Hobbs & Rickman
[2025] FedCFamC1F 96
•20 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hobbs & Rickman [2025] FedCFamC1F 96
File number(s): MLC 10277 of 2021 Judgment of: HARTNETT J Date of judgment: 20 February 2025 Catchwords: FAMILY LAW – PROPERTY – Where both parties seek an adjustment of property interests pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”) – Where there is a consideration of s 90SF(3) of the Act – Where the property pool is modest – Where both parties sought a 70/30 division of assets in their favour – Where the husband sought add-backs – Where the wife is the primary carer of the parties’ three children – Where there was a dispute as to the date of the parties’ separation – Where the parties had outstanding debts – The Court finds a just and equitable outcome to be a 60/40 percentage division of the net non-superannuation assets in the wife’s favour – Parties to retain their respective superannuation entitlements Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pts VIII, VIIIAB, ss 79, 90SM, 90SF, 90SM 90SS
Cases cited: Bevan & Bevan (2013) FLC 93-545
Blandford & Esmore [2022] FedCFamC1A 67
Burke and Burke (1981) FLC 91-055
G v G (2000) FLC 93-043
JEL v DDF (2001) FLC 93-075
Kowalski and Kowalski (1993) FLC 92-342
Mallet v Mallet (1984) 156 CLR 605
Norman & Norman [2010] FamCAFC 66
Stanfordv Stanford (2012) 247 CLR 108
Division: Division 1 First Instance Number of paragraphs: 151 Date of last submission/s: 12 December 2024 Date of hearing: 6-7 June and 18 July 2024 Place: Melbourne Counsel for the Applicant: Mr Allen Solicitor for the Applicant: MMH Lawyers Counsel for the Respondent: Ms Liano Solicitor for the Respondent: Chinka (HEP) Steel
Table of Corrections 24 February 2025 In paragraph 150, the following was added: “That is a differential of $181,529.20. In my view, that is an appropriate adjustment having regard in particular to the wife’s need to continue to provide greater financial support to the children than the husband, and in consideration of the wife’s incurring debt on behalf of the parties in relation to the agreement as to travel and residence in Europe.” ORDERS
MLC 10277 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HOBBS
Applicant
AND: MS RICKMAN
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
20 FEBRUARY 2025
THE COURT ORDERS THAT:
PROPERTY
1.There is leave to the Applicant husband to rely upon his written submissions in reply filed 12 December 2024.
2.The Respondent make payment to the Applicant, within 60 days of the date of these orders, to effect an overall division of the net non-superannuation assets of the parties of 60 per cent to the Respondent and 40 per cent to the Applicant, a sum of $308,058,040 (“the payment”).
3.That contemporaneously with the payment:
(a)the Applicant do all such acts and things and sign all such documents as may be required to transfer to the Respondent all of his right, title and interest in the property situate at and known as B Street, Suburb C in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“the Suburb C property”);
(b)the Respondent procure a discharge of the Applicant from all liability pursuant to the mortgage secured against the title to the Suburb C property and otherwise indemnify the Applicant against all and any liabilities pursuant to the said mortgage, rates, taxes, and/or other apportionable outgoings with respect to the Suburb C property; and
(c)the Applicant take all necessary steps at his own expense and execute all necessary documents to remove at his expense any caveats lodged by him or on his behalf over the Suburb C property including but not limited to caveats lodged by his former lawyers, D Lawyers and E Lawyers.
4.That pending the transfer of the Suburb C property to the Respondent:
(a)the Respondent have the sole right to occupy the Suburb C property and that during such right of occupation, the Respondent pay all instalments pursuant to all mortgage repayments, rates and taxes and like apportionable outgoings of the Suburb C property as they fall due and indemnify the Applicant in relation to same;
(b)the parties hold their respective interests in the Suburb C property upon trust pursuant to these orders; and
(c)neither party shall encumber the Suburb C property without the prior consent in writing of the other party.
Default
5.Should the Respondent fail to make the payment within 60 days of the date of the orders, the parties shall forthwith do all acts and things and sign all documents as may be required to sell their right, title and interest in the Suburb C property forthwith to be sold by private treaty at the earliest possible date at a price to be agreed between the parties in writing and failing such agreement to be determined by the proper officer of the Real Estate Institute or their nominee; with Chinka (HEP) Steel Solicitors to undertake the Conveyancing works; and upon the settlement the sale the proceeds of sale be applied as follows:
(a)firstly, to pay all costs, commission and expenses of the sale;
(b)secondly to pay all associated sale conveyancing fees;
(c)thirdly, to discharge the mortgage and any other encumbrance affecting the Suburb C property including any Capital Gains Tax but not to include the removal of any caveats lodged by the husband and/or on his behalf with any such monies necessarily applied to such removals from the Certificate of Title to be paid out of the husband’s share of the proceeds of sale;
(d)fourthly, to pay any council rates, water rates and/or other outgoings outstanding pertaining to the Suburb C property that are not otherwise the responsibility of the wife solely pursuant to earlier Court order and Order 4(a) of these orders with such monies to be paid out of the wife’s share of the proceeds of sale;
(e)fifthly, to pay 60 per cent of the remaining to the Respondent;
(f)sixthly, the balance to the Applicant.
6.The Respondent retain possession and ownership of her Motor Vehicle 1
7.The Applicant retain possession and ownership of his Motor Vehicle 2save that he is restrained from encumbering in any way the vehicle or selling or disposing of same pending his compliance with Order 8 herein.
8.The Applicant reimburse the Respondent for his half share of the sworn Valuation undertaken by KK Valuers within 28 days of these orders.
9.Unless otherwise specified in these orders and except for the purpose of enforcing the payment of any moneys under these or any subsequent orders, the Applicant be solely entitled to the exclusion of the Respondent, to the following:
(a)all bank accounts in his name;
(b)all motor vehicles registered in his name;
(c)all superannuation entitlements in his name;
(d)all tools in his possession;
(e)timber as valued in the sum of $50,000 and stored by the husband at the Suburb 56tC property or some other location as determined by him; if stored at the Suburb C property, the husband is to arrange for the removal of same at his expense and within 28 days of the making of these orders or such property as belonging to him shall be forfeited and become the sole property of the wife to which the husband shall have no further entitlement or ownership;
(f)any part of an inheritance received or to be received from his father’s estate including all related superannuation entitlements; and
(g)all other personal possessions and belongings in his possession.
10.Unless otherwise specified in these orders and except for the purpose of enforcing the payment of any moneys under these or any subsequent orders, the Respondent be solely entitled to the exclusion of the Applicant, to the following:
(a)all bank accounts in her name;
(b)all motor vehicles registered in her name;
(c)all superannuation entitlements in her name; and
(d)all other personal possessions, including household contents and any gardening or tools or other belongings in her possession.
11.The Applicant be responsible for and indemnify the Respondent, and keep her indemnified for any liabilities in his name including but not limited to all claims, demands, interests, rights, proceedings and judgements and the Applicant make all payments, including but not limited to all costs, repayments, interest or other liabilities, as and when they fall due including but not limited to all credit cards and personal debts in his name, and any tax debts he may have.
12.The Respondent be responsible for and indemnify the Applicant, and keep him indemnified for any liabilities in her name including but not limited to all claims, demands, interests, rights, proceedings and judgements and the Respondent make all payments, including but not limited to all costs, repayments, interest or other liabilities, as and when they fall due including but not limited to all credit cards and personal debts in her name, and any tax debts she may have.
13.The Applicant and Respondent do all acts and things and give all consents and execute all documents and writings necessary to give effect to the Orders made.
14.Otherwise, all extant property proceedings are dismissed and the matter removed from the list.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hobbs & Rickman has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursunt to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 24 February 2025
HARTNETT J
PRELIMINARY
This proceeding commenced in the Federal Circuit and Family Court of Australia (Division 2) on 17 September 2021 upon the applicant de facto husband (“the husband”) filing an Application for Final Orders, seeking final parenting and property orders. The respondent de facto wife (“the wife”) filed a Response to Final Orders on 25 November 2021 in which she sought parenting and property orders on both an interim and final basis.
On 9 October 2023, final parenting orders were made by consent. The orders provided for the parties’ children to live with the wife and spend time with the husband for five nights each fortnight together with holiday and special occasion times. Parental responsibility for the children resided in the wife in relation to the children’s health, and the parties otherwise had equal shared responsibility for the children. The competing property orders as sought by each of the parties remained outstanding.
Orders sought
The husband in the first instance sought final orders pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”) to achieve an overall division of property of the net non-superannuation assets as to 40 per cent to the wife and 60 per cent to the husband. He sought a transfer to the wife of his interest, right and title to the property situate at B Street, Suburb C in the State of Victoria (“the Suburb C property”) with a contemporaneous lump sum payment by the wife to him; for the wife to have sole occupancy of the property and be solely liable for all and any outgoings pending payment; and in default of such payment to the husband that the Suburb C property be sold with the proceeds being applied to: payment of the agent’s commission and other selling expenses; to the discharge of the mortgage; and otherwise the balance remaining being paid to the parties such as to effect the overall division of property as sought by him.
The wife in the first instance sought final property orders to achieve an overall division of property of the net non-superannuation assets as to 65 per cent to the wife and 35 per cent to the husband. She sought also a transfer to her of the husband’s interest in, right and title to the Suburb C property with a contemporaneous lump sum payment by her to the husband; for the wife to continue her sole occupancy of the property and be solely liable for all and any outgoings of the property; and for her to procure a discharge of the husband from the mortgage secured over the Suburb C property. In default of the payment being made by her to the husband the wife sought the Suburb C property be sold with the proceeds applied to payment of the agent’s commission and other selling expenses; the discharge of the mortgage, payment of any outgoings of the property; and otherwise the balance remaining being paid to the parties in the overall division of property as sought by her.
Both parties sought orders providing for the wife to retain possession and ownership of her Motor Vehicle 1and the husband to retain possession and ownership of his Motor Vehicle 2. The wife sought the husband reimburse her for half the cost of the valuation of the Suburb C property. The parties both sought otherwise that each be solely entitled to the exclusion of the other all bank accounts and any other personal possessions in their name and/or possession and otherwise indemnify, and keep each other indemnified, in respect of any liabilities in their respective names.
Each of the parties sought an adjustment in their favour of the other’s superannuation. The wife in closing submissions sought that the superannuation balances be taken as at the date of separation and that they be apportioned in their total sum as to 60 per cent to her and 40 per cent to the husband. The husband sought an equalisation of the parties’ superannuation entitlements as at the date of judgment delivery.
The wife sought the husband pay the wife’s costs of and incidental to the proceeding on an indemnity basis or, alternatively, according to scale. There was no evidence or reason to depart from the ordinary rule as to costs such that each party will pay their own costs.
By the conclusion of the trial the husband sought an adjustment of the property interests of the parties to effect a division as to 70 per cent to him and 30 per cent to the wife. The wife sought an adjustment to effect a division of 70 per cent to her and 30 per cent to the husband.
MATERIAL RELIED UPON
The husband relied upon:
(1)Amended Initiating Application filed 28 July 2023;
(2)his affidavits filed 19 July 2023 and 31 May 2024;
(3)Financial Statement filed 19 July 2023;
(4)affidavit sworn by Ms F, the husband’s sister, filed 31 May 2024;
(5)affidavit sworn by Ms G, the husband’s mother, filed 31 May 2024; and
(6)written submissions, and written submissions in reply, filed 10 July 2024 and 12 December 2024 respectively.
Whilst the wife opposed the husband relying upon his written submissions in reply, given they were out of time, the Court determined that the husband could rely upon such submissions noting that the contents of the submissions did not ultimately alter the Court’s determination in the matter.
The wife relied upon:
(1)Amended Response to Final Orders filed 1 August 2023;
(2)her affidavit filed 28 May 2024;
(3)Financial Statement filed 25 November 2021; and
(4)written submissions filed 12 August 2024.
Each of the husband and wife’s evidence was challenged in part by cross-examination, as was the evidence of the husband’s sister and mother.
RELEVANT FACTUAL FINDINGS
In 1971, the husband was born in Australia. He was 53 years of age at the commencement of the trial. He is employed full time as a manager at H Company in receipt of income of approximately $110,000 gross, including superannuation.
In 1977, the wife was born in Country J. She was 46 years of age at the commencement of the trial. She is employed as a professional in receipt of income of approximately $115,000 gross, including superannuation.
In 2001, the husband purchased the Suburb C property for the sum of $186,000. The husband paid a $10,000 deposit from loan monies obtained by him and obtained a mortgage loan from the ANZ Bank for the balance. That is, he had no equity in the property but had managed to secure its purchase.
From 2002 to 2005, the husband alleged that he spent approximately $25,000 on renovations to the Suburb C property. He had earlier deposed that he had expended the sum of $45,000 but resiled from this claim at trial. The husband produced no documentary or other probative evidence to support his claim as to any expenditure by him. I accept, however, that he expended some minimal funds on chipboard-type flooring and some electrical work at a cost more in the vicinity of $10,000. He also personally performed some labouring tasks.
In 2004, the parties met through an internet site. The wife, at the time, was residing in Country J, with plans to travel to Australia on a working visa.
By 2005, the husband had a HELP debt of approximately $10,000 in relation to two tertiary courses commenced by him but not pursued beyond the first year; a personal loan owing of $10,321.46; and a further loan amount owing of approximately $10,000 as claimed by the wife though I am unable to make a finding on the evidence as to this last asserted sum.
In 2005, the wife relocated to Australia as part of a work exchange program. She commenced full time employment at K Organisation. She took up rental accommodation. The husband was at the time in full time employment “in sales” with L Company.[1] The husband and wife pursued their relationship with the wife joining the husband’s family for Christmas Day in 2005.
[1] Transcript 6 June 2024, p.21 line 23.
In February 2006, the parties commenced cohabitation in the Suburb C property. The husband deposed that, when the wife moved into the property, he had already paid $22,000 off the $176,000 mortgage (he provided no documentary proof). It was the wife’s evidence that the husband had paid $13,000 off the mortgage. It is probable that the husband had reduced the mortgage by the sum asserted by the wife. The husband also claimed that the house was valued at $340,000 to $370,000 (or $320,000 to $340,000 as asserted at trial). He claimed the improved value was a result of the renovations undertaken by him and a rising market. To support his claims, the husband sought to rely upon a retrospective market analysis of the Suburb C property as provided to him by a real estate agent in 2022/2023. That analysis was not probative evidence, nor in admissible form, and I gave it no weight. The husband’s father described the wife as moving into the husband’s “fairly meagre conditions” home in a statutory declaration made by him in January 2007. The evidence of the wife, which I accept, was that the home had no kitchen, a fact agreed by the husband, had no proper floorboards, had no internal wall or ceiling, no plastered walls, had no heating or cooling, and needed completion and improvement including painting to enable a comfortable standard of living for the couple. There needed also to occur the removal of the asbestos sheets in the backyard.
At the commencement of the parties’ cohabitation the wife had $10,000 in savings, $20,000 in superannuation, and $56,000 in shares as all obtained by her prior to her arrival in Australia.
In 2007, the parties’ child X was born. He was 16 years of age at the commencement of trial.
Following X’s birth, the wife resigned from her full-time employment, and became self‑employed, operating as a sole trader and taking on contracts with various companies. She opened at least one business banking account in respect of the operations of her business. This change in work type enabled her to care for X as the primary carer.
In mid-2008, the husband ceased his employment with L Company.
In or around mid-2008, the husband commenced employment with M Company.
In 2009, the husband added the wife’s name to his personal ANZ bank account into which he deposited his wages. Prior to that each of the parties had their own bank account(s). Thereafter, the parties deposited all Centrelink monies as received by them during their relationship into the joint ANZ bank account. The wife continued to deposit her income received into a bank account in her name and/or the business name of her sole trader entity, and she thereafter transferred some of those funds to the joint account being funds she did not need to meet her business obligations, and funds not applied by her to direct payment of some of the various expenses of the family.
In 2009, the parties’ child Y was born. He was 14 years of age at the commencement of trial. The wife took a short period of time off to care for the newborn baby.
In early 2011, the husband left his employment at M Company. Shortly thereafter, the husband and wife started a business with $10,000 which I accept was loaned to them by the maternal grandfather. That venture was established to provide a business for the husband who was then unemployed. The business was unsuccessful, and the borrowings advanced by the maternal grandfather were not repaid to him. This became, at trial, a contribution made on behalf of the wife who did not seek any orders with respect to the repayment of this loan, nor any adjustment in her favour because of it. Her evidence was that she had given some assistance to her parents over the years.
In early 2011, the wife sold her shares as brought into the relationship by her in 2006, for a sum of $69,171. She then invested those monies in a term deposit to take advantage of a good interest rate.
In 2011, the parties’ child Z was born. He was 13 years of age at the commencement of trial. After Z was born, the wife essentially ceased working for four years to care for X, Y and Z and to “help fast track renovations of the family home and build a new extension to the home”.[2]
[2] Wife’s affidavit filed 28 May 2024, paragraph 18.
In mid-2011, the husband commenced employment with N Group.
In November 2013, the wife withdrew an amount from her EE Bank account of $50,000 and applied that sum to a reduction of the mortgage secured by the Suburb C property. These funds derived from the wife’s savings brought into the relationship, share sales and/or otherwise a part of her earlier earned income as invested to obtain the best applicable interest rates – a course which she pursued throughout the parties’ cohabitation, and thereafter. In pursuit of that course, the wife had an array of bank accounts, mostly in her name, with some in the joint names of the parties. Whilst no real explanation was given by the wife as to her having something approaching 60 bank accounts in all, as asserted by the husband, there was, I find, nothing sinister or secretive, or involving secretion of funds from the husband in the wife’s banking methods. She simply did not have the capital or income in these years to do anything more than make the financial contributions that she did make to the parties’ asset pool. The husband’s modest income was otherwise necessarily fully applied to the family and parties’ expenses.
In December 2013, the wife applied further funds (as derived in the manner as described above) in the sum of $39,100 toward reduction of the mortgage. The mortgage was $123,122.83 on 8 November 2013. The wife’s application of the $50,000 and these further funds, together with another approximately $4000 as applied by the wife, resulted in a mortgage balance of $29,850.22 in December 2013. The mortgage repayments were reduced to a weekly sum of $139.73.
The parties thereafter commenced construction of an extension to the Suburb C property at a cost of approximately $130,000 with the husband performing some of the labour with a friend, and the wife looking after the finances in respect of the building. The parties did not obtain further borrowings to fund this construction cost. Part of the wife’s tasks ultimately involved instigating and running a VCAT proceeding in respect of defective building works as carried out by a builder the parties had engaged in respect of the extension construction. The extension was completed in 2015. The parties received around that time a settlement in respect of the litigation in the sum of approximately $30,000 which was placed by them in their joint bank account, and later applied to their expenses.
In 2015, the wife returned to her contract work, commencing to work for O Company. She continued, however, to be the primary carer for the children.
In early 2017, the wife travelled with Z to Country J for one month. The purpose of her travel was to spend time with her elderly parents. The husband remained in the family home caring for the other children.
In mid-2017, according to the wife’s evidence, which I accept, the husband and wife separated (under the one roof) on a final basis.
The parties around mid-2017, and through to 2019, had mediation with P Family Services, and engaged in counselling sessions which canvassed the manner of care of their children. They attempted resolution of property matters between them consequent upon their relationship breakdown.
In late 2017, a final Family Violence Order (“IVO”) was made in the Suburb C Magistrates' Court naming the wife and children as protected persons and the husband as the defendant. The husband consented to this order and its duration was 12 months. The husband moved out of the Suburb C property.
In or around late 2017, the husband ceased his employment at N Group. He thereafter commenced employment with Q Company.
In or around mid-2018, the husband ceased his employment with Q Company. He remained unemployed for approximately six months. With the wife’s agreement, he moved back into the Suburb C property. He slept in a separate bedroom to the wife. He was, around this time, receiving child support from the wife of $204 per month as assessed on her income of approximately $42,359.
From separation and through to mid-2019, the parties shared the care of the children by having the husband spend time with the children at the Suburb C property where the wife remained residing with the children. The husband’s care of the children included care over four nights each fortnight.
In 2018 and 2019, the wife, from her income, put a total sum of $40,000 into the three children’s Commonwealth Bank accounts, these accounts having commenced in the children’s early primary school years when they were exposed to a saving program. Those accounts had been added to over time by the parties, and post separation by the wife solely. The husband claimed in his evidence that he was unaware of these accounts. I do not accept his evidence and prefer that of the wife which was that he was aware of the accounts and had been so since their inception.
In or around late 2018, the husband commenced working full-time for H Company as a Manager. He has remained in that employment.
In around early 2019, the husband agreed to the wife’s proposal for the husband, wife and children to relocate to Europe. It was her proposal that they would remain separated, earning and retaining their own incomes, acquiring their own accommodation, and that both would care for the children. It was to be a trial for the family to see if they could adapt to living in Europe. The wife made this proposal to the husband as she knew that he would not permit the children to reside outside the Commonwealth of Australia unless he accompanied them.
Between mid and late 2019, the wife searched for, and found, employment in Europe, and organised schooling and accommodation in Country R, as well as Country S. The wife applied for a European Union residency permit and signed all relevant applications required for the children to travel to and reside in Europe.
Between mid-2019 and early 2020, the wife travelled between Australia and Europe a total of eight times, totalling 18 weeks of travel to make the necessary arrangements for the parties and children to reside in Europe. The husband cared for the children during those times.
In mid-2019, the parties and children travelled to Country J to spend time with the maternal grandparents before spending some weeks in Europe holidaying. The husband travelled alone to Country R. The parties slept in separate rooms save for when the family slept in one room. The wife paid for all the associated travel expenses of this six-week trip. The wife’s evidence as to this period in their lives was that the husband and wife did try to ‘work things out’ between them. That did not come to pass.
In December 2019, the husband changed his position regarding relocation to Europe and refused his permission for the children to relocate. The wife subsequently cancelled her plans to relocate, and the husband, wife and children remained resident in Australia. The husband and wife commenced a further parenting arrangement to care for the children. The husband resided with a friend but cared for the children in the family home during his times of care.
In March 2020, on the husband’s evidence, the parties separated on a final basis.
In mid-2020, the wife commenced working full-time at T Company.
In July 2020, the wife ended the ‘nesting’ parenting arrangement and requested that the husband spend time with the children at a place other than the Suburb C property. The husband did not contact the children thereafter until November 2020, citing his poor mental health.
In 2020, the husband’s father died intestate. The husband received a motor vehicle and some fishing rods from the estate, noting that he deposed in his affidavit material that he “received [his] Father’s fishing rods and nothing further”.[3]
[3] Husband’s affidavit filed 31 May 2024, paragraph 105.
In early 2021, an interim IVO was made on the wife’s application in the Suburb C Magistrates’ Court. The wife and children were protected persons and the husband, the defendant. The IVO prohibited the husband from, relevantly, committing family violence against; intentionally damaging property of; attempting to locate; publishing on the internet or by other means material about; contacting or communicating with; or approaching or remaining within 10 metres, of the protected persons, save for things permitted by an order under the Act. The husband was subsequently convicted and fined in respect of three breaches of the order.
In early 2021, the wife borrowed EUR110,000 from a private investor in Country U and registered the company ‘V Pty Ltd’ in Country R with three other business partners from Country R. The wife intended to build and commercialise a product through this business.
In or around mid-2021, Child Protection opened an investigation against the husband.
In or around mid-2021, the wife’s employment at T Company ended.
In mid-2021, Child Protection closed their investigation against the husband, stating that they were satisfied with the protection afforded by the IVO dated early 2021.
On 17 September 2021, the husband initiated these proceedings.
From October 2021, the husband spent two hours each week with the children.
In or around October 2021, the wife deposited funds from her bank account into the W Bank trading platform. As at May 2024, the wife had approximately $20,000 of funds in the W Bank trading platform.
In early 2022, the wife commenced working part-time at AA Group.
From April 2022, the husband spent alternating Saturdays with the children for seven hours and had telephone contact with the children each Wednesday.
In early 2022, the 2021 interim IVO was made as a final order.
From July 2022, the children commenced fortnightly overnight weekend time spent with the husband.
On 16 September 2022, orders were made relevantly, that an asset of the parties be valued at $50,000.
In late 2022, the husband was sentenced by the Magistrates’ Court of Victoria for breaches of the early 2021 IVO. He was fined and given a 12-month good behaviour bond.
In 2023, the wife was unable to deliver on her contractual obligations through the ‘V Pty Ltd’ business in Country R. The wife was also fined by the Country R Taxation Office for failing to meet her tax obligations in Country R.
In early 2023, the IVO was extended on an interim basis. At trial, it remained as further extended on an interim basis in 2024.
In mid-2023, the wife received a summons to City BB District Court as a director and board member of the ‘V Pty Ltd’ company. The dispute is ongoing, with the business yet to file and pay GST and annual tax returns for the past four years as at the trial date.
In January 2024, the Suburb C property underwent mould remediation work which left three bedrooms, the hallway and lounge without parts of the ceiling, skirting boards and electricity. The wife contended that the house’s condition was below average and required $115,000 of work to bring it to a liveable and building standard-compliant condition. This claim of the wife’s was not supported by evidence.
In or around February 2024, the wife repaid the loan of EUR110,000, to the private investor in Country U, which she had borrowed in April 2021.
In 2024, the wife’s mother died. Her father is about to take up residence in Australia in her home.
LEGAL PRINCIPLES
Section 90SM of the Act provides:
(3)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.
It is necessary to first identify the existing legal and equitable property interests of the parties. It must not be assumed the parties’ rights to or interests in property are or should be different from those that then exist, or that a party has the right to have the parties’ property divided by reference to the statutory considerations (see Stanfordv Stanford (2012) 247 CLR 108 at [37]– [40] and [50]).
Although in Stanford v Stanford (2012) 247 CLR 108 the High Court was dealing with an application between spouses for property settlement pursuant to Pt VIII of the Act, the principles apply equally to applications between de facto partners pursuant to Pt VIIIAB of the Act.
If and once determined it is just and equitable for the identified property interests of the parties to be altered, the process of evaluating the proper orders to make is dictated by the factors enumerated within s 90SM(4) of the Act. The Court must necessarily identify and assess the parties’ contributions within the meaning of ss 90SM(4)(a)–(c) and then take account of the relevant matters referred to in ss 90SM(4)(d)–(g) and 90SF(3) of the Act.
Section 90SM(4) of the Act provides:
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) 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 de facto relationship 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 de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) 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 de facto relationship or either of them; and
(c) the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, 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 de facto relationship; and
(e) the matters referred to in subsection 90SF(3) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
Section 90SF(3) of the Act provides, relevantly:
(3) The matters to be so taken into account are:
(a)the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship); and
(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; and
(c) whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
(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; and
(f) subject to subsection (4), 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; and
(g) a standard of living that in all the circumstances is reasonable;
…
(q)any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
(r)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
…
It is permissible for the factors prescribed by s 90SM(4) (the counterpart to s 79(4)) to inform the inquiry under s 90SM(3) (the counterpart to s 79(2)) of the Act about the justice and equity of making property settlement orders (see Bevan & Bevan (2013) FLC 93-545 at [83]–[89], [163], [169] and [171]–[172]).
It has been determined that, in undertaking the task of considering the totality of the parties’ contributions in a holistic manner, it is inappropriate for a trial judge to adopt an ‘accounting’ or ‘scoring’ approach to each separate contribution. As explained by the Full Court in Blandford & Esmore [2022] FedCFamC1A 67 at [14], adopting such an approach is flawed because it “would not only require detailed actuarial calculations with respect to financial contributions (which would rarely be possible on the evidence generally available in property settlement cases), but it would still leave the significant problem of how to convert the qualitative factors in s 90SM(4)(b) and s 90SM(4)(c) of the [Act]”.
Section 90SS of the Act grants specific powers to a Court to make a range of different orders to adjust property interests between the parties.
I am satisfied that in all the circumstances of this case it is just and equitable to make orders adjusting the parties’ property interests. Indeed, the parties ask the Court to do so.
EVIDENCE
Statements of fact in these reasons are findings of fact on the balance of probabilities unless the context indicates otherwise.[4]
[4] Evidence Act 1995 (Cth) s 140.
It is not necessary in these reasons for judgment to comment upon the entirety of the evidence including the evidence of each witness, nor to comment on every exhibit tendered. Nor have I done so. However, every piece of evidence relied upon by the parties has been read and carefully considered by me.
The husband
The husband was not always a reliable witness. He was, at times, evasive.
The wife
The wife was a reliable witness. Generally, where the parties evidence differed, I preferred that of the wife save as otherwise indicated in these reasons.
THE ASSET POOL
Assets
Ownership
Value
B Street, Suburb C
Joint
$870,000
ANZ Bank Accounts
Husband
$31,000
CC Bank Accounts
Wife
$11,285
DD Bank Accounts
Wife
negligible
Motor Vehicle 2 (registration: …)
Husband
$7,500
Motor Vehicle 1 (registration: …)
Wife
$3,500
Timber
Husband
$50,000
Tools
Husband
$5,000
Assets subtotal
$978,285
Liabilities
Ownership
Value
Mortgage secured over B Street, Suburb C
Joint
$17,354
ATO debt
ATO (H)
ASIC Wife (W)
$27,000 (H)
$1260.00 approximately (W)
DD Bank Credit Card debt
Wife
$3,220.50
V Pty Ltd
Wife
$16,809
Company GST Payable
Wife
$10,998
Company Income Tax Payable
Wife
$9,533
Tax on First Home Super Saver
Wife
$3,500
Liabilities subtotal
$89,674.50
Net asset pool
$888,610.50
Superannuation
Ownership
Value
Superannuation
Husband
$174,122.03
Superannuation
Wife
E$245,368
Superannuation subtotal
$419,490.03
Matters going to the asset pool
The parties agreed that each of their bank accounts are derived from their post-separation income and should not be available for distribution between them but rather remain as their own property. Accordingly, those sums shall not be included as part of the asset pool available for adjustment between the parties. Likewise, the parties agree that each party shall keep the motor vehicle in their possession and ownership without financial adjustment in respect thereto. The Court notes the compromised value of each without expert evidence, and considers the course proposed by the parties as appropriate, just and equitable. The parties’ personal and legal debts shall also fall to each separately, as acknowledged to have been incurred post‑separation save for that of the debt owing to Centrelink of $27,000 in the husband’s name. That remains a debt to be repaid by the husband which is taken into account in the s 90SF(3) considerations. It is not a debt to be shared with the wife in terms of her taking on any liability to repay same given the unsatisfactory nature of the husband’s evidence as to how it was incurred by him. No findings could be made to the necessary standard of proof that the wife should bear any notional or otherwise liability for same. The council rates outstanding ($1224) in respect of the wife’s occupation of the Suburb C property are acknowledged by her to be her sole responsibility as are her various company and personal debts.
The husband’s claim that the asset pool should have added to it a nominal amount of $20,000 for pottery sales as obtained by the wife, was not supported by any probative, corroborative or proper evidence, and was a claim denied by the wife. In these circumstances, I cannot make a finding that it is probable the wife received such monies, and those alleged monies accordingly do not form part of the asset pool.
The parties’ child X purchased a motor vehicle for $35,000 with funds in his bank account. The husband sought this asset be added to the parties’ pool of assets. The husband also sought that the wife’s expenditure of $70,000 approximately, on obtaining permission for her father to enter and reside in Australia, be added to the asset pool being monies coming from the children’s accounts. I have determined that neither should occur because I am satisfied on the evidence that these funds were gifted to X by the wife solely, and out of her post-separation income and business operations. The migration monies applied by the wife for her father’s benefit were likewise from that same source of income and from the other children’s accounts, in accordance with their wishes.
While each of the parties made allegations of family violence, one against the other, the wife’s claims being more extensive than that of the husband, neither party ran an argument that there should be a property adjustment in their favour consequent upon the impact of that family violence and acknowledged same.
The asset pool thus comprises the Suburb C property, the material and tools totalling $925,000 less the mortgage encumbrance of $17,354. This is a value of $907,646 (“the net non-superannuation assets of the parties”).
Date of Separation
The husband claimed that the parties separated on a final basis in March 2020. The wife’s evidence was that the parties separated under one roof in mid-2017.
The wife’s evidence in respect of the alleged separation date included that:
(a)An IVO was made in late 2017 against the husband, listing the wife and children as protected persons;
(b)The husband moved out of the Suburb C property in 2017 for a period of six months, before moving back into the property in 2018 and staying in a separate bedroom from the wife;
(c)A Child Support Assessment was finalised in 2017, and the wife began paying the husband child support, as evidence by each of her tax returns in 2017, 2018 and 2019 (although the husband alleged that he was unaware of the existence of the assessment, or that the wife was paying him child support);
(d)The wife was receiving a single parenting payment from Centrelink in 2017;
(e)The husband and wife attended family counselling sessions in December 2016, February 2017, March 2017, June 2017, July 2017 and November 2017; and
(f)The husband and wife attended family dispute resolution on three dates in late 2017.
I accept each of the above matters and prefer the wife’s evidence as to the date of separation being that the parties separated in mid-2017. It is probable that the husband hoped for a reconciliation for some time, and perhaps even refused to acknowledge the reality, but the wife was clear in her intention to end the relationship and took many actions that indicated, and provided proof of the fact, that the parties separated around mid-2017.
Disclosure
The husband asserted that the wife consistently failed to disclose relevant documents in relation to her various bank accounts across a variety of banks.
It was the wife’s evidence that she did in fact transfer funds between bank accounts in her name for the purpose of benefitting from the best interest rate available at differing times, and that she did not hide such funds from the husband.
The wife denied the husband’s allegations as to her failure to provide full and frank disclosure and submitted that the husband failed in his duty of disclosure in respect of the inheritance received from his late father and in respect of his superannuation entitlements, the latter being a complaint made by each party about the other.
I am not satisfied that any failure to disclose matters by either party should impact upon the outcome of this proceeding. None was sufficiently material or determinative.
Add-backs
The husband submitted that the wife caused wastage in the amount of approximately $198,000 being approximately $24,000 a year or some other figure approximating that. It was the husband’s contention that, commencing in 2009 and continuing for approximately nine years, the wife unilaterally withdrew various amounts from the parties’ joint account and secreted the funds so obtained in Westpac, FF Bank and EE Bank accounts in her sole name which were unknown to the husband. This position as taken by the husband was not supported by the evidence. There was also not a skerrick of common sense or logic in that approach.
The wife could not have advanced to her further funds by way of re-draw on the husband’s mortgage secured by the Suburb C property. She could simply invest her initial contribution and a part of her income when earning it.
The husband’s net income as deposited into the parties’ joint bank account from 2009 until 2018 was a sum referable to an annual gross income of approximately $45,000. The wife’s income was considerably less given that she did not work for four years because of her primary caregiving role to the parties’ three young children. The husband’s income was used to support the family, including the mortgage repayments, various household bills and the children’s expenses and the wife’s income, when earnt, was used for other family expenses, or applied to savings later placed into the mortgage reduction or applied to the extension costs.
The husband submitted that a “[f]orensic account[ant] would be able to find [Ms Rickman’s] earnings…and other bank accounts that I cannot trace” but the husband did not appoint a forensic accountant for this purpose.[5] Without the evidence of such an expert before the Court, and on the evidence available to me, including the wife’s denials and the fact of their income receipts, I am unable to make any findings as to the wife removing funds from the parties’ assets.
[5] Husband’s affidavit filed 31 May 2024, paragraph 67.
Further, the parties separated in mid-2017. The husband stated during cross-examination that he did not check statements from the parties’ joint ANZ bank account throughout their relationship. Had he done so, he would have discovered everyday family expenses for a family of five.
The husband’s very-late-in-the-litigation assertion that the wife had withdrawn the sum of $198,000 from the parties’ joint account and wife’s accounts over years, between 2009 (when the husband commenced to place his income into a joint account with the wife) and 2017 or 2018, as not disclosed by her, and has retained such funds for herself, was an extraordinary claim with no probative evidence. It was extraordinary because he knew of each of the parties’ respective incomes (or, in the wife’s case, no income at times) and the financial resources available to them. He also knew they had three children to support and an extension to pay for. They managed well on modest incomes, the wife’s good financial management, and with the benefit of what each had at the commencement of the relationship.
Children’s Money
The wife deposed to gifting over $100,000 cash to the children out of business operational revenue as earned by her solely post-separation, which resulted in unpaid taxation debt to be paid by her of approximately $40,000.
The wife deposed that the entirety of the cash gifted to each of the children has now been spent in accordance with their wishes.[6] One part of that was X’s car as referred to above in these reasons.
[6] Wife’s written closing submissions filed 4 September 2024, paragraph 51.
I am satisfied that the husband knew of the children having their own Commonwealth Bank Accounts as controlled by the wife, contrary to his assertion. The husband probably did not know of the wife’s contributions to those accounts post separation and at the time of her gifting such monies, nor the debt she incurred in respect of those gifts as made by her to the children. These are not monies to be now notionally apportioned between the parties. In my view, that type of application of the wife’s post-separation income as gifted by her to the children would not be appropriate, nor just and equitable.
Inheritance
In 2020, being after the parties’ separation, the husband’s father died intestate. The entire estate, save for a motor vehicle (which the wife alleged to be worth between $10,000 and $15,000) and some fishing rods, both of which were given to the husband, was distributed by Ms F to herself, being $66,479 in cash and $130,000 in superannuation. Ms F withdrew the superannuation as cash. At the final hearing, Ms F gave evidence that approximately $60,000 from the estate was remaining. On the evidence, it was clear that Ms F had not conveyed to her brother (the husband), the only other sibling, the quantum of the distribution received by her.
In these circumstances, the wife’s contention that some of the estate monies should go into the asset pool as property of the husband could not be supported. I also consider a modest car received by the husband some years after the parties’ separation to be the property of the husband solely, and property in relation to which the Court should make no adjustment.
Centrelink Debt
The husband accrued a debt with Centrelink which he alleged to be a joint liability of the husband and wife. The debt covers an unknown period, with the start date not known, and with the precise reason for its accrual unknown to the Court. The husband’s evidence was vague, and implausible. The husband gave evidence that, because he was “never checking” the bank statements relating to the parties’ joint ANZ bank account,[7] he was unaware that he, or the wife, were ever receiving payments from Centrelink. I do not accept this evidence. It shall remain the husband’s personal debt as referred to above in these reasons.
[7] Transcript 6 June 2025, p.39 lines 13-14.
Wife’s Loans and Debts
The husband challenged two loans which the wife evidenced as explanation for the transfer of significant funds from her GG Bank account. These are detailed below.
‘Loan Agreement No. …’
In early 2024, the wife transferred a total of EUR120,000 to Mr HH over five separate transfers which she deposed to being repayment of a loan to a private investor in Country U.[8]
[8] Annexure “[MR-8]” to the wife’s affidavit filed 28 May 2024.
The husband submitted that, as the wife did not produce evidence of the transfer of loan funds to her account, there is a question to be asked as to whether the loan ever existed.
The husband further submitted that the loan agreement in respect of these borrowings was not binding on the wife.
The wife considered herself bound to repay the debt and did so. That is to be applauded. I am satisfied that such a debt existed as payable by the wife on her evidence. The wife’s financial circumstances at the time of the loan advance were not such that she could obtain the funds to co-establish the business in respect of which the loans were advanced without an advance of those funds from a third party.
‘Subcontracting Agreement’
From September to November 2023, the wife transferred an amount which the parties agreed was approximately EUR170,000 from her GG Bank account to her JJ Bank account over seven transfers. She deposed to the transfer of these funds, in which ever amount it was, being to return monies to a Country R customer for whom she could not fulfil a contract.[9] She further deposed that the JJ Bank account registered in her name, to which the funds were transferred, is controlled by her business partners. I accept her evidence.
[9] Wife’s affidavit filed 28 May 2024, paragraph 69cc.
The husband submitted that the subcontracting agreement, through which the wife deposed to having obtained the funds, was not a binding agreement as the wife did not provide evidence of how Country R law impacts on the interpretation and/or validity of such an agreement. Again, the wife considered herself contractually bound and had received funds from a third party without that third party receiving what they had contracted for. She did what she should have done – repaid it.
Superannuation
At separation in 2017, the husband’s superannuation benefits were in the sum of $96,320. The benefits of the wife were in the sum of $122,684. In his Financial Statement filed 19 July 2023, those benefits as owned by the husband were $174,122.03. At trial, the husband did not disclose his then entitlements. Nor did the wife, but I infer the sum of $245,368 approximately were the superannuation benefits as accrued by the wife to the time of trial.
In all probability, the parties’ superannuation entitlements would be fairly equal or marginally in favour of the wife. The wife has contributed to her superannuation fund in the making of excess contributions since separation. The wife will have considerably more expenses in raising the children into the future than that of the husband.
I propose to make no adjustment to the parties’ superannuation entitlements such that each party shall retain those superannuation benefits presently belonging to them.
Contributions
The Court must consider the contributions of the parties in an overall sense (Norman & Norman [2010] FamCAFC 66; Kowalski and Kowalski (1993) FLC 92-342; G v G (2000) FLC 93-043). A broad approach is preferred, rather than reference to precise mathematical calculations (Burke and Burke (1981) FLC 91-055), although an evaluation of each party’s respective contributions is necessary (JEL v DDF (2001) FLC 93-075). Assumptions about equality of contributions should not be made, and there is no assumption that equal division is the starting point for any exercise of the Court’s discretion.[10]
[10] Mallet v Mallet (1984) 156 CLR 605 at [610], [613], [625], [635]–[636], and [646]–[647].
Initial contributions
At the commencement of the parties’ cohabitation, each of their contributions were as set out in the factual findings above. The husband sought an adjustment in his favour which the evidence did not support. The wife sought an adjustment in her favour for her submitted ‘significantly higher contributions’. I do not find the wife’s contributions to have been ‘significantly’ greater than those of the husband. The husband had paid the associated costs of purchase of the Suburb C property and paid down some of the mortgage. The wife’s shareholding, which ultimately became a larger sum by virtue of the wife’s careful application, directly assisted the parties in growing their equity in the Suburb C property and was a larger contribution in the entire context of the parties’ initial contributions.
I find that an adjustment in the wife’s favour is warranted but only to the extent of 1.5 per cent.
Contributions during the relationship
During the relationship, the husband worked full-time, with periods of unemployment. He was extensively involved in the house renovations. Following the birth of X in 2007, the wife resigned from her full-time employment and commenced taking contract roles with various companies as a sole trader. Following the birth of Z in 2011, the wife ceased employment to care for the three children, and to attend to the house renovations and extension before, some years later, returning to the workforce.
Both parties conceded the other’s contribution to the care of their children and welfare of the family, and agreed their contributions were equal. The wife submitted that the parties’ contributions to the renovations and extension of the Suburb C property were equal. The husband in evidence stated that he could not deny such contributions were not equal, but he could not admit they were. I find they were equal.
It was, overall, however, the husband’s position that the parties’ financial contributions were not equal and that he required considerable adjustment in his favour. He claimed that the wife had deceptively taken $198,000 from the parties’ bank accounts between 2009 and 2017, a fact of which he had only become aware in 2024. His evidence was that, during the relationship, he did not look at the parties’ bank accounts and that he had not looked at the joint account into which his wages went for over 10 years. The parties’ joint bank account had deposited into it the husband’s wages, the parties’ Centrelink receipts, and some of the wife’s wages (when in employment) up to separation in 2017. The husband claimed that the wife removed significant funds from this account. Otherwise, he asserted that the wife obtained monies by depositing, and then withdrawing, the monies placed by her into the Suburb C property mortgage account.
The wife’s response to the husband’s claims was to deny that she had removed, and kept to herself, $198,000, in large part from the parties’ joint bank account. She agreed that money came out of this account as accessed by her, but her evidence was that such funds were applied by her to the parties, and particularly the children’s, daily living and other necessarily incurred expenses. The parties had their first child in 2007 and their second in 2009. It is at this time that the husband asserted the wife commenced to secrete monies away from him. Two years later, following the birth of their third child, the wife ceased working entirely for four years. They separated in 2017. The parties lived on the money in the joint bank account and on the wife’s sole contractor income as received by her between 2007 and 2011 and thereafter as an employee from 2015 to 2017. Neither party had a large income. They applied such modest income to their household expenses. The mortgage outstanding in respect of the Suburb C property was reduced in quantum by application of the wife’s pre-cohabitation monies. Indeed, the mortgage was in the husband’s sole name and the wife had no ability to draw down on the mortgage without the husband’s knowledge and consent. The husband put no probative evidence before the Court to support his claims.
The wife’s explanation as to her application of these funds over many years is plausible and is supported by the evidence.
The wife submitted that the parties’ myriad of contributions during this period should be assessed as equal. The husband submitted that the parties’ financial contributions were unequal, with his contributions being significantly larger because of his claim as to the wife removing approximately $198,000 from the parties’ funds for her sole benefit between 2009 and 2017. The evidence and my findings are contrary to the husband’s assertions.
I find the parties differing and extensive contributions to have been equal.
Contributions post-separation
Following separation, the wife continued to reside in the Suburb C property. The husband has resided in that property, with friends, and in rental accommodation with his rental payments being $300 per week. The husband has paid, as has the wife, child support assessed payments to the other.
The wife has had primary care of the parties’ three children. That care will continue. In the years since separation, she has made a greater financial contribution to their needs than that of the husband.
The husband paid the mortgage on the Suburb C property in 2017 and until February 2018, when the wife commenced making the mortgage repayments, which she continued until 2 August 2019, when the husband commenced sharing half of the mortgage repayments with the wife. The wife continues to pay the cost of all outgoings, rates and relevant insurance premiums.
The wife applied $30,000 toward renovations of the Suburb C property post-separation. This expenditure was not challenged by the husband. Those funds, I accept, were applied to:
·Complete major and minor roof repairs;
·Complete the bathrooms, as well as organising plumbing and electrical work;
·Replace the back fence;
·Level and restump the house;
·Install new doors;
·Replace windows, a broken water pump, and leaking shower and outdoor taps; and
·Repair the side fence and gate.
The wife also gave evidence that she furnished the children’s bedrooms with desks, beds, shelves, lights, rugs and wardrobes.
In mid-2019, the wife sought to relocate to Europe for work. She proposed to the husband that he accompany her and the children, acknowledging that the husband would not consent to the wife removing the children from the Commonwealth. The wife asked the husband which of Country R, Country S, or two other countries he would wish to reside in. The husband consented to this relocation, and the husband and wife started organising to relocate to Europe with all three children. The wife travelled to Europe eight times between mid-2019 and early 2020 to find employment and make other arrangements for the parties’ relocation with the children. Whilst the wife was travelling outside of Australia, she paid for groceries for the children, paid bills as they fell due, and paid for “other expenses…for the children and the [husband]”.[11] The husband provided care to the children during the periods that the wife was overseas. The wife secured employment with W Bank and was paid a lump sum of $55,000 for the costs associated with relocating to Europe. In December 2019, the husband withdrew his consent for the children’s relocation to Europe. As a result, the wife forfeited the $55,000 payment as earlier made to her, to remain in Australia with the children. The wife expended income as earned by her in pursuit of this failed endeavour.
[11] Wife’s written closing submissions filed 4 September 2024, paragraph 39.
In 2020, the husband was notified by Centrelink that he had a debt owing to Centrelink of $32,234. He was told that “[his] debt pause is ending” and recovery was being restarted on 11 May 2021.[12] His evidence was that he had no knowledge of the debt nor what it was for save that he thought there was some reference to an “overpayment of child…[something]”.[13] His evidence was implausible. The husband proposed to the wife a sharing of the debt, but she declined. Her evidence shed no further light on how this debt accrued. This debt at trial was $27,000, the husband having paid some of it down. I find it is a debt belonging solely to the husband.
[12] Transcript 7 June 2024, p.140 line 26.
[13] Transcript 7 June 2024, p.122 line 16
The wife, in October 2021, had approximately $261,000 in a EE Bank account in her sole name. This was over four years since the parties’ separation. Some of these funds were the children’s funds, the wife having transferred such monies to this account to attract a higher interest rate. Otherwise, the funds were the property of the wife as obtained by income post‑separation and/or by an advance of funds from a third-party lending same to her which ultimately required to be repaid.
Conclusion as to contributions
I am satisfied that there should be a contribution adjustment for her post separation contributions in favour of the wife of 2 per cent.
This results in a contribution total adjustment of 3.5 per cent to the wife.
Relevant s 90SF(3) of the Act matters
The parties are of similar age. Neither has re-partnered. The wife has some dental issues, and has commenced dental work in Country J at a cost of $30,000, with anticipated further costs of $30,000.[14]
[14] Wife’s written closing submissions filed 4 September 2024, paragraph 76.
The wife is the primary carer of the parties’ three children, though I note that X will turn 18 years of age in 2025. The husband pays the wife $1,454 each month by way of child support. The wife expends considerable funds on the children’s necessary and other needs. Those needs do not include regular travel to Country J, as asserted by the wife, as the maternal grandfather will be living in Australia with the wife and children.
The husband will be required to repay the $27,000 remaining owing to Centrelink. The wife will be required to pay her various business-related debts which greatly exceed this sum as payable by the husband.
The wife submitted that Z requires dental work to fix trauma to his front three teeth, with estimated costs of $60,000.[15] The wife provided no probative evidence to support that assertion.
[15] Wife’s written closing submissions filed 4 September 2024, paragraph 77.
The wife continues to reside in the Suburb C property and will be responsible for meeting all mortgage and other costs associated with the property. The wife alleged that the house is ‘unliveable’ and will require a lot of work to be carried out to fix it. She has obtained quotes for such repair work in the sum of “$115,000”.[16] I accept that some maintenance work will be imminently needed to the Suburb C property though in what quantum, on the evidence, I cannot make a finding. The wife will bear this cost burden. The husband will continue to make rental payments.
[16] Wife’s written closing submissions filed 4 September 2024, paragraph 75.
The husband works full-time and receives $110,000 gross per annum. The wife also works full-time and receives approximately $115,000 gross per annum.
Conclusion as to s 90SF(3) matters
I have determined that there should be a further adjustment in the wife’s favour of 6.5 per cent in respect of the above matters.
CONCLUSION
The property of the parties available for division between them as determined by the Court is a division of 60 per cent to the wife and 40 per cent to the husband. The husband has already $55,000 in the retention of his tools and timber.
The net value of the parties’ assets is $907,646. Sixty per cent of that sum is $544,587.60, and 40 per cent of the net value is $363,058.40. That is a differential of $181,529.20. In my view, that is an appropriate adjustment having regard in particular to the wife’s need to continue to provide greater financial support to the children than the husband, and in consideration of the wife’s incurring debt on behalf of the parties in relation to the agreement as to travel and residence in Europe. The husband has retained assets to the value of $55,000. Thus, the payment to the husband remaining is the sum of $308,058.40.
In the exercise of my discretion, I consider such overall adjustment to be appropriate, just and equitable as between the parties.
I certify that the preceding one hundred and fifty-one (151) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 20 February 2025
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