 18 Wife Loan from DPL -$48,512 Total $2,466,893
In order to bring her to 52.5 per cent of the net assets ($2,038,790) she would need to pay the husband $428,103.
The balance of the joint account with the ANZ would go to the husband and he would be left with:
Owner Description Value 1 Joint ANZ Premium Cash Management Account BSB … account no. …99 $936,829 2 Husband E Trade Account BSB … Account Number …09 $8 3 Husband ANZ Account BSB … account no. …38 $1,195 4 Husband Motor Vehicle $5,000 5 Husband Yacht $35,000 6 Husband Motor bike $7,000 7 Husband Household contents $4,000 8 Husband Legal Fees Paid to Date $191,544 9 Husband Interim distribution pursuant to orders 28.10.2016 $100,000 10 Husband Interim distribution pursuant to orders 15.6.2017 $100,000 11 Husband E Super
Accumulation Interest
$72,870 12 Payment from the wife $428,103 13 Husband Personal loan from husband’s step mother, Ms Kime -$20,000 14 Husband Personal loan from Mr RR Kime -$4,000 15 Husband ANZ Visa …88 -$4,910 16 Husband HELP (HECS) -$8,018 Total $1,844,621
I will base my orders on the format of those sought on behalf of the husband. In order to implement the proposed settlement the parties will need to transfer the balance of the ANZ Premium Cash Management Account (BSB … account no. …99) to the husband and the wife must pay the husband $428,103. The husband sought that such a payment be made within seven days. That is an unreasonably short period. I will provide for the payment to be made within two months or such other time as the parties may agree in writing.
The orders are not complicated but I will provide for the parties to bring the matter back within 28 days in the event that there is a dispute as to the wording of the orders.
Conclusion under Section 79
This was a marriage that involved cohabitation spanning 19 years and very significant contributions were made by each of the parties. They acquired substantial assets and provided a secure life for their family. The parties shared the work of the marriage in different ways, with the wife as the primary income earner. Overall the contributions of the wife were significantly greater than those of the husband by reason of substantial injections of funds. An adjustment in favour of husband is justified by reference to the fact that he is older than the wife and her income and earning capacity are very substantially greater than his. In my view the division of the net assets proposed above will achieve a just and equitable division of their property.
I certify that the preceding two hundred and thirty-eight (238) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 29 September 2017.
Associate:
Date: 29 September 2017
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