Janghu & Goyat
[2023] FedCFamC2F 850
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Janghu & Goyat [2023] FedCFamC2F 850
File number(s): PAC 4182 of 2019 Judgment of: JUDGE STREET Date of judgment: 12 July 2023 Catchwords: FAMILY LAW - PROPERTY – Net pool $982,000 – adjustment of 53% /47% - no super splitting – no costs order Legislation: Family Law Act1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Cases cited: Babett & Falconer (2015) FLC 98-067
Black & Kellner [1992] FamCA 2
C & C (2005) FLC 93-220
Dickons & Dickons [2012] FamCAFC 154
Dovgan & Dovgan [2021] FamCA 306
Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143
Jabour & Jabour [2019] FamCAFC 78
Kildea v Kildea (2007) 38 Fam LR 347
Manolis v Manolis (No 2) [2011] FamCAFC 105
Paviello & Paviello [2022] FedFamC1F 592
Penfold v Penfold [1980] HCA 4
Perrin & Perrin (No 2) [2018] FamCAFC 122
Robb & Robb (1995) FLC 92-555
Stanford v Stanford (2012) 247 CLR 108
Weir & Weir [1992] FamCA 69
Division: Division 2 Family Law Number of paragraphs: 145 Date of hearing: 2 March, 3 March, 3 July and 4 July 2023 Place: Sydney Counsel for the Applicant: Mr B Rosic Solicitor for the Applicant: Hills Family Law Centre Solicitor for the Respondent: Foulsham & Geddes
Table of Corrections 30 August 2023 In para 1, correction of children’s name and DOB In para 2, added an ‘s’ to the end of order in fourth sentence In para 18, removed the word vehicle in end of first sentence In para 20, removed the words “and work would be undertaken - ” In para 21, removed “related to –“ In para 22, corrected date 1 May 2022 to 1 May 2020 and added 2020 to end of other dates In para 27, removed a 0 from $1500 so that it now reads $150 In para 28, removed the words “alleged – of” from the last line In para 48, changed the word choirs to chores In para 57, added the word ‘respondent” before accepted in first line. Changed references to applicant to respondent. Removed the incomplete sentence “the respondent explained” midway through the paragraph. In para 58, replaced reference to applicant to the word respondent In para 59, changed the word applicant to respondent In para 66, removed the phrase “when he sells it - ” and removed the last sentence “when and that is all that you need to relodge the development application” In para 67, removed the words “for Mr –“ In para 69, added a $ before 1.4 million and 336,000 In para 77, removed the words “ – of being allocated a base amount”. Corrected the figures of $1.350 and $1.393 to now read correct million amount. In para 90, added “to” before the word agency in third line down and added $ before 13,000. ORDERS
PAC 4182 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR JANGHU
Applicant
AND: MS GOYAT
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
4 JULY 2023
THE COURT ORDERS THAT:
1.These Orders and Declarations are made by way of alternation of property interest pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act’).
B Street, Suburb C NSW
2.That within forty-two (42) days of the date of this order the parties shall do all acts and things and sign all documents necessary to transfer to the respondent wife the whole of the applicant’s interest in the property situated at B Street, Suburb C and more particularly described in Certificate of Title Folio Identifier Lot … DP … (hereinafter, the “Suburb C property”).
3.That contemporaneous with the transfer of the Suburb C property in order 2 above;
(a)The respondent wife shall discharge the first mortgage registered in favour of ANZ Banking Group Ltd, being registered as dealing no. … and the respondent wife shall refinance that mortgage with a mortgage in her sole name.
(b)The respondent wife shall pay the applicant husband the sum of $461,540.00.
4.In the event that the respondent wife fails to pay the husband the said sum of $461,540.00 within forty-two (42) days of the date of these orders (hereinafter “the Specified Date”), the Suburb C property is to be sold and by way of further consequential Orders:
(a)Within seven (7) days of the specified date, the applicant husband shall nominate to the respondent wife in writing, a list of three (3) suitably qualified real estate agents to sell the Suburb C property and within a further seven (7) days, the respondent wife shall nominate one real estate agent from that list an notify the applicant husband in writing.
(b)That in default of the nomination of a real estate agent by the respondent wife pursuant to 4(a) above, the applicant husband shall select one agent form the list that he provided to the respondent wife and notify her of his choice in writing.
(c)That within seven (7) days of the specified date, the applicant husband shall nominate to the respondent wife in writing, a list of three (3) suitably qualified solicitors/conveyancers to act on the sale of the Suburb C property and within a further seven (7) days, the respondent wife shall nominate one conveyancer from that list and notify the applicant husband in writing.
(d)That in default of the nomination of solicitor/conveyancer by the respondent wife pursuant to paragraph 4(c), the applicant husband shall select one solicitor/conveyancer from the list that he provided to the respondent wife and notify her of his choice in writing.
(e)That the respondent wife is responsible for all mortgage repayments for principal and interest incurred in relation to the Suburb C property accrued after the date of these orders until settlement of the sale of the property to be brought to account, if outstanding at the date of settlement, by being deducted from the respondent wife’s share of the net proceeds to the benefit of the applicant.
(f)The Suburb C property is to be sold within a further forty-two (42) days after the specified date by private treaty at a price to be agreed upon between the parties and failing such agreement, to be determined by the proper officer of the Real Estate Institute of NSW or their nominee and the parties take all steps and sign all documents to effect the sale.
(g)That in the event that the Suburb C property fails to be sold by private treaty in accordance with this order, then both parties shall take all necessary steps and execute all necessary documents to cause the property to be sold by public auction within a further forty-two (42) days after the expiration of the time period for sale by private treaty specified in paragraph 4(f) above at a reserve price to be agreed between the parties and failing such agreement to be determined by the proper officer of the Real Estate Institute of NSW or their nominee and the parties take all steps and sign all documents to effect the sale.
(h)The contract for sale of the Suburb C property shall provide for completion within forty-two (42) days after the date of the contract or such other time for completion as agreed between the parties in writing.
5.Following the sale of the Suburb C property, the settlement proceeds of that sale are to be paid in the following manner and priority:
(a)To discharge ANZ mortgage … registered in the Suburb C property, by discharging of the residual balance of the Australia and New Zealand Bank mortgage account …01 and the bank’s related fees and charges.
(b)Payment of the Agent’s commission and advertising or other expenses, if any, payable on the sale.
(c)Payment of the legal costs and outlays relating to the sale.
(d)The balance of the proceeds of sale to be divided between the parties as follows:
(i)47% to the Applicant; and
(ii)The balance of 53% to the Respondent, less any unpaid mortgage principle and interest repayments from the date of these orders to be brought to account in accordance with order 4(e) above.
6.That as between the Husband and Wife, and save and except as set out in these Orders, the parties shall each respectively retain all interests in and entitlement to:
(a)All real and personal property now in his/her respective possession or control;
(b)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively;
(c)All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.
Miscellaneous
7.That the parties shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed.
8.That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
9.The Court declines to make a costs order under s 177 of the Act.
10.The Court reserves its written reasons.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Janghu & Goyat has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 30 August 2023.
JUDGE STREET
INTRODUCTION
These proceedings were commenced on 28 August 2019, for both property and parenting matters. The parties were divorced in 2020. It was not until 1 July 2022 that the Court made final parenting orders in relation to the two children, X, born in 2005 now being 18 and, Y born in 2007 now being 15. Those orders identify that the children could live with each parent in accordance with their wishes. The two children on the evidence before the Court are living with the respondent wife since the making of those parenting orders.
The property proceedings were heard over four days being 2 March, 3 March, 3 July and 4 July 2023. At the conclusion of the hearing on 4 March 2023 the Court pronounced final orders and reserved its written reasons. The Court took that course in circumstances where the proceedings had been commenced in 2019 and where it was apparent that it was in the interests of the parties to bring the property dispute between them to an immediate end. The Court took into account in pronouncing order and reserving written reasons, the principles in section 43 of the Family Law Act1975 (Cth) and section 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), as well as the duty in respect of finality in section 81 and the avoiding of further proceedings. The Court was satisfied that it was in the interests of the administration of justice and in the best interest of the remaining child to pronounce the orders and declarations and reserve its written reasons in the circumstances of this case.
CHRONOLOGY
The Court finds the relevant dates and events are in the following Chronology:
Date Event 1972 Respondent wife born 1973 Applicant husband born 1995 Applicant husband came to Australia as a student 2002 Parties marry in Country D 2002 After marriage $2,200 transferred from respondent’s account to the applicant 2003 Applicant husband granted permanent residency 2003 Respondent wife arrived in Australia on a student visa 2003 Parties commenced co-habitation in Australia at applicant husbands rental property at E Street, Suburb F 2005 Party’s begin receiving Centrelink support 2005 The parties first child, X is born 2007 Applicant husband purchased property where Suburb C house was subsequently built with land loan from ANZ 2007 The party’s second child, Y is born. December 2008-2009 Applicant takes funds from respondent into his account April 2009 Applicant husband’s parents gifted the parties $5,450 June 2009 Applicant husband’s parents gifted the parties $1,900 December 2009 Construction loan obtained Parties begin the construction of the Suburb C property. Mid-2010 Parties move into the Suburb C property once construction was complete. June 2010 Construction loan now over $300,000 October 2011 Applicant husband’s parents gifted the parties $13,920 2013 Respondent wife completed her post tertiary qualifications March 2015 Applicant husband’s parents gift the parties $12,864 April 2015 Applicant husband approved for refinancing home loan for purchasing a motor vehicle 2015 Applicant husband purchases Motor Vehicle 1 September 2016 Construction loan for Suburb C property is cleared May 2017 Applicant husband purchases Motor Vehicle 2 Mid-2017 First withdrawal of $10,000 by applicant husband for acquisition of a business (“the business”) Mid-2017 Second withdrawal of $10,000 by applicant husband for acquisition of the business Mid-2017 Third withdrawal of $10,000 by applicant husband for acquisition of the business Late 2017 The business fails. Applicant husband begins to receive cash payments on sale of his share of the business from business partner. The applicant husband receives $28,000 over five-six months. Early 2018 Applicant husband applies funds received from sale of business towards acquisition of shares March 2018 Parties separate on a final basis March 2018 Applicant husband commences withdrawing funds from ANZ accounts ending #...61 and #...39 and depositing those funds into Westpac account ending #...06 March 2018 Applicant husband commences transferring weekly sums from his Westpac account ending #...06 to his ANZ account ending #...61 with false payment reference G Company Salary June 2018 Applicant husband based on false G Company salary draws down further $150,210.56 on home loan 2018 Applicant husband travels to Country H to visit his parents 2018 Applicant husband returns from Country H trip 12 April 2019 Applicant husband moves out of former matrimonial home and commences living in shared housing accommodation. 28 August 2019 Applicant husband commences parenting and property proceedings 31 October 2019 First Return Date and consent orders for both parenting and property 20 February 2020 Directions hearing and orders made 21 April 2020 Directions hearing and orders made 20 May 2020 Directions hearing and orders made Mid-2020 Applicant starts looking for work 16 June 2020 Directions hearing and orders made 28 July 2020 First Child Inclusive Conference 6 August 2020 Directions hearing and orders made 7 August 2020 Applicant husband commences divorce proceedings 16 August 2020 Respondent wife files response documents 20 August 2020 Conciliation Conference and orders made 3 September 2020 Directions hearing and orders made 16 October 2020 Second Child Inclusive Conference Late 2020 Divorce order made by Registrar 14 December 2020 Directions Hearing and order January 2021 Applicant husband establishes ‘J Pty Ltd’ with 50% shareholding and of other 50% held by Mr K 12 March 2021 Third Child Inclusive Conference 1 April 2021 Interim Hearing Date/ Orders made and respondent wife’s application opposed to Divorce order dismissed 26 April 2021 Undefended hearing and orders made 3 June 2021 Directions hearing and orders made 11 August 2021 Callover hearing and orders made 25 August 2021 Interim defended hearing and costs order h 6 December 2021 Trial directions and listed for parenting/property hearing 3 days commencing 6 June 2022- respondent unrepresented and 10 February 2022 Applicant husband received letter from Child Support Agency regarding acceptance of respondent’s request to end child support 4 May 2022 Instructions commenced by respondent to new solicitor, who then gets COVID as does his family 26 May 2022 Applicant files trial affidavit not compliant with order 4 made 6 December 2021 for filing 28 days before hearing 1 June 2022 The respondent wife obtains legal representation, files notice of address for service- listed for directions 3 June 2022 3 June 2022 Order made vacating property and parenting trial dates set for 6-8 June 2022 on respondent wife’s application 1 July 2022 Final Parenting Orders by consent that the children live with and spend time with each parent in accordance with their wishes. 20 October 2022 Not reached due to double listing and running of parenting case.
After unsuccessful negotiations, orders made vacating trial dates set for 20-21 October 2022. Trial date accorded priority on 6-7 February 2023.6-7 February 2022 Trial dates vacated due to COVID of the Court. 8 February 2023 Matter is re-listed for final hearing commencing on 2-3 March 2023 2 March 2023 Matter is part heard. 3 March 2023 Matter is part heard. 3 July 2023 Matter is part heard. 4 July 2023 Final Hearing occurs and final orders are made – written reasons reserved. APPLICANT’S EVIDENCE
The applicant identified he was born in Country D in 1973, had come to Australia in 1995, and married the respondent in 2002 in Country D. The respondent arrived in Australia in 2003 as a qualified educator. The applicant’s parents assisted in paying fees for the education of the respondent at L University in order to have recognised her overseas qualifications. The parties commenced living at rental premises in Suburb F in 2003, the rent for which was paid for by the applicant. The applicant identified having his daughter born in 2005 who is now 18 years old and his son, born in 2007 who is now 15 years old. The applicant identified the respondent commenced work as a casual educator in 2016 for the first time in their relationship and contended that the respondent didn’t contribute to the outgoings on the home.
The applicant and the respondent separated in March 2018, albeit remaining under the same roof and on 12 February 2019, the respondent moved out of the former matrimonial home at B Street, Suburb C (the Suburb C property). A divorce order was made in late 2020. The solicitors for the applicants sent a letter on 11 March 2019 in relation to the seeking of the divorce order. On 15 May 2019, the solicitor for the applicant sent a letter in relation to parenting and property matters prior to the commencement of the proceedings on 28 August 2019 seeking both parenting and property orders and also procedural orders.
The applicant referred to the procedural history in the proceedings. On 1 July 2022, final parenting orders were made in chambers by consent for the children to live and spend time with each parent in accordance with their wishes. On 3 June 2022, the matter was refixed, at least the hearing dates in June 2022 were vacated and the matter was fixed for a final hearing on 20 and 21 October for both parenting and property. The application for adjournment in addition to the impact of COVID on the new representative referred to the receipt of a substantial volume of disclosure documents from the applicant on 30 May 2022 and the applicant had only served his substantive affidavit evidence in support of the final orders on 26 May 2022 which was contrary to order 4 made on 6 December 2021 which required the applicant’s affidavit to be filed 28 days prior to the final hearing date.
There had also at that time been no valuation evidence provided in relation to the applicant’s interest in a company acquired in March 2021 and criticism of disclosure of the investment property acquired by that company. The submissions in support of the adjournment also addressed issues concerning the parenting aspects and the best interests of the children. The June parenting and property hearing date adjournment cannot be said to be due to the conduct of the respondent.
In October 2022, the matter was double listed and the Court was unable to proceed with the hearing due to a parenting matter proceeding in priority to this case. On 20 October 2022, the court vacated the final property hearing date for 20 and 21 October 2022 after unsuccessful negotiations at 2:00pm given the other parenting matter was proceeding, and refixed the matter for a final property hearing on 6 and 7 February 2023. Both parties had served material in support of the hearing date on 20 October 2022.
The applicant asserted an impact upon him due to the proceedings and provided a report in relation to his anxiety and depression from a psychologist said to relate to ongoing divorce process and being worried about financial implications while continuing this process, the report being dated 31 March 2021.
The applicant provided a timetable seeking to characterise what had occurred in the proceedings that had caused him distress and hardship. The applicant did not explain his non‑compliance with the December 2021 trial orders for the June 2022 hearing. The applicant identified the assets of the parties and identified that, at the time of their marriage, neither party had any assets of significance. The applicant referred to the respondent being gifted jewellery when they were married. The applicant identified becoming a permanent resident and working full-time as a transport worker from mid-2003. The applicant identified, in addition to his transport worker income, from 2005, he began to receive Centrelink support, including rent assistance and family tax benefits of $700 per week and that they were, at that time, receiving an income of approximately $1000 a week, and that these were all applied to family expenses until the respondent commenced working as an educator.
The applicant referred to sending money back to Country D to the applicant’s mother which was returned in about 2008 or 2009. The parties bought the vacant land for the Suburb C property in 2007 in the name of the applicant for a purchase price of over $260,000. The applicant had saved a deposit of $62,000 from his transport worker employment and cash gifts from his family, that were brought from Country D. The applicant identified the obtaining of an ANZ residential land loan of $201,105.35. The applicant identified the loan had been reduced by 2009 to $121,901.55 through his work and the support of his parents. The applicant identified obtaining a construction loan in December 2009 in the amount of $121,554.68 to pay out the residential land loan. The construction commenced in late 2009 and by mid-2010 the construction loan debt was $301,670.32.
The applicant identified the loans were obtained in his name as the total was in his name and the respondent was not working at the time of application. The parties moved into the Suburb C property in mid-2010. The applicant undertook landscaping for the property as well as engaging contractors, in respect of which it was said the expenses were met from his income and gifts from his parents. Until the applicant left the property he had been responsible for the maintenance of the house, mowing lawns and grocery shopping. The applicant also contributed towards the cooking and housework, but acknowledged that the respondent did most of the home making. The applicant identified the respondent as having cared for the children full time until she commenced work.
The applicant referred to a discussion about putting the Suburb C into their joint names and the respondent not wanting to sign the mortgage. The applicant referred to the respondent as having obtained a taxable income for the year ended 2015 of around $15,000, having completed her Australian education qualifications in 2013. The applicant continued to pay for the family expenses except telephone bills and some of the children’s expenses, to which the respondent began contributing after she commenced working. The respondent identified investing in a share portfolio between 2 January 2018 until 19 February 2018, which by 16 January 2023 had decreased to almost a third of the investment of $27,500.
The applicant identified that post separation under one roof the respondent paid for her own food, clothing and petrol expenses but they shared the children’s expenses. At least the applicant identified going to Country H to visit his parents for a few months in 2018 due in part to having suffered a chronic injury and a downturn in work in the transport industry. The applicant identified engaging in a trade in late 2018 and then working as a labourer from late 2018 until early 2019. The applicant identified looking for work after he left the matrimonial home in April 2019 and obtaining casual transport work, but mostly being out of work.
The applicant identified at the time of separation in March the homeowner balance was $262,000 and that on 25 June 2018 he withdrew $150,210.56 from the home loan account and that the funds were applied towards the expenses of the Suburb C property and that the applicant also relied on the funds withdrawn to meet his everyday expenses. The applicant identified after leaving the Suburb C property he rented rooms in various houses to try and be close to the children.
The applicant identified he started to look for employment again in mid-2020 as a result of the impact of COVID and that he commenced a trade course in 2020, which he completed in mid‑2021 and received financial support from Centrelink to complete that course. In January 2021 the applicant obtained employment as a tradesman and earnt about $650 a week, which employment ceased in early 2021. The applicant was in receipt of Centrelink payments from April 2020 until October 2021. The applicant then started working as a transport worker in around late 2021 and continued to work as a transport worker to date.
The applicant identified receiving gifts from his parents over the course of the marriage totalling $44,153. The applicant identified acquiring a 50 per cent shareholding in a company called J Pty Ltd established in early 2021 due to the generosity of his friend and business partner, Mr K. The applicant identified a personal loan agreement requiring repayment of $92,600 by 6 December 2022. Annexed to the applicant’s affidavit was a loan agreement dated 11 November 2021 signed by Mr K as the lender and the applicant as the borrower. The affidavit identified the company owning two lots of land being lots 1 and 2 and that each was purchased for amount of $230,000 with a borrowing of $184,000 on each lot from NAB. The affidavit identified an intention to improve the lots and the intention to build on the respective lots. The applicant identified that Mr K was not prepared to proceed with the building contract until the applicant’s family law property matter is resolved and that he had money he had to repay.
The applicant identified refinancing on the home loan for the purpose of purchasing a vehicle in April 2015 and transferring $50,000 towards the acquisition of Motor Vehicle 1 in June 2015 which vehicle was also purchased with funds received from the applicant’s mother in March 2015. The applicant explained the transfer of funds on 2 September 2016 of $208,614.85 from the construction account and then transferring $258,088.63 to the new home loan account with the intention of acquiring an investment property and increasing the home loan account to $466,703.48. On 30 June 2017, the applicant transferred back $200,000 into the home loan account which had the effect of decreasing the home loan to $266,728.88.
The applicant identified having a car accident in 2017 in which he wrote off his private vehicle and the respondent assisting the applicant purchased a new vehicle by transferring the sum of $9000 in mid-2017. The applicant identified transferring other funds in mid-2017, the sum of $24,000 to acquire Motor Vehicle 2 for family use. The applicant identified, between June and August 2017, withdrawing $30,000 to acquire a one third interest in a start-up retail business. The cost blew out to around $60,000 each for the respective partners and the joint venture failed. The applicant received approximately $28,000 cash payments from the business partner over five to six months and he applied the funds towards the acquisition of company shares referred to the company shares.
The applicant sent a text in support of the separation on 20 March 2018, identifying the relationship as beyond repair, and identifying that he would take care of the mortgage, council rates, home insurance and other expenses, and identifying what home duties should be undertaken by the respondent. The applicant received a response in agreement. The respondent’s message referred to giving the applicant Centrelink money and disagreeing about the application of funds, and taking issue in relation to the payment of bills. The applicant alleged that the respondent did not assist with mortgage, rates, water or other outgoings, causing financial stress.
The applicant referred to making transfers described as Local Enterprise Salary G Company on 21 March 2018. Those transfers did not reflect an actual salary but those transfers purported to reflect the salary that gave rise to a refinancing of the home loan on 25 June 2018 that permitted the applicant to withdraw $150,210.56. The applicant identified expending approximately $50,054.37 for mortgage payments from 25 June 2018 to December 2020. The applicant identified $6108.92 being spent on utilities for his personal phone, paying insurance premiums of $10,534.51, paying part of his rent from 8 April 2019 to 27 December 2020 in the amount of $20,128.10, paying council rates from 5 August 2018 till 5 December 2022 of $15,047.44, paying for taxation services from 15 October 2018 to 9 January 2023 of $7,087, paying personal expenses, including a certificate of $2,540, paying for health cover in the sum of $339.35, servicing vehicle and use charges from 25 June 2018 to 13 June 2020 of $6,931.02, repaying Centrelink a sum of $1,476.84, paying legal costs from 7 March 2019 to 14 December of $19,354.50, paying for storage from 11 December 2019 to 8 September 2021 of $1,759.50, paying children’s expenses between 12 February 2019 and 15 January 2023 of $8,000.97, and that the total of $149,360.42 did not include further expenses for himself and the children.
The applicant identified an increase in the loan repayments due to the refinancing in June 2018 for the amount of $455.86, and referred to making loan repayments of $10,028.92 up to 30 November 2018. The applicant identified an increase in weekly payments to $462.17 for making 65 payments of that amount up until 9 March 2020. The applicant identified a reduction in the weekly repayments from 16 March 2020 and making a further eight payments up to 1 May 2020, and following 1 May 2020, receiving COVID relief support, and then he resumed making payments at a new rate of $404.44 over eight weeks from 14 September until 2 November 2020, and then the weekly repayments increased to $414.67, with his last payment being made on 30 December 2020.
The applicant identified that the respondent assumed responsibility for the mortgage for the matrimonial home and that he ceased transferring mortgage payments at that time.
The applicant identified his legal expenses that he paid of $19,354.50 and referred to borrowing funds for such as seeing his sister and his father.
The applicant referred to an accumulation of a term deposit by the respondent of $51,105.90 by 8 October 2018 and contended that the respondent had not disclosed what happened to that money. The applicant referred to the respondent having two bank accounts in Country D and annexing recent statements for each account. The respondent referred to the applicant having an interest in the property valued at $36,773. The applicant also alleged the respondent had shares in Country D and annexed statements relating to those overseas-based share interests.
The applicant identified his future needs being 50 years old and having worked as a transport worker since around late 2021 and earning $890 per week from that work. The applicant identified he did not intend to utilise his trade qualifications obtained. The applicant identified having an injury that may require surgery and provided an ultrasound report dated 7 November 2018 identifying his injuries. The applicant also provided a medical certificate dated 29 March 2022, stating that he was unable to work over a long time because he was suffering severe pain.
The applicant identified that he has been renting a two-bedroom apartment in Suburb N for which he pays $500 per week and he spends approximately $200 per week on food and groceries and spends around $150 when he spends time with the children on food and entertainment and that he spends about $50 a week in travelling expenses, including fuel and parking. The applicant was critical of the state of the Suburb C property. The applicant referred to his two children with his daughter now being 18 and having obtained employment and that his 15 year old son is attending O School and that the children have continued to live in the former matrimonial home with the mother and that they spend time with him as they see fit.
The applicant referred to providing funds to his daughter and trying to meet their needs when with him and that he does not pay any child support. The applicant identified applying for a child support assessment in early 2022 and on 10 February 2022, receiving a letter from the child support advising that they had accepted the respondent’s application to end the assessment for the two children. The applicant said he continues to contribute directly to the children for education and entertainment and provided a table of contributions in that regard from 12 February 2019 up to 15 January 2023 totalling $8,097.
In cross-examination the applicant identified, first, that he had six or seven bank accounts and then accepted that he had 10. The applicant also gave evidence in cross-examination in relation to investment in the business which did not reflect accurate evidence in relation to the acquisition of the gold which was, in part, used for the purchase of the investment, identifying that he got it from his parents and that it was not bought with the respondent.
The applicant also gave evidence, contrary to paragraph 95 of his affidavit that he did not tell the respondent about transactions in circumstances where he had alleged that she was at all times aware of these transactions. The applicant also accepted that paragraph 102 of his affidavit was not entirely correct. The applicant identified making the weekly payments in relation to the reference G Company false salary to get the loan from the bank, which was the $150,000 drawdown.
The applicant gave evidence that the alleged value of the property interest of the applicant in Country D was $36,773. In relation to the respondent’s shares in the Country D companies the applicant identified that he caused the share accounts to be opened in the respondent’s name and agreed that the respondent did not have the email address that was used in relation to the opening of the accounts. The respondent explained that half the shares were from his mother’s account and that half the shares were bought by her brother.
The applicant agreed that the shares were transferred from other accounts and were both purchased and transferred. The applicant could not identify which shares were transferred from his mother’s account. The applicant was cross-examined about the failure to produce the records in relation to the transfers from his mother’s account. The applicant then gave evidence that all the shares in the name of the respondent were shares transferred from his mother’s account. The applicant gave evidence that he only found out recently in relation to the transfer from his mother’s account. The respondent disputed having control over the share accounts, who referred to the dividends going into the respondent’s bank accounts.
The applicant provided an explanation for the transfer into the respondent’s account that it was not in evidence because he didn’t think it was important. The applicant then gave a different explanation that he couldn’t open an account and that’s why it was transferred into the respondent’s name. The applicant also gave evidence that the half shares were transferred to “our name” and could not explain the use of “our name” when asked by the court. The applicant then offered an explanation that he the respondent were one entity.
The applicant agreed that he participated in the transfer of the shares into the account in the name of the respondent. The applicant gave different evidence in relation to the repayment of money in respect of the business. The applicant accepted he was given $28,000 cash to conclude his involvement in the venture and then referred to receiving $3000 - $5000 because he needed money. The applicant accepted that he didn’t tell the respondent about settling the involvement in the business in the sum of $28,000. The applicant identified he was living on his own in the rented apartment, earning after tax about $850 a week from transport work.
The applicant agreed he had worked for three different companies since 2021. The applicant identified if he worked full time, his income should average $1,200 a week or more than $1,000. The applicant disputed that his injury had no bearing on his income potential. The applicant was cross-examined about the ANZ bank records produced in relation to the respondent’s term deposit in the sum of $51,844. The applicant explained that he told the ANZ the $150,000 was for renovation of the property. The applicant agreed he did not use the funds to renovate the property.
The applicant was taken to his financial statement and his obligation of disclosure in relation to his bank accounts and was taken to material that identified there are accounts not disclosed. The applicant was asked questions about J Pty Ltd and the non-disclosure of the exchange of contracts on the two properties. The applicant was taken to the financial statement and the non-disclosure of a sale of shares. The applicant was also taken to the content of his first financial statement that did not include the business, explaining that he did not think it was of significance.
The applicant was taken to the acquisition of two lots by J Pty Ltd and then agreed that there had actually been an exchange of contracts on four lots. The applicant said he did not disclose the existence of the other two lots the subject of exchange because he could not remember the date. The applicant sought to explain that he was not sure if the two lots would go ahead or not. The applicant was taken to the valuation of the company that refers to two lots and the absence of disclosure to the valuer of the other two lots.
The applicant agreed he did not disclose the two transactions to the accountant engaged in valuing the assets of the company. The applicant was asked about a letter having a heading P Company in relation to him proposing to get a loan, purporting to identify his employment as a professional when he never worked for such a company or received any salary from such a company.
The applicant agreed that it helped J Pty Ltd’s application for a loan that he said that the respondent was paying the home loan. The applicant accepted that the $150,000 drawdown meant that there is extra interest that was payable, and that meant that since January 2021 the respondent has been paying to mortgage payments it since January 2021. The applicant referred to paragraph 66 of his affidavit where he said he started working as a transport worker in late 2021 and said it was partially true because he was using Q Company, working as a transport worker as well.
The applicant agreed that his affidavit said $150,000 was expended between June 2018 and December 2020. It was put to the applicant that he chose to start working more in late 2021. The applicant was asked why he did not start working for Q Company in 2017 or from 2018 and said he was doing transport work and had an injury and was trying to explore other options in life. The applicant accepted he went to visit his parents in Country H in 2018. The applicant’s explanation for not explaining the impact of his injury on his income was challenged given that he knew it was important to have medical evidence about his injury. The applicant denied that he realised it was an important question as to whether his injury impacted on his income. The applicant identified that he was using Motor Vehicle 2 that he said he bought for his daughter. The applicant accepted that the cash deposits of $9,000, reflecting alleged employment payments concerning G Company had come from the $150,000 that was drawn down.
The applicant agreed the business ran for about three months. The applicant was challenged as to his evidence that his injury had a bearing on his ability to generate income.
The applicant gave evidence as to having produced his 30 June 2018 tax return and accepted that he had not, in fact, included that tax return in his disclosure, and no document was produced in answer to a call for the same.
The applicant was also cross-examined about the failure to disclose the exchange of contracts for lots 1 and 2.
RESPONDENT’S EVIDENCE
The respondent identified that she is employed and is currently earning $89,000 plus superannuation. The applicant accepted that she had no significant assets at the commencement of their relationship. The applicant deposed to having been the primary carer for the two children and having a close relationship with her son and daughter. The applicant identified paying for the children’s extracurricular activities, including sports, hobbies and religious school. The applicant identified that her siblings repaid the funds lent to help her complete her education at L University in 2003. The respondent identified allowing the applicant access to her personal account, and the respondent transferring funds from her account into his own account, and that these were funds from her mother. The respondent identified not having access to the applicant’s bank accounts and never opening a joint account.
The respondent identified receiving gifts of about $20,000 from the wedding and that the applicant transferred the funds he accumulated in his account, including $2,200. The respondent identified the $50,000 was provided by her mother towards the purchase of the Suburb C property and that the applicant provide $40,000 and that they received a $25,000 grant from the New South Wales government under the First Homebuyer scheme, but that the property was put into the applicant’s sole name and was funded by a mortgage with ANZ.
The respondent took issue with assertions by the applicant and contended that it was the applicant that kept delaying the process. The respondent identified having $2,200 in her own account at the time of marriage. The respondent identified applying through Centrelink for family payments towards family expenses and that the applicant transferred those amounts to his account to use as he wished. The respondent identified from 2005 until 2022 applying all the parenting payments received towards the family expenses and that the applicant was transferring money into his account. In 2011 the respondent refers to a conversation that the applicant would sell the house unless money was transferred into her account.
The respondent identified she was solely responsible for doing all the housework, cleaning cooking, washing dishes, washing clothes and looking after the children. The respondent said she kept paying for groceries and children expenses and bills. The funds received in the amount of $5,000 on the birth of the children were deposited into the applicant’s accounts. The respondent alleged she had been the subject of controlling and coercive behaviour. The respondent then said that she did not agree to or have knowledge of the investment in the business. The respondent alleged contribution to the purchase of Motor Vehicle 2. The respondent began working full time in 2017 and earned approximately $40-50,000 gross per annum plus super. The respondent said during the relationship the entirety of her income was applied towards household needs, including groceries, mortgage repayments, repairs, bills, children’s extra activities, toys, clothing and school supplies and other effects, and that the respondent was seldom left with any income for personal expenses.
The respondent said that since 2018 she has been responsible for electricity bill, phone bills and also paid the children expenses as well as referring to mortgage repayments. The respondent also referred to carrying out repairs on the property, identifying receipts from tradesmen. The respondent gave detailed evidence in relation to her domestic duties and being responsible for all general upkeep, chores, domestic duties around the house, including preparing and cooking the dinner, washing up, laundry, getting the children ready for school, packing lunches, general cleaning of the house, including vacuuming, mopping and cleaning the bathrooms and windows, changing bedsheets, maintaining the kitchen and ironing.
The applicant identifies spending four hours per day during the work week and approximately 10 hours on the weekend on those duties and that she spent extra time with the children, helping them with their homework and extracurricular activities. The respondent also said that the applicant demanded that he cook him a meal and cook extra for his lunches and otherwise away meals. The respondent referred to continuing to perform domestic duties when unwell as well as during experiencing an injury.
The respondent identified from 2010 to 2017 both were responsible in the upkeep of the garden and that the applicant then stopped performing gardening duties and that she remained responsible for caring for the children and identified in detail her parental duties and predominant responsibility for the children’s care and upbringing from birth to date.
The respondent maintained that she had contributed her income from the time she commenced working to the household, initially part-time in about 2014 until 2017. The respondent said that the applicant never complained about his shoulder during their marriage and that it had not impacted on his employment. The respondent identified that she did not have any jewellery of value. The respondent maintained that the applicant only contributed $50,000 to the Suburb C property. The respondent said that she was excluded from management or control of their joint finances. The respondent referred to representing herself, doing the best she could whilst working and looking after the children and apologised for being tardy. The respondent denied intentionally delaying the proceedings or intentionally failing to comply with orders and directions of the Court and explained her confusion as to financial disclosure.
The respondent identified being very unwell for a few weeks in mid-2022 and being unable to attend work and identified steps taken to try and comply with the financial disclosure obligations. The applicant explained that she had no recollection of owning property in Country D and did not understand how her name came to be on the title in Country D. The respondent identified that the shares were purchased in her name and that she did not have access to the account or know how to access it in Country D.
The respondent identified she pays all electricity bills, school fees and phone bills for her and the children. In the applicant’s second affidavit, she explained that she only became aware of the one-sixth interest in the Country D property in October 2022, apparently following the death of her father in 2005. The respondent explained she did not receive any income from the property, was unaware of the value of the property and has said that the property is the subject of proceedings in Country D and that her mother is involved in the litigation. An affidavit has been put on by the mother or any document produced in support of that alleged litigation.
The respondent identified being unaware of the institution holding the shares in Country D and not having consented to the opening of the account and referred to a conversation with the applicant about transferring the shares in to a shareholding in her name and that she did not have other money throughout that account. The respondent identified receiving about $10,000 from her mother on 7 September 2022 and telling her mother that she could have those shares and that the account was in the process of being closed. In cross-examination, the respondent was asked about the instructions which had a signature using the name Mr S.
The respondent identified that she held no funds in that account at present and that the funds had been transferred to her mother, who transferred her $10,000. The respondent explained she did not send the letter to the financial institution. The respondent was cross-examined about the absence of disclosure of the interest in the T Bank account and said that she did not have any record.
The respondent was taken to a financial statement that did not identify the T Bank account ending no #...05 or the account ending #...08. The applicant explained that Mr S on the two letters dated 25 March 2022 in exhibit H was her father’s surname. The applicant explained that the account in her name had been closed and that the account number ending #...78 was her mother’s account and did not appear in the financial statement because the amount was taken out. The applicant disputed that she had an interest in property and contended that the land belongs to her mother. The applicant maintained that she did not know that she had the property and that she had not been to Country D in the last 10 years. The applicant was cross‑examined as to the absence of an affidavit by the mother and the absence of any documents to support a dispute as to ownership. The respondent has paid the mortgage since December 2020.
The accepted that she was aware allegedly of having an interest in the property in late 2022. The applicant explained that she was told by her mother the property is disputed. The applicant explained she did not believe she had a right to have the property valued. The respondent explained. The respondent identified working 30 hours a week and earning $1,400 a week. The applicant was asked about the shareholding in Country D in respect of the shares transferred by the applicant into her name and that she had no idea of the company in which the shares were held.
The respondent referred to the applicant informing her that his mother had transferred the shares into her account in her name, but that she had never seen the shares. The respondent said she started working in Australia in 2015 and that by January 2018 her superannuation would have been roughly $19,000-$20,000. The respondent accepted that in her financial statement of 2020 the super had increased to $45,000, which included salary sacrifice. The respondent was asked about her term deposit. The respondent maintained that she had made full and frank disclosure of all bank accounts and identified that she had obtained a potential loan application for purchasing the Suburb C property.
The respondent identified the account numbers relating to the deposit transfers as having been closed. The respondent was cross-examined about the financial statements not referring to the particular bank account …82. The respondent explained that he could not disclose the interest-bearing deposit accounts because they had been closed.
The respondent explained that she had taken out $14,000 in cash to meet expenses and lawyer’s fees and had been giving money to her daughter and son for normal expenses. The respondent accepted that she paid $20,000 to her previous lawyers and was asked about the cash that she pulled out to meet everyday expenses. The applicant was asked about identifying the normal balance in the account in her financial statement. The respondent identified that she poor at writing in relation to her financial statements. The applicant was cross-examined about taking three months to put on the response on 31 October 2019. The respondent was taken to her application to cancel the child support, and she stopped it being collected. The respondent identified that she may be able to obtain a small amount of funds from her sister and her mother.
MR K EVIDENCE
Mr K gave evidence that he was a director and shareholder of a business called U Pty Ltd, and that he has known the applicant for more than 15 years, and he is aware that the applicant is involved in family proceedings and that the applicant is his friend, and that he knows the respondent through his friendship with the applicant.
Mr K identified that he and the applicant are co-owners and directors of a company, J Pty Ltd, which was registered in 2021. Mr K identified that the company owns two lots of land at the time of his affidavit, and at the time he gave evidence, that the company owns two further lots of land. The deponent identified that he paid the deposits for the lots and the purchase price, and identified that the applicant had borrowed money from him over the last two years to finance his part of the costs to establish the company and towards the acquisition of property.
Mr K asserted that in addition to borrowing money from him, the applicant had also borrowed money from him to provide for his own children and everyday needs, and that prior to June 2022, the applicant had borrowed $92,600 on a three per cent interest, and that that amount does not include the payment for the two additional lots in Town V by J Pty Ltd. Mr K identified lending the applicant $20,000 on 1 June 2022 to assist with his legal expenses, and an agreement to pay interest. Mr K said he was happy to provide short-term financial assistance because the applicant is a good, long-time friend, and said that he currently owes Mr K $112,600, which he is required to pay by 6 December 2022. He identified that the applicant is not currently paying any interests on his loans.
The affidavit identified that Mr K and the applicant are co-guarantors of the loans from NAB, and that Mr K is servicing the loans without assistance from the applicant. The deponent identified the delay in the settlement of the applicant’s family law proceedings has prevented progressing their business venture as they had planned. Mr K described the business of property development as starting a side business, and that it involved construction of a residential house.
Mr K identified that two lots will be completed in mid-2023, and it was the intention of the company to build houses on each of the lots. Mr K identified he did not yet what could be built on the most recent two lots, but expected to build a large house on each of the first two lots. Mr K was asked about the build costs and identified that it had gone up from $590,000 to $700,000 each. Mr K agreed that for the first two lots, the build cost and purchase price for each combined was $930,000 each.
Mr K contended the properties might be rented if the price is unfavourable and the outcome depended on the market and that he did not want to sell at a loss and that hopefully he could make some money when it is sold. Mr K agreed that the intention was to make money out of the houses and he was asked about the development application and the lower build cost estimate in that application and the identity of the proposed builder.
Mr K indicated that he had been his own builder for a house and an investment property, so that he had built two houses and that was in 2014. Mr K said that the applicant had not paid any money towards J Pty Ltd and was taken to a bank record indicating a payment for conveyancing services from the applicant’s account. It was put to Mr K during his evidence that the applicant having not paid anything was not true, given the payment to W Conveyancing. Mr K said that the applicant had borrowed money at various times over the last two years, both to finance his cost to establish J Pty Ltd and towards the company’s acquisition of property.
Mr K then gave evidence that the borrowing of $92,600 did not relate to J Pty Ltd. Mr K then gave unresponsive answers to questions as to whether the applicant owes money for J Pty Ltd. Mr K then suggested that the applicant owed him $120,000, taking into account the amounts owed for J Pty Ltd. Mr K then said that he had lent $112,000 plus. Mr K then gave evidence that as at today, the applicant owed him $112,600 plus, when he settled the new lots, I think, $25,000 and more. In response to a question as to whether Mr K still owes him the money as at 6 December 2022, Mr K said he needed to check some paperwork and made the same response in relation to whether he would be paying anything by applicant.
Mr K indicated he did not have a loan account document in relation to how much is owed by the applicant. Mr K then asserted that the applicant owed him more than $130,000. The applicant was then asked how much of the $130,000 relates to a lending as to J Pty Ltd and responded, “Some $81,000.” In answering to a question by the Court as to whether the company has kept a record in relation to landings to the applicant, Mr K identified that he writes all his paperwork. In response to a question of where the $1.4 million is going to come from to proceed with the construction, Mr K identified the bank had approved $336,000 each block and that he would pay from his personal account. Mr K indicated that he will have almost $700,000 or $800,000 of his own funds he has to pay and acknowledged that he did not have that level of funds in a bank account.
In answer to a question from the Court as to whether the applicant owes the company any money, Mr K then asserted that there is not money owing yet. Mr K then said that the applicant does not owe money to J Pty Ltd. In relation to what would happen to the profits, Mr K said it will depend. Mr K said that if the applicant pays 50 per cent, he can make a profit. Mr K asserted that he could fund it from money sitting in his account and money from monthly invoices. Mr K indicated that if the applicant gave him money, they can share in the profit.
VALUATION EVIDENCE OF COUNTRY D PROPERTY INTEREST BY MR Z
The deponent identified that he is a government approved valuer and that he prepared a valuation report and that he had been an associate of the Institute of Valuers in Country D with a registration number and provided a report, in respect of which he relevantly in paragraph 9 of the Affidavit he said:
I have read and understand Division 7.14, 7.15 and 7.16 of the Federal Circuit and Family Court of Australia Family Rules and I use my best endeavour’s to comply with it.
The first affidavit annexed a report that identified a pro forma for valuation report in respect of land/site and building for fair market value dated 28 March 2022 and referred to multiple approximate interests and identified a prevailing market rate, which has been referred to as a different amount, and then identified an assessed adopted rate and gave an estimated land value.
There is also annexed to the schedule a land rate in the second affidavit. The deponent identified the valuation of the land and identified the owner interests, identifying six owners, of which the respondent was identified as having a share together with the five other co-owners.
In cross-examination the valuer identified obtaining post-tertiary qualifications in 2000 when he had been a member of the Institute of Valuers since 2006. The valuer did not identify how he received instructions for the property valuation beyond a telephone call from a Country D lady. The valuer said he did not know the total value of the property and that he had only put a value on the respondent’s share. The valuer identified that he was only assigned to do a valuation for the property related to the respondent, being her share, and that he didn’t work out the value of the whole of the property.
The valuer identified that the land is undivided up land and that the respondent’s share is undivided and there is no demarcation because the property is deemed not demarcated and that he had taken the government lease collector rate which he had adopted, and that these were lease rates that he had adopted and that this was the figure used for government rates. The valuer suggested that negotiating a price would be not less than the collector rate.
The valuer accepted that his report did not explain the per acre figure in arriving at the market value. The valuer identified that he asked locals and spoke to one or two people in the area, and that they were not property owners. They were just local people with no qualifications. The valuer also indicated he did not know how many people were entitled and that he was not able to do search work to identify who the people bought the property from, but he identified that he had adopted a value for a willing and not anxious purchaser and buyer. In relation to paragraph 9 of the deponent’s first affidavit, the valuer acknowledged that he had not read the relevant divisions that he had identified in his affidavit as having been read from the Family Law Rules.
APPLICANT’S SUBMISSIONS
The applicant provided proposed short minutes of order to the effect that the applicant receive 50.5 per cent of the net property pool, identified in a note to the proposed orders, and that the respondent receive 49.5 per cent. The applicant also sought a splitting order under section 90XT in the amount – of being allocated a base amount of $46,858 in his favour from the interest held by the respondent. The note identified the agreed value of $1.350 million in the property pool and added on the two vehicles, so as to achieve an amount of $1.393 million, less the mortgage of $368,300, to derive net assets of $1,024,700.
It was submitted that the Court may find that the parties contributed equally to maintaining a home and family. It was submitted that the applicant’s future needs requires an adjustment of 5-10% because of his future needs. The applicant alleged significant health needs and limitation on use of his shoulder. It was submitted that it was a long marriage and the net pool should be divided equally.
The Motor Vehicle 2 is the vehicle owned by the applicant and the Motor Vehicle 1 is owned by the respondent wife. While the Court accepts that the respective vehicles appear to have been acquired and are correctly identified as part of the matrimonial property, the Court does not regard the value of either vehicles as being appropriate to include in the property pool because of the uncertainty of such property, and as each party has a vehicle, sees no proper basis to make any alteration of property interest in respect of the two vehicles in respect of the net pool.
The applicant did not press the alleged addbacks asserted in the joint balance sheet and maintained that no addback should be found as asserted by the respondent either in respect of the $150 drawdown or the $30,000.
The applicant submitted that if the Court did not make a splitting order, then the superannuation should be treated as a financial resource. In relation to the superannuation, it was submitted that the applicant had made a contribution because he was at the time meeting the mortgage payments, even though the superannuation included an apparent salary sacrifice up to the time of separation.
The Court accepts the applicant’s submission that if no splitting order is to be made, the Court must take into account under section 75(2)(o) the financial resource available to the applicant, albeit in the future, from the superannuation she has already accumulated in the order of $103,296.
In relation to the property in Country D, the applicant submitted that the Court should accept the valuer’s evidence and that there was an admission against interest by the respondent. The Court accepts on the evidence that the respondent has a 1/6th interest in the Town M property. However given the admission by the valuer of not reading the Family Court Rules, although deposed in his first affidavit as to having done so, the Court does not accept the valuer’s evidence as reliable or credible. In that regard, the Court is also concerned about the unsatisfactory nature of the valuer’s evidence as to valuation methodology, local consultation and the reference to lease rates from which it might be inferred that the property may be the subject of a lease. This is not a case for a robust finding as to that 1/6th interest given the significant inadequacy of the valuer’s evidence. In all the circumstances, the Court accepts the respondent’s alternate submission that the 1/6th property interest in Country D should be treated as a potential financial resource of the respondent.
In that regard, the Court does not accept that the value of the financial resource is in the order of $40,000, taking into account the respondent does not appear to be capable of realising that sum as at the present day, nor has the Court accepted that valuation evidence and it is merely a potential financial resource that might permit some modest benefit to the respondent in the future. The Court does, however, accept that the respondent may be able to acquire funds from family members because of her 1/6th interest, particularly taking into account the evidence of a willingness of assistance by her sister and mother, at least one of whom are on the same title in respect of the property.
The applicant submitted that the respondent had a greater earning capacity, given the comparative incomes that have been acquired and the qualifications of the respondent. The Court does not accept that the respondent should be found to have a greater earning capacity. The applicant did not produce his 2018 tax return. After the drawdown of the $150,000 the applicant didn’t start looking for work until mid-2020. The applicant identified that he had an ability to increase his income. The Court finds that the parties have a similar earning capacity and that this is not a case where the respondent should be treated as a having a substantially higher earning capacity than the applicant. The Court accepts that the applicant has an injury, but finds that it has not impeded his ability to pursue his income earning career as a transport worker. The Court does not accept that any adjustments should be made in relation to the future earning capacity of the applicant because of his injury, as was submitted on behalf of the applicant.
It was submitted that there had been substantially failure with the disclosure obligation by the respondent. The Court does not accept the force of this submission, given first the explanation as to the belated acquisition of knowledge by the respondent as to the holding of a 1/6th interest in property in Country D, which she otherwise earlier disputed. The Court finds the criticism in respect of disclosure concerning the accounts in Country D and shareholding are ones which it is apparent the applicant was, in fact, aware of and it was the applicant who created the transfer of shares into the name of the respondent. The Court finds that the two accounts in Country D were not substantial and accepts the explanations by the respondent as to one being her mother’s account and that there are no funds still held by the respondent. The criticism of the respondent in respect of the nondisclosure concerning those accounts in Country D does not reflect any material or deliberate nondisclosure that warrants any adjustment in respect of the property interests.
The Court takes the same position in relation to the absence of disclosure of other records concerning the property in Country D given and accepts the respondent’s explanation as to her belated knowledge of her 1/6th interest and rejects the applicant’s assertion of an earlier knowledge of that property interest. The Court does, however, accept that no documents concerning a dispute have been produced by the respondent and accepts the respondent’s submission that the Court cannot be satisfied that the property is currently the subject of any Court proceedings as alleged by the respondent.
It was submitted that the $150,000 could be taking into account under section 75(2)(o). Criticism was made in relation to the non-admission of the value of the 1/6th interest, the title details and non-disclosure.
The applicant submitted that J Pty Ltd had no current value in respect of the shareholding, which the Court accepts. The Court, however, is of the view that J Pty Ltd and Mr K should be treated as being a potential financial resource available to the applicant. The court accepts that the future development of the lots is speculative, given the costs needed to proceed with the construction and the uncertainty as to what moneys are owing by the applicant and J Pty Ltd and what moneys might be owing to Mr K and whether Mr K may provide further funds to the applicant.
RESPONDENT’S SUBMISSIONS
The respondent submitted that the court should take into account the possibility of child support being sought and backdated, notwithstanding the respondent’s communication to the child support agency not terminate the pursuit of child support. The court observed that it would be, in those circumstances, contrary to the statutory regime and it would not appear just and equitable for there to be some retrospective allocation of child support prior to the date at which the respondent terminated voluntarily the child support determination. The respondent submitted that there might be further child support in an amount of $13,000 and that there might be sum of $48 per week payable. The court does not accept that there is any outstanding child support. The court does not accept that child support is a matter that should be taken into account in the present case.
The respondent submitted that the $150,000 should be treated as an add-back and otherwise taken into account under section 75(2)(o). The court does not accept that the $150,000 should be treated as waste or an unreasonable draw down of the kind warranting an add-back. The court does, however, regard the proposition by the respondent that it should be taken into account under section 75(2)(o) as having force given that the respondent as asserted the benefit of paying mortgage payments up until December 2020 when, in fact, the funds being used to pay the mortgage payments from June 2018 onwards were, in fact, the joint funds of the applicant and the respondent, the subject of the draw down of the $150,000. It’s also the case that it is apparent the funds were otherwise, at least in part, used for the benefit of the applicant alone and not for the benefit of the parties.
The court does accept that there was no effective challenge to the applicant’s evidence as to how the funds were applied, as identified in the evidence above. The respondent made reference to a Black & Kellner adjustment due to the applicant’s alleged breach of the duty of financial disclosure. The respondent submitted that the financial resources of the applicant were greater than the financial resources of the respondent insofar as being taken into account. And the applicant relied, in that regard, upon the possible profits from the lots being in Australia rather than the unrealised one sixth interest in the property in Country D.
PROPERTY LAW - LEGAL PRINCIPLES
In respect to the parties dispute regarding the division of their property these proceedings, s 79 of the Act sets out the following:
(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; or
…
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.
In exercising that discretion, the court is required to take into account the matters set out in s 79(4) of the Act, as follows:
(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.
Relevantly s75(2) provides:
(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties; 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 marriage 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 (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; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(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; and
(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; and
(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; and
(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; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of the parties; or
(iv) vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(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
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
The High Court in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”), at [35] confirmed that before an order is made adjusting the parties property the court is required to make a determination that it is just and equitable to do so. That determination is to be made, however, not as a discrete or preliminary issue but requires the Court to consider the matters set out in section 79(4) of the Act.
In the leading case of Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143, the Full Court held at [39] that, in considering the matters set out in section 79 (4) of the Act the preferred approach was to adhere to the following four steps:
(a)Identify and determine the value of the asset pool of the parties as at the date of the hearing (this necessarily involves identifying both the assets and liabilities);
(b)Identify and assess each of the parties’ financial and other contributions up until the date of the hearing (this can include the financial contributions made before, during and after the marriage);
(c)Assess how future and other events may have a financial impact on either of the parties, such as their age and state of health and their income and property or financial resources (known as the s 75(2) factors); and
(d)Step back and examine this formula-based reasoning against the history of the marriage, intangible considerations and other contingencies so as to consider whether the outcome represents a just and equitable result.
That approach had been endorsed many times: see, for example, Manolis v Manolis (No 2) [2011] FamCAFC 105 at [63] (per Coleman, May and Ainslie-Wallace JJ); Kildea v Kildea (2007) 38 Fam LR 347 at [104] (per Finn, May and Boland JJ); C & C (2005) FLC 93-220 at [22] (per Bryant CJ, Finn and Coleman JJ) and [142] (per O’Ryan J). However, as the High Court noted at [35] in Stanford, s 79(2) of the Act provides that the Court shall not make an order altering the interests of the parties to the matrimonial property, “unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. Accordingly, since Stanford, it has generally been the practice of the Court to determine, as an initial issue, whether it is just and equitable to make an adjustment of marital property. The Court has also taken into account the principles in s43 of the Act.
In those circumstances, the Court does not regard the applicant as having made any significant or real contribution to the acquisition by the respondent of superannuation earnt by the respondent. The Court has found that the applicant’s ability to earn an income up to 2015 was materially contributed to by the homemaker duties of the respondent. The Court finds that after draw down of the $150,000 in June 2018, the applicant did not fully utilise his ability to engage in gainful employment at a point of time when he could have done so, and has found that the parties have a similar future earning capacity.
In relation to section 75(2)(k), the parties married in 2002 and the significant financial and non‑financial contributions made by the respondent as a homemaker and parent contributed to the capacity of the applicant to meet the mortgage outgoings and to contribute to the maintenance of the parties. The overall contributions to the property of the parties by the respondent is slightly greater than that of the applicant.
In relation to section 75(2)(l), the Court takes into account that it is the respondent mother with whom the 15-year-old child is likely to continue to live and who will have the primary burden in relation to parental obligations in that regard.
The Court has taken into account section 75(2)(m) and finds that the applicant is not living with any other person and is renting his accommodation, and finds that the respondent is continuing to live in the matrimonial home with the now adult daughter and 15-year-old child.
The Court has taken into account matters in section 75(2)(n) in relation to the proposed orders under section 79 and the impact on the property of the parties and the declarations to be made.
In relation to section 75(2)(na), the respondent took a voluntary decision to cease the seeking of child support by her communication sent 10 February 2022. That voluntary step taken by the respondent was said to be by reason of her disagreement with the level of the proposed child support payments. The respondent disagreed with the asserted income, but that provides no satisfactory basis for the decision communicated to the Child Support Agency that the respondent sought no further child support. The Court accepts the submissions of the respondent that the potential liability for child support in the present case is not a factor to weigh in the present case where the respondent has not chosen to pursue an entitlement to child support. The Court also notes that it expressed a view that it would be difficult to see how any fresh application could be retrospective to the date of the decision by the respondent not to seek child support. The Court expressed the view that such a retrospectivity before that date is not one that would appear to accord with the statutory criteria or be just and equitable, albeit these are matters for the Child Support Agency. The Court in the circumstances regards the potential seeking of child support as a neutral factor in this case.
In relation to section 75(2)(o), the Court has taken into account the financial resources of the applicant and the respondent which are approximately equal, excluding super. The Court has also taken into account, albeit not an accrued entitlement, the future financial resource to the respondent of the superannuation that she has accumulated.
Turning to the fourth step, the Court has found that the contributions of the parties to the matrimonial property, the subject of the proposed orders for the Court, has been greater by the respondent. The Court finds that this greater contribution would have warranted a 52% to 48% adjustment in favour of the applicant. The Court finds, taking into account the future needs of the respondent, given the child living with her, warrants in all the circumstances an adjustment of 3% in her favour which would reflect 55% to the respondent and 45% to the applicant. The Court then finds that the future financial resource available to the respondent in relation to her future superannuation entitlement warrants a small deduction in the order of 2%. The Court in arriving at the net pool treated the matrimonial home as having a value of $1,350,000 and treated the mortgage liability as being $368,000. These were the figures raised with the parties. The Court considers the additional $300 liability to be an immaterial error and that the net property pool is $982,000. The Court finds in all the circumstances that it is just and equitable and appropriate to alter the parties’ property interests so that the respondent wife receives 53% of the net property pool being $982,000, excluding super, identified by the Court above, and the applicant receives 47%. The 47% reflects an amount of $461,540.00. The 53 per cent reflects an amount of $520,460.
For the reasons explained above the Court has taken into account the matters in section 79(4) and is satisfied in the circumstances that it is just and equitable to make the orders and declaration pronounced on 4 July 2023.
COSTS
At the conclusion of the hearing after a short adjournment the Court pronounced final orders and declarations and reserved its written reasons. Mr Rosic on behalf of the applicant then made an application for costs and tendered in support of the same documents that were marked exhibit K, as well as relying upon an affidavit dated 26 May 2022 and an annexure J14. Mr Rosic relied in particular on section 117(2A), (c), (d) and (f). Mr Rosic contended that there had been non-disclosure by the respondent and a protraction of the proceedings and delay, and that the lack of disclosure had contributed to the delay in the proceedings, as well as a failure to make admissions in respect of a notice to admit and disputing the authenticity of certain documents. In particular Mr Rosic drew the Court’s attention to the document J14 purporting to relate to a one-sixth interest by the respondent in land in Country D. Mr Rosic also relied in that regard upon the same issues touched in the notice to produce. Mr Rosic submitted that an adjournment of the final hearing had been caused by the conduct of the applicant.
Mr Rosic drew the Court’s attention to the settlement offers that had been made and, in particular, one dated 12 April 2021. Mr Carswell-Doherty on behalf of the respondent wife submitted that the Court in considering whether to make an order under section 117 should take into account in particular the financial circumstances of the parties and, in that regard, the financial circumstances of the wife who, in the face of a costs notice, was exposed to potential legal costs of her own lawyers in the amount of 140,000, and that she had the financial burden of looking after the child still under the age of 18 together with another child now 18, and was on a limited educator’s salary. Mr Carswell-Doherty also referred to the respondent having an income of about $50,000 per year. There was a submission as to the possible impact of a costs order on protracting the proceedings and giving rise to the possibility of an appeal.
Mr Carswell-Doherty submitted that the parties had cooperated in trying to narrow the issues and that there had been parenting proceedings on foot, together with the property that had substantially occupied a significant amount of Court time, and submitted that there was no unreasonable delay or unreasonable conduct by his client that should give rise to an adverse costs order. Mr Carswell- Doherty disputed that the June hearing dates adjournment was caused by the respondent. It was submitted that it was not unreasonable to adopt the position taken in respect of the notice to produce and in relation to the land in Country D, and it was submitted that none of the refusals to admit or denial of authenticity had any significant impact in the conduct of the trial. In relation to the settlement offers, Mr Carswell-Doherty drew attention to those offers that contained provisions effectively empowering the applicant to conduct the sale process, as well as the lack of success in respect of any superannuation splitting order.
The principles to be applied in relation to the making of a costs order under section 117 were identified by the High Court in Penfold v Penfold [1980] HCA 4. While section 117(1) expresses a general rule, it is firmly understood that that subsection is not paramount to subsection 117(2), and section 117(2) provides a discretionary power to make a costs order if the Court is of the opinion that there are circumstances that justify it in doing so and, relevantly, subject to subsection (2A) the Court may make such order as to costs as the Court considers just. Subsection (2A) is as follows.:
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
While there are criticisms that could be directed to the adequacy of the disclosure made by the respondent, the applicant is in a glass house and equally exposed to criticism in respect of the adequacy and timing of disclosure.
Further part of the disclosure criticisms, is in respect of shares transferred from the applicant’s mother in which the respondent played no part. The Court finds that the respondent had two related small bank accounts in Country D were adequately explained by the respondent, that the applicant has no funds there now and that the accounts were not of significance in amount. The non-disclosure by the respondent in this regard was not deliberate, was not material to the case and did not cause material delay. The Court is not satisfied that the non-disclosure by the respondent in the present case as to the transferred shares and the 1/6th property interest in Country D are circumstances that justifies the Court in making a costs order under section 117 of the Act. In relation to the issues the subject of the notice to admit and the dispute in relation to the authenticity of the documents concerning the property in Country D, it was not unreasonable for the respondent in all the circumstances to take issue with the authenticity of the documents and/or the facts concerning the 1/6th property interest in Country D. The respondent had not been back to Country D for almost 10 years and asserted only recent knowledge of the 1/6th property interest in Country D. The Court is well alive to the importance of the financial duty disclosure that applied to the respondent in relation to the 1/6th property interest in Country D, but in that regard prefers the explanations of the respondent over that of the applicant in respect of the timing of her knowledge of her interest in the same.
The evidence in relation to the fair market value of that 1/6th property interest in Country D, called by the applicant, was not satisfactory, and it has been treated by the Court as a source of financial resource of the respondent. The Court has not accepted that the non-disclosure was deliberate and was not satisfied that the more robust approach can be applied to the valuation evidence of the property in Country D given the unsatisfactory nature of that valuation evidence. The Court ultimately did not accept as reliable or credible the fair market value evidence of the respondent’s interest in that property as being one out of six apparent owners. There was some evidence that the property rates used concern leased property that might infer that the interest is the subject of a lease. The expert materially departed from the content of his valuation affidavit. In all the circumstances the Court was not satisfied that the interest in respect of the real property in Country D is one that should be treated as an asset, but rather should be treated as a financial resource of the respondent taking into account that at least one of the other co-owners has indicated a willingness to assist the applicant in relation to funds that she might need, albeit of a limited amount.
The Court does not regard the breach of the disclosure obligation or non-admissions by the respondent in relation to the 1/6th real property interest in Country D, the transferred shares in Country D or the two small related bank accounts in Country D as giving rise to circumstances that justify the Court making a costs order against the respondent. There Court also accepts that there has been non-disclosure by the applicant in relation to the 2018 tax return and the property interests through J Pty Ltd.
The Court does not accept the submission that the respondent has unreasonably caused delay or that the breach of the duty of financial disclosure by the respondent was intentional or caused any material delay. While the applicant alleged there had been a failure to comply with direction by the respondent, in fact both parties failed to comply with directions. The Court finds that the June 2022 hearing dates were vacated in circumstances were the applicant and the respondent were in breach of the December 2021 trial directions. The respondent had only become represented in May 2022 and that representation was impacted by COVID and the Court accepts that there was substantial financial disclosure documents only then recently produced by the applicant. The Court finds that the hearing date on 20 October 2022 was vacated due to double listing and the hearing fate in February 2023 was vacated due to the Court having COVID. In all of the circumstances, the Court finds that the adjournments of the hearing dates are not a circumstance that justifies the Court in making an adverse costs order. The conduct of the respondent whilst unrepresented are not circumstances that justify a costs order in favour of the applicant and this Court would have set aside the interim costs order made on 25 August 2021 for want of circumstances justifying an adverse costs order under s117. The Court does not accept that there has been a deliberate or material failure to comply with Court orders by the respondent causing delay in the conduct of the proceedings. The Court does not accept that the conduct of the respondent or the non-compliance with Court orders for the vacated June 2022 hearing give rise to circumstances that justifies the Court in making an adverse costs order against the respondent.
In relation to section 117(2A)(c), the matters collectively to which the Court has referred in relation to the conduct of the proceedings are not ones that satisfy the Court that there are circumstances that justify the Court making an adverse costs order against the respondent. In relation to section 117(2A)(d), the Court does not accept that the proceedings or additional steps were necessitated by a failure of the respondent to comply with previous Court orders. The Court accepts that there was some delay by the respondent in filing her initial response, but the proceedings were commenced as parenting and property proceedings. The Court does not accept that the proceedings have been conducted by the respondent in a way that reflects any material increase in costs from a failure to comply with previous orders. Taking the matters under section 117(2A)(c) and (d) collectively, the Court is not satisfied that there are circumstances that justify the Court making adverse costs order. This is not a case where either party has been wholly unsuccessful and subsection 117(2)(e) has no application, nor does section 117(2A)(b).
In relation to section 117(f) the Court has had regard to the settlement offers in exhibit K and the terms of those offers varied. There is force in the respondent’s submission that a number of those offers included a procedural control of the sale process by the applicant that was itself unreasonable. The other offers included terms that related to an outcome in relation to a superannuation splitting order that was not made by this Court. The Court is not satisfied that there are circumstances under section 117(2A)(f) that justify the Court making a costs order in favour of the applicant against the respondent. Taking the matters in section 117(2A)(c), (d), and (f) collectively relied upon by the applicant, the Court is not satisfied that these matters are circumstances that justify in this case the Court making a costs order in favour of the applicant.
The Court is also of the view that an adverse costs order is not justified given the financial circumstances of the parties are not substantial having regard to section 117(2A)(a) and the other matters to which the Court has referred give rise to the Court being unpersuaded that the circumstances justify a costs order against the respondent in favour of the applicant. The Court has regard to the final orders and declarations that the Court has made in relation to the parties and, in particular, their financial circumstances as a result of these orders, as well as the parties’ similar respective earning capacity.
The Court has found that the applicant, while having had a lower income for a period of time following the separation under one roof in March 2018, has taken into account that part of a significant drawdown of $150,000 in June 2018 was utilised by the applicant to meet his own expenses and the protracted period of explanation as to the application of those funds. The Court has also taken into account in relation to this draw down, including a trip by the applicant to Country H, which it was not until June 2020 that he then started looking for work.
Whilst it was not found to be unreasonable or wastage of a kind justifying an add-back, the consequence of that unilateral drawdown increased the cost of the mortgage, which since January 2021 has been borne by the respondent and was indirectly shared by the respondent through that draw down by the applicant on the home loan. The Court has also regard to the fact that that was a drawdown obtained as a result of misleading conduct by the applicant in respect of his financial position to the financier including the creation of a false salary to the detriment of the respondent. The Court has also taken into account the evidence of the applicant that he would not otherwise have been able to meet the mortgage. The unilateral conduct of the applicant in relation to that substantial drawdown is a further circumstance that the Court has had regard to and considers are relevant in determining whether or not there are circumstances that justify the Court making an adverse costs order against the respondent.
In all the circumstances, the Court is not satisfied that the circumstances in this case justify the Court in making a costs order against the respondent in favour of the applicant. The Court further finds that a costs order in favour of the applicant and against the respondent in the circumstances of this case is not one that the Court considers just. It is for these reasons that the Court declines to make a costs order in favour of the applicant against the respondent.
I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 4 July 2023
0
4
0