Hobbs & Rickman

Case [2025] FedCFamC1F 96

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…

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AGLC
Hobbs & Rickman [2025] FedCFamC1F 96
Case
[2025] FedCFamC1F 96
Decision Date

CaseChat Overview and Summary

The case of Hobbs & Rickman involved a dispute over the division of property between the parties following their separation. The husband, Mr Hobbs, and the wife, Ms Rickman, sought adjustments to their property interests pursuant to section 90SM of the Family Law Act 1975 (Cth). The central legal issue was determining the appropriate division of the modest property pool, considering various factors such as the date of separation, the role of the primary caregiver, and the existence of outstanding debts. The Court was also tasked with deciding whether certain alleged assets and expenses should be included in the property pool.

The Court found that the parties separated in mid-2017, based on the wife's more credible evidence, and thus rejected the husband's claim that the separation occurred in March 2020. It was determined that neither party's failure to fully disclose financial information significantly impacted the outcome. The Court also dismissed the husband's claims of financial wastage by the wife, finding no credible evidence to support these allegations.

The Court concluded that a 60/40 percentage division of the net non-superannuation assets in the wife's favour was just and equitable. This decision took into account the wife's role as the primary caregiver for their three children and her financial support contributions. The husband retained his superannuation entitlements, and the parties' respective personal debts remained with each party. The Court ordered that Ms Rickman pay Mr Hobbs $308,058.40 to effect the property division, with specific provisions for the transfer of the Suburb C property and the handling of any default in payment. The Court also outlined the retention of personal assets by each party, indemnity obligations, and the execution of necessary documents to effect the orders.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.