Jaswal & Jaswal (No 2)
[2023] FedCFamC2F 349
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jaswal & Jaswal (No 2) [2023] FedCFamC2F 349
File number(s): PAC 6301 of 2019 Judgment of: JUDGE MURDOCH Date of judgment: 31 March 2023 Catchwords: FAMILY LAW – PROPERTY SETTLEMENT – where the parties were married for nine years and have one child – where neither party has complied with their continuing obligation of disclosure -where the wife makes allegations of family violence perpetrated against her – where the wife’s Kennon claim is not substantiated – where the parties made equal contributions throughout the relationship – where both parties have had access to significant monies post-separation – where both parties have diminished the asset pool available for distribution- where the wife has made higher non-financial contributions post-separation and will continue to do so – orders made adjusting the property of the parties 55 percent to the wife and 45 percent to the husband. Legislation: Family Law Act 1975 (Cth), 75 (2), 79(4)(d)-(g);
Federal Circuit and Family Court of Australia Act 2021 (Cth) s190;
Federal Circuit and Family Court of Australia Rules (2021) Chapter 6, r 1.04
Cases cited: Black v Kellner [1992] FamCA 2
Fields & Smith [2015] FamCAFC 57
Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) [2003] FamCA 395 at [39]
Horrigan & Horrigan [2020] FamCAFC 25
Kennon v Kennon [1997] FamCA 27
Norbis v Norbis [1986] HCA 17
Stanford & Stanford [2012] HCA 52
Division: Division 2 Family Law Number of paragraphs: 143 Date of hearing: 6 March 2023 – 7 March 2023 Place: Parramatta Counsel for the Applicant Mr Havenstein Solicitor for the Applicant Sapphire Legal Counsel for the Respondent Mr Maddox Solicitor for the Respondent John Spence & Associates ORDERS
PAC 6301 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS JASWAL
Applicant
AND: MR JASWAL
Respondent
order made by:
JUDGE MURDOCH
DATE OF ORDER:
31 March 2023
THE COURT ORDERS THAT:
1.That within 42 days of these orders each party do all acts and things and execute all deeds, documents, instruments, and writings necessary to:-
(a)cause the property situated at B Street, Suburb C (“the B Street, Suburb C Property”) being the whole of the land contained in the certificate of title folio identifier … to be transferred to the Wife; and
(b)cause the property situated at D Street, Suburb E (“the D Street, Suburb E Property”) being the whole of the land contained in the certificate of title folio identifier … to be transferred to the Husband.
2.Simultaneously with the transfer of the B Street, Suburb C Property the parties will do all acts and sign all documents necessary to discharge the loan with Westpac Banking Corporation secured by way of mortgage over the B Street, Suburb C Property at the expense of the wife.
3.That simultaneously with the transfer of the D Street, Suburb E Property the parties will do all acts and sign all documents necessary to discharge the loan with Westpac Banking Corporation secured by way of mortgage over the D Street, Suburb E Property at the expense of the husband.
4.That in consideration of Order 1, the wife pay to the husband the sum of $179,572.
5.Within 14 days of these orders, the Wife do all things necessary to transfer to the husband all her right, entitlement and interest in the Motor Vehicle 1.
6.Within 14 days of these orders, the parties do all things necessary so as to close the Bank F account ending #...14 and distribute the remaining balance at closure equally between the parties.
7.Pending the transfer of the B Street, Suburb C and D Street, Suburb E Properties, the Husband will be responsible for and pay all loan repayments, council rates, water rates, household bills and insurances for both properties.
8.That except as specifically provided for in these Orders to the contrary, the Wife is hereby declared to be the sole and absolute owner at law and in equity and the Husband have no interest in:
(a)any motor vehicle registered in the wife’s name;
(b)all items of furniture and contents in her possession;
(c)all savings or monies in her possession, custody, or control;
(d)her contributions and accumulated entitlements with respect to or arising from his membership of any superannuation fund;
(e)her employment related entitlements including but not limited to annual leave, sick leave and long service leave.
9.That except as specifically provided for in these Orders to the contrary, the Husband is hereby declared to be the sole and absolute owner at law and in equity and the Wife have no interest in:
(a)any motor vehicle registered in the husband’s name;
(b)all items of furniture and contents in his possession;
(c)all savings or monies in his possession, custody, or control;
(d)his contributions and accumulated entitlements with respect to or arising from his membership of any superannuation fund;
(e)his employment related entitlements including but not limited to annual leave, sick leave, and long service leave.
10.That in default of the Wife’s compliance with any or all of Orders 1, 2 and 4 the parties do all things necessary to list for sale and sell the B Street, Suburb C Property by auction or private treaty at the earliest possible date at the best price reasonably attainable and that the proceeds of sale be disbursed as follows:
(a)All costs and expenses of sale, including legal costs and disbursements, sales commission and any other sale expenses for the B Street, Suburb C Property;
(b)Any amount required to pay out the loan secured by way of mortgage against the B Street, Suburb C property;
(c)In payment of any amount due to the Husband pursuant to Order 4 of these Orders, but not yet paid with interest thereon calculated in accordance with Rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 being the rate that is 6 percent above the cash rate last published by the Reserve Bank of Australia before that period commenced; and
(d)The balance of the proceeds of sale to the Wife.
11.That in default of the Husband’s compliance with any or all of Orders 1 and 3 the parties do all things necessary to list for sale and sell the D Street, Suburb E Property by auction or private treaty at the earliest possible date at the best price reasonably attainable and that the proceeds of sale be disbursed as follows:
(a)All costs and expenses of sale, including legal costs and disbursements, sales commission and any other sale expenses for the D Street, Suburb E Property;
(b)Any amount required to pay out the loan secured by way of mortgage against the D Street, Suburb E property;
(c)The balance of the proceeds of sale to the Husband.
12.If either property is not sold within three (3) months of being listed for sale or if the relevant property is sold and the sale does not subsequently proceed to completion the property is to be immediately listed for sale at a public auction by the Agent, the reserve price being 85 percent of the value agreed to by the parties for the purposes of these proceedings.
13.Pending the transfer of the B Street, Suburb C and D Street, Suburb E Properties the parties are hereby restrained from doing any act or thing to cause or permit any dealing in respect of the properties including but not limited to encumbering, transferring or selling the property without the written consent of the other party.
14.The parties each retain sole responsibility for any debt or liability in their sole name and keep indemnified the other party in relation to these debts or liabilities.
15.In the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders then a Registrar of the Federal Circuit Court (Division 2) will be appointed pursuant to section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being satisfied of such refusal or failure by way of Affidavit.
16.That all extant applications are otherwise dismissed.
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 Jaswal & Jaswal (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
These are proceedings for parenting and the alteration of property interests pursuant to the Family Law Act 1975 (Cth) (“the Act”).
The parties were married in 2007, commenced living together in 2008 and separated in November 2016.
The child of the relationship; X, was born in 2015 and is currently 7 years and 5 months of age. Substantial final parenting orders were made in April 2021 by consent. The only outstanding issues at the final hearing as to parenting were the allocation of parental responsibility, international travel and the issue and storage of X’s passport.
Unfortunately the final hearing of the matter as to both property and parenting issues was unable to be heard by me on 5 December 2023 and on this day Judge Dunkley bifurcated the proceedings and heard the parenting issues, delivering judgment on 17 February 2023.
This is the determination of the outstanding property issues heard by me on 6 and 7 March 2023.
BACKGROUND
In these reasons a statement of fact is a finding of fact, unless it is obvious from the context that I am reciting the position of one of the parties.
In accordance with the trial directions made on 27 April 2022 the parties were required to file a list of agreed facts and a joint chronology. Neither was received and instead the parties’ respective chronologies were set out in their Case Outline documents.
The uncontested background to this matter is as follows:
·The husband was born in Country G in 1977.
·The wife was born in India in 1979.
·The husband migrated from Country G to Australia in 1998.
·In 2007 the parties married in India.
·In 2007 the wife arrived in Australia and lived with the husband for a period of three weeks before returning to India to await her visa approval.
·In 2008 the wife relocated to Australia and began living permanently with the husband in a rented apartment in Suburb H, Sydney.
·In 2010 the parties moved into a rental apartment in D Street, Suburb E. At around the same time, the parties travelled to India to celebrate wedding receptions with their respective families. They received cash to the value of 2,300 Rupees together with jewellery and silver items worth AUD $4,000.
·In 2014 the parties purchased D Street, Suburb E (“the D Street, Suburb E property”) for sum of $352,000. This purchase was funded by a deposit of $70,000 from joint funds and a loan secured by way of mortgage over the property to the National Australia Bank.
·In 2014 the parties purchased B Street, Suburb C (“the B Street, Suburb C property”) for $540,000. The purchase costs were funded by joint savings of $100,000 and a loan secured by way of mortgage over the property with the National Australia Bank.
·In 2014 the parties commenced residing in the B Street, Suburb C property.
·In 2016 X was born.
·On 15 November 2016 the parties separated on a final basis under the same roof.
·In 2017 the wife purchased a Motor Vehicle 1 at a cost of $36,000 from joint savings. The motor vehicle is used by wife.
·In 2018 X was diagnosed with Autism Spectrum Disorder Level 2.
·In January 2018 the parties refinanced the loans secured by way of mortgage over both the D Street, Suburb E and B Street, Suburb C properties with the Westpac Bank. The loan secured against the D Street, Suburb E property was increased by $100,000.
·On 8 November 2018 the wife left the home with X due to an incident with the husband’s brother. The parties physically separate.
·The wife commenced these proceedings on 18 December 2019.
·On 27 March 2020 at the first return date of the matter there was no appearance by or on behalf of the husband. On that occasion Judge Harman made the following order:
4. Pending further Order, [Mr Jaswal] shall make all payments as and when they fall due with respect to:
a. Any mortgage encumbering the properties [B Street, Suburb C] and [D Street, Suburb E] and so as to meet all principal and interest payments with respect to those mortgages.
b. Cause all and any net rental income received with respect to the [D Street, Suburb E] property to be applied towards the mortgage encumbering that property.
c. All council and water rates or other services and utilities relating to or connected to those properties.
d. All insurance premiums necessary to keep each of those properties insured for their full insurable value at all times.
(“the March 2020 orders”)
·On 8 May 2020 the husband filed a Response to the wife’s Initiating Application.
·In 2020 the parties received approximately $153,000 from Company J for storm damage occasioned to the B Street, Suburb C property in 2016 (“the insurance monies”).
·On 23 February 2021 the following orders were made by consent:
1. That all the compensation monies received or to be received from [Company J], pursuant to the Determination made by Australian Financial Complaints Authority [in] 2020, by the parties or either of them be placed in the offset account of the parties with the Westpac Banking Corporation BSB … Account No. ….
2. That the Husband shall obtain 2 written quotations from appropriately licensed tradesmen and submit these quotations to the Wife for her consideration within 8 weeks of the date of these orders.
3. On receipt of these quotations, the Wife shall select the tradesman from these 2 quotations to carry out the relevant repairs and notify the Husband in writing within 14 days of the receipt of these quotations.
4. The Husband shall, on receipt of the Wife’s notification, engage the selected tradesman to carry out the nominated repairs within 4 weeks of the date of these orders.
5. When each of the relevant repairs are completed, the Husband shall withdraw the appropriate funds from the aforesaid offset account and pay the relevant tradesman for the repairs done by them.
6. That the Husband shall provide the Wife and a support person of her choosing with unrestricted and safe access to the matrimonial home to collect her belongings and the belongings of the parties’ child, [X], on a Sunday after the 15/3/2021 after 11.00am. on a date to be agreed between the parties, failing agreement on Sunday 27/3/2021 at 11.00am.
7. To the extent that the parties have not already done so, each party is to comply with the Federal Circuit Court Rules as to full financial disclosure by not later than 4.00pm 12/3/2021.
(“the February 2021 orders”)
ISSUES FOR DETERMINATION
By the conclusion of the final hearing the relief sought by each of the parties had significantly narrowed and the parties agree on a broad basis that:-
·The wife will retain the B Street, Suburb C property and the Husband will retain the D Street, Suburb E property.
·Each party will be required to refinance the relevant loan secured by way of mortgage into their own name.
·The wife will pay the husband a further sum of money in consideration of her receiving the husband’s interest in the B Street, Suburb C property.
·The husband will be responsible for all outgoings relating to the B Street, Suburb C and D Street, Suburb E properties pending their transfer to each of the parties.
·The wife will transfer the Motor Vehicle 1 to the husband.
·Each party will otherwise retain all superannuation and non-superannuation property in their possession, power and control.
·In the event the wife does not comply with her obligations pursuant to the orders the B Street, Suburb C property will be sold.
·In the event the husband does not comply with his obligations pursuant to the orders the D Street, Suburb E property will be sold.
·There should be no order in relation to either of the parties’ superannuation interests pursuant to s 90XT of the Act.
·The parties will equally divide any monies remaining in the Bank F account and thereafter close such account.
·An order should be made pursuant to section 106A of the Act.
The issues requiring determination are:-
·What sum of money the wife is to pay the husband. The wife seeks an order that she pay the husband the sum of $100,000. The husband seeks an order that he be paid the sum of $220,000.
·Whether, in the event of default by the wife of her obligations the wife or both parties should be appointed as trustees for sale of the B Street, Suburb C property.
·Whether, in the event of default by the husband of his obligations the wife or both parties should be appointed as trustees for sale of the D Street, Suburb E property.
·Whether, in the event the B Street, Suburb C property is to be sold the husband should receive the principal sum only from the net proceeds of sale as sought by the wife or the principal sum and 50 percent of any monies received over the sum of $220,000.
THE PARTIES
There is a long line of authorities setting out in clear and unequivocal terms the onus on parties to make a full and frank disclosure of all their financial circumstances: Black v Kellner (1992) FLC 92-287. The duty is absolute and is a continuing onus throughout the litigation process. It has been codified in Chapter 6 of the Federal Circuit and Family Court of Australia Rules (2021) (“the Rules”). It is critical to the jurisdiction and is fundamental to achieving justice and equity as between the parties.
Both parties make assertions that the other party has not provided full and frank financial disclosure. I am satisfied having regard to documents tendered and concessions made by each of the parties that:-
·The husband’s response to the wife’s request for further particulars and documents by way of correspondence dated 12 December 2022 was anything but fulsome. The husband has failed to provide all of the material requested by the wife including bank account statements post July 2022, documents relating to the rental of the D Street, Suburb E property and all applications made by him for Financial Hardship to Westpac Bank relating to the mortgage repayments.
·The wife did not provide a response to a request for further particulars and financial disclosure made by the husband by way of correspondence dated 13 December 2022. Such request included the provision of bank statements and superannuation details of the wife, particulars as to specific bank transactions from 2020-2022 and details of X’s NDIS funding.
·The wife did not disclose in her Financial Statement a bank account opened in X’s name that she deposited $153,000 from the insurance monies received. The wife has spent approximately $112,000 of these monies in circumstances where she concedes she was aware that there was a court order that such sum was to be applied to the repairs and renovations required to the B Street, Suburb C property. I accept her evidence that at the time of her swearing her financial statement she did not have legal representation and upon receiving legal advice she provided disclosure of this to the husband.
From the oral evidence given by each of the parties it appears that the husband was under the mistaken impression that he was only required to provide disclosure when specifically ordered to do so by the court. This is despite the fact that the husband has at all times been legally represented throughout the entirety of the proceedings and was reminded by the wife of his continuing obligation to provide full and frank disclosure until the property proceedings are finalised by way of correspondence dated 12 December 2022.
The wife’s clear evidence was that she felt she did not need to continue her obligation to provide disclosure when in her view the husband was not fulfilling his obligation to do so. She further asserted that specific questions asked of her under cover of letter of 13 December 2022 was not answered as: “The answers were already in the documents.” Again, the wife has been legally represented throughout the entirety of these proceedings and I would assume she has been advised as to her obligations given the correspondence from her solicitors to the husband reminding him of his obligations.
I find that both parties have failed to provide financial disclosure as required pursuant to the Rules.
Both parties were unimpressive witnesses. Both had to be reminded on several occasions to simply answer the question asked of them rather than using cross examination as an opportunity to give evidence that they neglected to do so by way of their evidence in chief. I found neither of them to be particularly credible or believable in their evidence. They were both evasive in their answers and were loath to give answers to questions that did not assist their case. I would not be able to accept the evidence of one over that of the other. The wife particularly was very assertive in her responses to questions and demonstrated on several occasions her desire to present to the court her version of events rather than simply answering the question asked of her.
THE STATUTORY REGIME
In determining claims for alteration of property interests pursuant to s 79, I am required to:
(a)Make findings as to the identity and value of the property, liabilities, and financial resources of the parties, or either of them, at the time of the hearing and determine the legal and equitable interests of the parties in such property.
(b)Consider, identify and assess the contributions by the parties to the acquisition, conservation and/or improvement of their property, including financial and non-financial contributions and any contributions to the welfare of the family before, during and after the relationship came to an end.
(c)After consideration of altering the interests in the property pool on the basis of contributions, to consider whether there should be any further adjustment to the either of the parties on account of the matters set out in s 79(4)(d)-(g) of the Act, including any relevant considerations pursuant to s 75(2) of the Act.
(d)Ensure that the orders to be made are just and equitable in all the circumstances.[1]
[1] Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143; [2003] FamCA 395 at [39].
THE BALANCE SHEET
The failure by both parties to fulfil their mandatory obligation to provide a continuing full and frank disclosure of their financial circumstances means that there are significant issues with my ability to determine the true value of the parties’ superannuation and non-superannuation property. Further, contrary to clear Orders and Directions made by this court, valuations have not been obtained of those items of property that are the subject of a dispute as to their value. Despite this issue being clearly raised by me several times during the course of the final hearing neither party sought an adjournment to allow further disclosure or the obtaining of valuations.
This matter has been on foot since December 2019. Trial Directions were made in the matter on 27 April 2022. The parties have had ample opportunity to ensure the evidence that grounds the relief they each seek is before the court. Having regard to the overarching purpose of the Court to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible pursuant to s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and Rule 1.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 I will simply have to determine the superannuation and non-superannuation property of the parties as best I can in all the circumstances. Each of the parties are bound by the case they ran at trial and the evidence they relied upon to support it, including omissions.
The draft Joint Balance Sheet filed by the parties on 3 March 2023 was so lacking in completeness that the parties were directed to have discussions during the course of the first day of the final hearing and provide me with a further joint draft. Such draft balance sheet was provided to me just prior to the commencement of final submissions. Whilst it reflected a narrowing of the issues for determination as the wife no longer pressed for monies to be notionally “added back” to the property pool and asserted liabilities were reduced, it still contained glaring gaps as to the values asserted by each of the parties. No less than nine items of property had “subject to disclosure” listed for its asserted value by the husband. Three items of property were listed the same way by the wife.
The husband submitted in those circumstances that I can take the values asserted by the other party as an admission against interest. There were no submissions made by the wife as to how I was to deal with this issue and I infer from that omission that the wife concedes that this is an appropriate course of action.
The joint draft balance sheet, being Exhibit J1, is as follows:-
Ownership
Description
Wife's Value
Husband's Value
ASSETS
1.
Joint
B Street, Suburb C NSW, Australia
E$720,000.00
E$720,000.00
2.
Husband
D Street, Suburb E, NSW, Australia
E$400,000.00
E$400,000.00
3.
Wife
X Savings Account (Westpac - #...80)
$7,260.00
Subject to disclosure
4.
Wife
Company K Everyday Options (#...70)
$26.00
Subject to disclosure
5.
Wife
The Company L Pty Ltd
$84.00
Subject to disclosure
6.
Wife
Motor Vehicle 1
E$16,000.00
Subject to disclosure
7.
Wife
Motor Vehicle 2
E$6,000.00
Subject to disclosure
8.
Wife
Jewellery
E$15,000
Subject to disclosure
9.
Joint
Westpac Choice Offset A/c (#...37)
$55.00
$55.00
10.
Joint
Bank F A/c (#...14)
Subject to
Disclosure
$3,000.00
11.
Husband
Westpac Choice A/c (#...46)
NK
Does Not Exist
12.
Husband
Westpac Choice A/C (#...26)
Subject to
Disclosure
$1,200.00
TOTAL
$1,164,425.00
$1,124,255
LIABILITIES
13.
Joint
B Street, Suburb C Property - Repay Home Loan
(#...83)
$222,510.00
$222,510.00
14.
Joint
D Street, Suburb E Property – Fixed Rate Investment
Property Loan (#...96)
$317,113.00
$317,113.00
15.
Wife
Bank M credit card (#...00)
$1,554.00
Subject to disclosure
16.
Husband
Bank N Mastercard (#????)
Subject to
Disclosure
E$1,000.00
17.
Husband
Company O Credit Card (#...96)
Subject to
Disclosure
E $500.00
18.
Joint
Money drawn by the wife out of the offset account
Subject to
Disclosure
$40,000
TOTAL
$541,177
$581,123
SUPERANNUATION
19.
Wife
Super Fund 1 Accumulation
$99,354.00
20.
Husband
Super Fund 2 Accumulation
Subject to
Disclosure
$E102,000.00
TOTAL
$99,354
$102,000
NETT TOTAL INCLUDING SUPERANNUATION
$722,602
$645,132
BALANCE SHEET FINDINGS
Assets
Items 3 – 5: Savings of the Wife
The wife’s assertions as to the amount of savings currently held by her is not conceded by the husband and is “subject to disclosure.” There is no evidence as to the current amount of savings in each of these accounts. No subpoena were issued to the relevant financial institutions.
In all the circumstances I must, in the interests of dealing with this matter as expeditiously as possible, accept and find the savings in each of the accounts as asserted by the wife.
Items 6 – 7: Motor Vehicles
Both motor vehicles are registered in the wife’s name. Again the values asserted by her are listed as “subject to disclosure” by the husband. I am unsure as to what disclosure is sought or required that would assist in the determination of the value of these items. Both parties have failed to obtain a valuation of the two motor vehicles when the value appears to be in dispute.
I will, in the absence of any evidence, have to accept the values as asserted for each of these vehicles by the wife.
Item 8: Jewellery
The value of the jewellery is in dispute. There has been no valuation of the jewellery. In addition, the larger issue is that, whilst the jewellery is listed as being in the possession of the wife, both parties assert that the “jewellery” (whatever that may comprise) is in the possession of the other.
The wife deposes that the silver items received by the parties at their wedding ceremony and “some silver jewellery” is in the husband’s mother’s possession in Country G. She deposes that despite this court making orders on several occasions to retrieve her personal belongings, the husband has not facilitated this occurring.
The husband deposes that he has “occasionally” collected and handed over items belonging to the wife and X at her request. He has further filled his car with items the wife needs and transported them to the wife by “exchanging our vehicles on several occasions.” On 15 March 2021 he emailed the wife and notified her that he was available on 25 and 26 March 2021 for her to collect any of her belongings.
Marked as exhibit H3 is a chain of email correspondence between the parties that includes references to jewellery. The husband’s email to the wife on 26 April 2019 states:
As far as I know most of the highly valued items you sent to India with your mother during her trips since we both had major security concerns here. The leftover items whatever you kept here for your usage are untouched and should be there wherever you kept them. They will be accessed only with your presence in front of an [sic] witness.
The mother responded to the father by way of email on 27 April 2019:
[X]’s jewellery is here, it wasn’t sent to India. The bangles ring and chain they gifted her is in the box with jewellery from your family. The chain your mother gave will be there, I remember. The silver [jewellery] [Ms P] gave and gold bracelet not chain that [Ms O] gave were more recent and there as well…
My jewellery, some rings, bangles which was a gift to me from my parents after [X] was born, some pearls and a box with earnings [sic] are the ones I purchase from my income that I have here.
Thus the husband asserts that the highly valued items of jewellery were sent to India with the wife’s mother. He appears to concede by way of his correspondence that there are “leftover items” still remaining in the home. The husband conceded in cross examination that “some” of the wife’s jewellery is in the former matrimonial home but asserts it is not in his possession as he does not know where it is. He has made no efforts to locate it. It was the husband’s evidence in re-examination that he did not make any effort to locate the jewellery in the home as there was no reason for him to do so as most of it had been sent to India.
The wife by way of her correspondence appears to concede that “I have here” some of the jewellery. She asserts that X’s jewellery together with other items are still in the home. In cross examination it was put to the wife that the husband saw a brown pouch with jewellery being packed into her mother’s suitcase as she was leaving from a visit to the family to return to India. She stated:
Gold is not something that is easily just carried over the border, Mr Maddox. If there was any gold sent over, it would be taxed very heavily. Even if you take 5 grams of gold it’s something that has to be declared. It would be at a very expensive cost to me - it may be something I would consider if I was leaving the country and moving eventually. But no gold that is mine or my daughters has ever been sent overseas.
The wife then stated that it was the husband that had in fact packed her mother’s suitcase and driven her to the airport. The wife’s mother is not on evidence. The wife conceded that she was not there when the husband packed the suitcase and thus the husband is the only person as between the parties who is able to say what was packed.
There is no evidence as to what the title “jewellery” encompasses. I am simply unable to make any findings as to the location of the “jewellery” nor its value on the evidence before me. It appears that both parties may have some items of jewellery in their possession. This item will be removed from the balance sheet and I will not make any orders with respect to “jewellery.”
Item 10: Joint Westpac Choice Offset Account A/c #...14
Whilst this is a joint bank account the wife strangely lists the husband’s asserted value as “subject to disclosure.” I am unsure as to why this might be in circumstances where there is no evidence that the wife could not have accessed this account to ascertain its current value in the same way the husband could.
In any event, both parties agree that this bank account is to be closed and the balance divided equally. In those circumstances I will remove this item from the balance sheet as it appears that in reality neither party is certain as to its current value.
Items 11 and 12: Westpac Bank Accounts held by the Husband
These two bank accounts listed on the balance sheet were the subject of much cross examination of the husband. The husband was consistent in his evidence that he currently has one bank account with Westpac Bank, being the account ending in #...46. He is not aware of ever having any other Westpac Account. There is no evidence that the husband has ever held another Westpac Bank Account. This is evidence the wife could have easily obtained under subpoena if she wished to in circumstances where both accounts appear to have been listed in error on the prior draft balance sheet.
I accept the submissions made on the husband’s behalf that this is simply a typographical error and that the two entries should be one entry for the account ending in #...46 with a current value of $1,200.
Liabilities
Item 13: Repay Home Loan
This the loan secured by way of mortgage over the B Street, Suburb C property. The parties agree that the wife is to retain this property. The wife asserts that the loan is currently $222,839. The husband asserts that it is $222,510; a difference of $329. Unsurprisingly there is no evidence to support either parties’ contention.
The joint draft balance sheet filed on 3 March 2022 stated that the loan total was $222,510. With no evidence to support either parties’ contention, I accept this figure as the total sum of the loan.
Item 14: Fixed Rate Investment Property Loan #...96
This is the loan secured by way of mortgage over the D Street, Suburb E property. The parties agree that the husband is to retain this property. The wife asserts that the loan is currently $315,211 and the husband asserts it is currently $317,113. Again, unsurprisingly there is no evidence to support either parties’ contention.
The agreed joint sum of such loan on 3 March 2023 in the draft joint balance sheet was $317,113 and I accept this sum.
Item 18: Money Withdrawn by the Wife out of the Offset Account
It was agreed prior to the commencement of final submissions that this item be deleted from the balance sheet.
Accordingly, I find that the property pool consists of assets and liabilities as follows:-
Ownership
Description
Value Found
ASSETS
1.
Joint
B Street, Suburb C NSW, Australia
$720,000
2.
Husband
D Street, Suburb E NSW, Australia
$400,000
3.
Wife
X Savings Account (Westpac - #...80)
$7,260
4.
Wife
Company K Account (#...70)
$26
5.
Wife
The Company L Pty Ltd
$84
6.
Wife
Motor Vehicle 1
$16,000
7.
Wife
Motor Vehicle 2
$6,000
8.
Joint
Westpac Choice Offset A/c (#...37)
$55
9.
Husband
Westpac Choice A/c (#...46)
$1,200
TOTAL
$1,150,625
LIABILITIES
10.
Joint
B Street, Suburb C Property - Repay Home Loan (#...83)
$222,510
11.
Joint
D Street, Suburb E Property – Fixed Rate Investment Property Loan (#...96)
$317,113
12.
Wife
Bank M credit card (#...00)
$1,554
13.
Husband
Bank N Mastercard
$1,000
14.
Husband
Company O Credit Card (#...96)
$500
TOTAL
542,677
TOTAL NET NON SUPERANNUATION PROPERTY
607,948
SUPERANNUATION
15.
Wife
Super Fund 1 Accumulation
$99,354
16.
Husband
Super Fund 2 Accumulation
$102,000
TOTAL SUPERANNUATION PROPERTY
201,354
TOTAL SUPERANNUATION AND NON SUPERANNUATION
809,302
I find that the value of the parties’ non-superannuation property is $607,948.
I find that the value of the superannuation property is $201,354.
The total value of the non-superannuation and superannuation property of the parties is $809,302.
The total value at law of non-superannuation and superannuation property held by the wife prior to any adjusting order is $217,386 and by the husband is $591,916.
WHETHER AN ORDER ALTERING PROPERTY INTERESTS SHOULD BE MADE
I should only make orders pursuant to s 79 of the Act if I am first satisfied that it is just and equitable to do so. It must not be assumed that the parties’ rights or interests should be different to that which already exists: Stanford & Stanford (2012) FLC 93-518; [2012] HCA 52 (“Stanford”).
I find that the requirements identified in Stanford are satisfied in this matter having regard to:
·The parties in this matter, having married and mixed their finances as a family, have now separated. It is therefore not possible for them to continue to mutually enjoy the accumulated assets.
·Both parties invoke s 79 of the Act seeking orders for property settlement.
·The current legal interest of the parties needing to be changed or adjusted when consideration is given to the contribution and other factors identified below.
It is therefore just and equitable in all the circumstances to make orders pursuant to s 79 of the Act adjusting the financial interest of the parties.
THE ASSESSMENT OF CONTRIBUTIONS
The wife’s evidence is that at the commencement of cohabitation she had jewellery to the value of $11,000. The jewellery was valued for insurance purposes upon the wife moving to Australia. There is no evidence of this insurance valuation. She asserts that she had household items to the value of $1,000 and no liabilities.[2] There is no evidence to support these assertions. The husband deposes that upon the wife’s relocation to Australia in 2008 the wife owned jewellery with a value of approximately $3,000 to $4,000 and household items to the value of $500. There is no evidence to support the husband’s unqualified opinion in this regard. I can only make a finding that at the commencement of the relationship the wife had some savings and jewellery.
[2] Wife’s Affidavit, paragraph 12.
The husband deposes that at the commencement of the relationship he had some savings but that he spent most of these savings on travelling to India in 2007 to meet the wife. It does not appear to be in dispute that the husband bore the costs of the marriage ceremony in 2007 and that he purchased some jewellery for the wife around this time. He had accrued a credit card debt in the sum of $12,000. The father’s evidence is that he supported the wife in her living and medical expenses in India and her travel expenses to Australia, including her visa-related costs.[3] I find that at the commencement of the relationship the husband had some savings and a credit card debt in the sum of $12,000.
[3] Husband’s Affidavit, paragraph 18.
Upon the wife’s move to Australia, the parties resided together in an apartment in Suburb H which the husband had been renting for $270 per week. The husband deposes that until mid 2008 he solely attended to payment of rent, utilities, and groceries whilst the wife attended to household maintenance. The husband deposes that he arranged a loan with Company Q Credit Line to pay for household setting-up expenses.[4]
[4] Husband’s Affidavit, paragraph 22.
The wife’s written evidence is that upon her move to Australia, she paid off the husband’s personal loan which was approximately $18,000. She provides no evidence or explanation of the source of funds to discharge this debt. The wife was not cross-examined as to the payment by her of the husband’s personal loan. I cannot safely make a finding that the wife had the capacity to discharge a loan in the sum of $18,000 as I am not satisfied that the wife has discharged her evidentiary onus to prove such an assertion.
The wife secured employment in 2008. She worked full time from 2008 to 2008. She worked part time from 2008 to 2009 and returned to full time work in 2009. When X was born in 2015 the wife took a period of seven months maternity leave and returned to part time work in 2016.[5]
[5] Wife’s Affidavit, paragraph 58-63.
The husband was employed as a manager at Employer R and earnt approximately $45,000 to $50,000 per annum from 2007 to 2012. In 2012 he commenced his employment with Employer S and since this time has earnt $85,000 per year on average.
It is uncontested that in 2009 the husband purchased a Motor Vehicle 3. He obtained a personal loan to assist with this purchase. [6] The wife deposes that the Motor Vehicle 3 was purchased for $35,000 and that with her assistance the parties were able to obtain a joint loan from Company T to purchase the car.[7]
[6] Husband Affidavit, paragraph 29.
[7] Wife’s Affidavit, paragraph 22.
The parties resided in the Suburb H apartment until 2010 at which point they moved into an apartment in Company U with a friend of the wife, Ms V. The parties paid $200 per week to Ms V.
In 2010 the parties opened a joint bank account with Bank F ending #...14. The parties deposited their salaries into this account.
In 2010 the parties began renting an apartment in D Street, Suburb E. They paid $280 per week in rent from their joint account. At this time the wife was earning $60,000 per annum and the husband was earning $45,000 per annum.
The parties travelled to Country G in 2010 to participate in wedding receptions. The wife deposes that the parties paid for their reception in Country G and that they did not receive any gifts or jewellery following the reception. The wife’s evidence is that they received $2,300 in Rupees and two silver items worth over $4,000AUD and that the Rupees were left in India to be returned to the donors.[8]The husband deposes that the parties were gifted approximately $14,000 in cash following the reception. The husband asserts that the wife held an account in her sole name in India and that she accessed the funds when necessary.[9] The wife did not concede during the course of cross-examination that she had a bank account in India. No submissions were made by the husband that the wife has undisclosed assets. I am not satisfied in any event that there is sufficient evidence to ground such a finding.
[8] Wife’s Affidavit, paragraph 26-27.
[9] Husband Affidavit, paragraph 34.
The parties opened a joint savings account with Bank W Online Bank in 2010 for the purpose of saving money to purchase a house. The parties deposited money into this account between 2010 and 2014.
In 2014 the parties purchased the D Street, Suburb E property for $352,500. The sum of $70,000 was applied to the purchase from joint funds toward a deposit on the property. The balance of the purchase price was funded through a mortgage with the National Australia Bank. The property was purchased in the sole name of the husband but both parties were listed on the loan secured by way of mortgage over the property.
The wife’s income during this period was $95,710 per annum and the husband’s income was $55,000 per annum. The parties continued to contribute equally to rent, utilities and general living expenses.[10]
[10] Wife’s Affidavit, paragraph 34.
The D Street, Suburb E property was tenanted throughout the relationship. The rental income was applied to the mortgage and the shortfall of any mortgage repayments was paid from joint funds.[11]
[11] Husband’s Affidavit, paragraph 39.
In 2014 the parties purchased the B Street, Suburb C property for $540,000. The sum of $100,000 was applied from joint funds toward the deposit. The parties commenced residing in the B Street, Suburb C property in 2014.
Both parties continued to deposit their incomes into the joint Bank F Account ending #...14. The funds were subsequently transferred to the Westpac offset account ending #...37. All mortgage payments for the D Street, Suburb E and B Street, Suburb C property were paid from the offset account. All living expenses including rent, utilities, insurance, groceries, car repayments, strata rates and council rates would be paid from the Bank F Account ending #....14.[12]
[12] Wife’s Affidavit, paragraph 41.
The wife deposes that in addition to being engaged in paid employment she was the primary homemaker. She deposes that she would attend to X’s daily needs as well as maintain the household and attend to the cooking, cleaning, washing, preparing of meals, gardening, shopping and paying the bills. She took X to all of her medical and therapeutic appointments.[13]
[13] Wife’s Affidavit, paragraph 66.
The wife asserts that the husband did minimal housework between 2008 and 2015. She deposes that after X’s birth the husband consistently cleaned the bathroom, attended to grocery shopping, and vacuuming.[14]
[14] Wife’s Affidavit, paragraph 67.
The husband deposes that following X’s birth he took a period of paid parental leave from work and assisted the wife in caring for X.[15] He asserts that he took on majority of the housework from the commencement of the parties’ relationship and did “almost everything” prior to and following the birth of X. The husband deposes that he is a trained tradesman and thus he did majority of the cooking as well as shopping, cleaning and maintenance of the garden.[16]
[15] Husband’s Affidavit, paragraph 52.
[16] Husband’s Affidavit, paragraph 55.
In 2018 X was diagnosed with Autism Spectrum Disorder Level 2. The husband deposes that prior to her diagnoses the parties took X to their local doctor, and she was then referred to a paediatrician and psychologist. His evidence is that he attended almost every medical appointment with the wife at which time they would come to a joint decision as to X’s ongoing care and needs.
The husband deposes that in 2018 the parties hired a carer through a local agency for a period of five months. The husband asserts that X had a carer until she started school in 2021. The wife was cross-examined as to this assertion. Her oral evidence was that they were not carers but rather were educators and they assisted with X on the days the mother worked. She denied that they attended to any housework but that they provided X with the same support she would have otherwise received in a regular child care setting. The wife was not successfully challenged on this evidence and I accept and find that this was so.
Both parties were cross examined on their homemaker and parenting contributions during the course of the relationship. Both gave oral evidence consistent with their written evidence and were unable to be successfully challenged on this evidence. On balance I accept and find that both parties assisted to the best of their ability in homemaking and parenting tasks during the course of the relationship.
The wife alleges that her contributions were made more difficult during cohabitation as a result of the husband’s conduct.
The principles relevant to an assessment of contributions in the context of allegations of family violence were set out in Kennon v Kennon (1997) FLC 92-757 (“Kennon”) where, at 84,294 the Full Court stated:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79.
I will deal with each of the wife’s contentions as deposed to in her trial affidavit under the heading “Family Violence” in turn.
The Husband Raising His Voice
The wife deposes that in 2007 whilst the wife was still living in India waiting for her Australian visa the husband shouted at her over the phone. Her oral evidence was that the husband “sometimes” raised his voice at her during the relationship. The alleged incident in 2007 was prior to the parties commencing to live together and thus, even if I were satisfied it had occurred, the wife has not established a sufficient nexus between this alleged incident and her contributions being made significantly more onerous throughout the relationship. I cannot make any findings on a vague allegation that the husband “sometimes” raised his voice during the course of an argument.
The Wife’s Relocation to Australia
The wife deposes that her arrival to Australia in 2008 was difficult and she lost connections with her parents and extended family in India as a result of her marriage to the husband which was against their wishes. She states that she struggled culturally and emotionally with being in a new country without family or friends. The wife was cross examined as to this assertion. She conceded that she made the decision to marry the husband. She conceded that the parties’ made the joint decision two years into their relationship that the wife would move to Australia. The wife conceded that her assertion that she struggled as a result of being in a new country without family or friends is not an assertion of family violence notwithstanding that it appears under the heading titled ‘Family Violence’ in her affidavit.
Coercive and Controlling Behaviour
The wife alleges that the husband worked long hours and told her to not leave the home as it was dangerous and made her fearful and so she only left the home to get groceries and go to work. The parties rarely socialised or took holidays together. The wife’s written evidence is that:
I was not allowed to socialise and the Respondent only had two friends he introduced me to. It was therefore difficult for me to make friends. I felt isolated and controlled but I trusted and believed everything the Respondent said. I thought he loved me and only wanted to protect me.
The wife does not particularise how the husband stopped her from socialising. She asserts that the husband alienated her from having contact with her colleagues but does not particularise in any way how it is asserted that he did this.
The husband deposes that he informed the wife of the safety status of Suburb H when she arrived whilst encouraging her to explore the area during the daylight hours. He deposes that the wife enjoyed exploring Sydney by herself using public transport.
The wife was cross-examined as to this assertion. The following exchange took place:
MR MADDOX: Do you think he might have been just wanting to protect you from going out in what he considered to be an unsafe area?
WIFE: It wasn’t an unsafe area. It was groceries, a laundromat, just shops. But the way [Mr Jaswal] provided information to me was that I shouldn’t leave home.
MR MADDOX: That might’ve been the situation that he didn’t want you to go out even if it was an area that you now say was safe, but he might not have then wanted you to go out and be unsafe?
WIFE: The area hasn’t changed.
I am not satisfied based on the contested evidence that the wife has met the evidentiary burden of establishing that the husband has engaged in coercive and controlling behaviour.
In 2008 the wife alleges that the husband would not let her use the bathroom whilst out at a restaurant in either Suburb Y or Suburb Z and yelled at her when she went against his wishes and did so. The husband then left her stranded on the road at the front of the restaurant and she had to find her way home. Upon returning home the husband treated her with silence for nearly two weeks and would not eat the meals she prepared. Her oral evidence in relation to this issue was:
I was very new to the country. I was in a place where I had no idea where I was. I did not have a mobile phone with me at that time. I barely had any money. It was night. [Mr Jaswal] was very displeased that I wanted to use the facilities and went against him to go and ask a nearby establishment whether I could use their toilets and he abandoned me at that time. He was the only person I knew and I relied on and I was afraid that if I said or did anything. I didn’t even know what would displease him at that time so I was just very frightened of saying or doing anything because I was by myself and I didn’t know anything at the time.
The husband deposes that he has no recollection of such an event. The Husband was not cross examined as to this event and so I am unable to make a judgement as to the veracity of the husband’s denials. On balance I cannot in the circumstances make a finding as sought by the wife.
The wife deposes that the husband had a temper but would not “explode” but rather give her the “silent treatment” for weeks on end. The wife’s evidence was that she “could not recall” giving evidence in the parenting proceedings that she could not recall the husband ever raising his voice. The husband denies all accusations of abusing the wife in any way or form as stated in her written evidence. He deposes that he has always maintained an approach of collaboratively finding solutions to any problem through negotiation and tried to avoid highly emotional arguments. His evidence is that during the relationship the wife demonstrated a tendency to become very emotional, angry, loud and abusive during conversations which would then escalate into arguments. He often felt that he had no choice but to withdraw.
The wife was cross-examined as to this issue as follows:
MR MADDOX: Do you think him not speaking to you for weeks on end and ignoring you, that’s family violence?
WIFE: yes – we were not room-mates, we were in a relationship and I was reliant on him as the only person I knew and wanted to have a life with and it brought a lot of things to question as to what I was doing there.
I am not satisfied that such conduct, even if proven, is conduct that would have made the wife’s contributions more onerous.
The wife asserts that the husband did not respond to her requests to purchase a car. There is little particularity to such an assertion. I am not satisfied that, even if this assertion was accepted, the wife has met the evidentiary burden to establish that this is conduct that should be viewed as having had a significant adverse impact upon the wife’s contributions to the marriage.
Physical Assault
The wife further asserted both in her written evidence and during the course of cross examination that the husband has thrown a phone at the wife and X. The wife’s written evidence is that in 2017 the husband threw a phone at the wife after an argument whilst she held X in her arms. This allegation is denied by the husband.
During the course of cross-examination the wife asserted that the husband had “raised his voice, and thrown a phone at me and my daughter” and that the husband’s denial of this is a lie. On the evidence I am not satisfied that the wife has met the evidentiary burden to ground the finding sought.
Third Parties
In 2009 a stranger in a group of young people threw an object at the wife in 2009 hitting her in the head whilst the husband was present. The husband “abandoned her” and ran after the group of people. She became fearful of the husband and walked on eggshells around him after he told her he had stabbed one of the young people with a thermometer in his thigh after she was injured.
I am unable to ascertain how an assault on a third party is conduct occasioned by the husband that made the wife’s contributions more onerous. No submissions were made by the wife as to this incident.
Still under the heading “Family Violence” is the wife’s evidence that the husband’s brother stayed with the parties and X for a period of time and there was an incident whereby the wife asserts that the husband’s brother tweaked X’s nipples and she and X thereafter left the home and did not return. I am unable to understand how this alleged incident is conduct that should be attributed to the husband.
Whilst I am satisfied on the wife’s evidence that she felt vulnerable with no family support network in Australia and was unhappy with the husband’s behaviour at times, weighing up all the available evidence, I am not satisfied that the wife has discharged the evidentiary onus to establish either directly or by implication that the contended conduct of the husband has made her contributions, in the circumstances of their relationship, significantly more onerous than they ought to have been. The contention of the wife that an adjustment to the wife ought to be made from such alleged conduct is rejected.
The wife deposes that following the parties’ separation in November 2016, she continued to contribute toward the mortgage on both properties and household expenses of approximately $3,500 per month.[17]
[17] Wife’s Affidavit, paragraph 43.
In 2017 the parties purchased a new Motor Vehicle 1 for $36,000 from joint funds. The vehicle was registered in the wife’s name.
In 2018 the parties refinanced both mortgages from NAB to Westpac due to lower interest rates. The mortgage secured against the D Street, Suburb E property was increased by $100,000 and those funds remained in the parties’ offset account.[18] The wife became concerned that the husband intended to send money overseas and applied the sum of $60,000 toward the mortgage on the B Street, Suburb C property. She did so without the consent of the husband.[19]
[18] Wife’s Affidavit, paragraph 45.
[19] Wife’s Affidavit, paragraph 45.
The wife and X vacated the B Street, Suburb C property in November 2018 and the husband has had the benefit of occupation of the property since this date. The wife has been responsible for and paid the expenses for herself and X to reside in rental accommodation.
The wife deposes that after she left the B Street, Suburb C property in November 2018, she continued to pay the sum of $2,000 per month until 30 April 2019.[20] From 1 May 2019 to 15 September 2019, the wife contributed $400 per month toward both mortgages pursuant to an agreement with Westpac Bank.[21]
[20] Wife’s Affidavit, paragraph 46.
[21] Wife’s Affidavit, paragraph 47.
The wife deposes that since November 2019 the husband has caused the rental monies received from the D Street, Suburb E property to be paid to a separate bank account in his name only.
In 2018 the wife was involved in a collision with a another vehicle. The parties received an insurance payout from Company AB in the sum of $7,500 by way of settlement. It is uncontested that this sum was divided equally between the parties. The wife deposes she used her share of these insurance monies to purchase a Motor Vehicle 2. The husband does not provide any evidence of his application of these funds.
The wife deposes that on 19 November 2019 the husband withdrew the sum of $15,000 from the Westpac offset account ending #...37 without the wife’s consent. On the same day the wife withdrew the same amount.
The husband’s written evidence in relation to his withdrawal of $15,000 is that the funds were used for some urgent repair and bathroom renovations to the B Street, Suburb C property. The husband was cross-examined as to his use of these funds and he conceded that he did not complete the renovations and instead approximately $6,000 of those funds were applied to his legal fees and $9,000 was applied to mortgage repayments and bills.
As set out above the March 2020 Orders required the husband to be responsible for and pay all outgoings including the loans secured by way of mortgage over the two properties. To this end an order was made that the husband was to apply all and any rental income received from the D Street, Suburb E property to the loan secured by way of mortgage over that property. In April 2020 and July 2020 the husband successfully applied for Hardship Relief with Westpac Bank. The bank granted a moratorium on loan repayments for a period of six months.
The husband during the course of cross-examination disclosed that he had made a further hardship application in respect of the mortgage repayments in November 2022. He did not provide any disclosure to the wife in respect of this application as he stated the bank had informed him that they would communicate this to the wife. The husband provided oral evidence that prior to the most recent hardship application of November 2022 he was paying an estimated $4,000 per month in mortgage repayments and he currently pays $1,400 each month being the interest only amount against the mortgages. He continues to receive $430 per week in rent from the D Street, Suburb E property. Thus the husband has had the benefit of an unknown value of rental monies received from the D Street, Suburb E property subsequent to separation for his own use.
The difficulty in determining the application of the rental monies received by the husband in circumstances is exacerbated by the husband not keeping the receipt of rental income separate from his own personal financial transactions; for example for periods of time the rental monies received were deposited into his own personal account.
The husband conceded that on 19 November 2018 he withdrew $15,000 from the joint Westpac Offset account ending #...37 and applied approximately $6,000 towards legal fees and the balance to paying the mortgages and “other bills.”
The wife gave evidence that she was not aware that the deposit into the Westpac account ending #...37 of $9,000 on 1 February 2021 was for out of pocket expenses relating to the damage to the B Street, Suburb C property. I accept and find that this was so. The wife accepts that the sum of $153,670 was received by the parties into the same Westpac account on 23 June 2021 and I find that this is so.
The wife conceded during the course of cross-examination that she made the following withdrawals from the Westpac Offset account ending #...37:
·$42,000 on 28 June 2021;
·$29,835 on 28 June 2021; and
·$75,835 on 29 June 2021.
The wife stated that she could not recall whether she withdrew a further $7,500 on 3 March 2021 at Suburb AC as put to her by counsel for the husband. The wife did not deny such a withdrawal or assert that it was the husband that he had withdrawn such sum. It was not put to the husband that he had withdrawn this sum. I find that on balance the wife withdrew and had the benefit of this further sum.
The wife conceded that she withdrew $153,000 from the offset account into which the insurance monies were paid. She conceded that she has spent approximately $112,000 of these monies. The $40,039 in her bank account ending in #...78 are “mainly” from the insurance monies.
The wife’s oral evidence was that she withdrew the insurance monies into a bank account which she opened in X’s name and has used those monies for X’s school fees, uniforms, health insurance, furniture, a laptop, and a washing machine. There is currently $7,260 remaining of those funds and they are held in X’s account ending #...80. The wife conceded that she transferred the insurance monies into the account with knowledge that the February 2021 orders required the husband to use those monies for the purposes of repairs to the B Street, Suburb C property but that:
The decision between having legal representation was one that I had to make. My living expenses did not support me being able to fund my living expenses and having legal representation so it was the best choice I could make.
It was the wife’s evidence that of these sums withdrawn $40,039 remains in her bank account listed on the joint draft balance sheet. Thus on the concessions of the wife and my finding as set out above the wife has had the benefit of and expended approximately $100,000 post separation.
The wife conceded that her actions decreased the value of property available for adjustment between the parties. Further, the renovations that were to be undertaken with such monies have not occurred although the wife appears to lay the blame for this at the feet of the husband as the “the respondent did not provide the three quotes” as required pursuant to the interim orders. Pursuant to the interim orders the husband was only required to provide the wife with two quotes. It was the husband’s evidence that he provided the wife with one quote and was unable to obtain a second in circumstances where the COVID restrictions at the time made it difficult for the husband to obtain quotes from builders. The wife’s evidence in this regard is surprising to say the least in circumstances where even if the husband had provided two quotes, the actions of the wife in withdrawing the insurance monies meant that there most likely would not have been adequate monies to fund the renovations in any event.
X has been in the care of the mother and spent time with the father subsequent to separation. X was diagnosed with Autism Spectrum Level 2 in 2018. It is unchallenged that X requires the mother to take her to multiple medical appointments and therapies on a weekly to fortnightly basis including a paediatrician, psychologist, speech therapist, music therapist, occupational therapist/exercise physiologist, behaviour therapist, hydro therapist and the dentist including ongoing orthodontic work. Additionally, the mother takes X to sports activities so she can develop core strength and to music lessons after school on Thursday.
X’s NDIS funding does not meet the expenses of all of her appointments and therapies in full and the wife deposes that she has paid such further expenses post separation.
THE APPROACH TAKEN
Whilst a global approach to the assessment of contributions is generally preferred this is a discretionary determination and particular circumstances may dictate that contributions to a particular asset or group of assets should be assessed separately: Norbis v Norbis (1986) FLC 91-712 (“Norbis”).
Neither counsel in this matter made any submissions as to what approach should be taken by the court when assessing the contributions made by each of the parties. Both counsel made submissions on a global approach applied to a single pool of property. Neither party seeks a superannuation splitting order. Both parties’ superannuation entitlements are close in value. I will assess contributions in line with what appears to be the parties’ agreed position: a global approach applied to a single pool of property of both superannuation and non-superannuation.
The wife has not particularised the contribution finding she submits should be made but rather submits that the court should adjust the property of the parties such that the wife receives 60 percent of the property pool. On the basis of the agreed position of the parties as to the assets each of them shall retain, Counsel for the wife submitted that this would require the wife to pay the husband a further $100,000.
The husband contended that the court would make a contribution finding to the wife of 45 percent. It was further submitted that an adjustment of 5 percent at its highest would be made in the wife’s favour pursuant to section 75 (2) of the Act. Counsel for the husband submitted that this would require the wife to pay the husband a further $220,000.
The Full Court in Horrigan & Horrigan [2020] FamCAFC 25 reinforced the holistic approach espoused in Fields & Smith (2015) FLC 93-638 and stated that the proper approach to the assessment of contributions is:
[35] …established that an assessment of contributions is not a mathematical exercise, but rather involves the identification and assessment of all of the parties’ respective contributions, in a holistic way across the course of the relationship and in the post separation period to the point of assessment…
CONTRIBUTION FINDING
I find that the parties’ financial positions at the commencement of the relationship were both modest. Both parties worked hard and applied their best endeavours during the course of the relationship by way of paid employment and through homemaker and parenting contributions. X has predominately been in the care of the mother subsequent to separation. The husband did not commence paying child support for X until October 2018, almost two years after the parties’ separation. The wife has made greater non-financial contributions as a homemaker and parent post separation. The wife has had the benefit of a significant sum of money subsequent to the parties’ separation. Similarly, the husband has had the benefit of monies both withdrawn by him and the receipt of rental income although this is difficult to quantify on the evidence. The husband has further had the benefit of occupation of the B Street, Suburb C property post separation and has not complied with his obligations pursuant to the orders of 23 February 2021.
Adopting the same holistic approach as that adopted by the parties, I assess the parties’ contributions to the property pool as equal.
This equates to both parties receiving the sum of $404,651.
RELEVANT S 79(4) (D) – (G) MATTERS
The wife is currently 43 years of age and is employed on a full time basis as an allied health worker earning approximately $88,500 per annum as per her Financial Statement. She works from home and thus has the flexibility to be mobile and care for X.
The husband is aged 45 years and employed on a full time basis as a public servant earning on average $74,000 per annum.
There is no medical evidence that either of the parties will not be able to continue in their current employment in the future or suffer from any physical or mental incapacity that will adversely hinder their capacity to support themselves. I am not satisfied that the duration of the marriage has effected the earning capacity of either party.
The wife is the uncontested resident parent of X and will continue to be responsible for transporting X to her multitude of appointments and therapies and caring for her as required. The father spends time with X each alternate weekend with additional time during the school holidays.
X currently attends AD School. It does not appear to be contested that the annual school fees paid for by the wife each year for AD School are in the vicinity of $25,000 per year. The husband concedes that he is not currently contributing to X’s school fees but that he contributes to X’s leisure and travel activities with the wife, school uniforms, clothing, entertainment and education items, and healthcare. The husband now pays formal Child Support and there is no evidence that this will not continue.
Neither party is eligible for a pension under a superannuation scheme.
Holistically and weighing up all of the above considerations, I am satisfied that an adjustment should be made to the wife of 5 percent.
That equates to the wife receiving a further $60,697.00
JUST AND EQUITABLE
I have found that the wife receives 55 percent of the superannuation and non-superannuation property pool. This equates to $445,116.
The wife will therefore receive the following:
ASSETS
Value
B Street, Suburb C NSW, Australia
$720,000
X Savings Account (Westpac - #...80)
$7,260
Company K account (#...70)
$26
The Company L Pty Ltd
$84
Motor Vehicle 1
$16,000
Motor Vehicle 2
$6,000
50% of monies in Westpac Choice Offset A/c (#...37)
$28
TOTAL ASSETS
$749,398
LIABILITIES
B Street, Suburb C Property - Home Loan (#...83)
$222,510
Bank M credit card (#...00)
$1,554
Cash payment to husband
$179,572
TOTAL LIABILITIES
$403,636
SUPERANNUATION
Super Fund 2 Accumulation
$99,354
TOTAL SUPERANNUATION
$99,354
TOTAL NET PROPERTY
$445,116
The husband will receive 45 percent of the superannuation and non-superannuation property pool. This equates to $364,186.
The husband will therefore receive the following:
ASSETS
Value
D Street, Suburb E, D Street, Suburb E NSW, Australia
$400,000
50% of monies in Westpac Choice Offset A/c (#...37)
$26
Westpac Choice A/c (#...46)
$1,200
Cash Payment from wife
$179,572
TOTAL ASSETS:
$580,798
LIABILITIES
D Street, Suburb E Property – Fixed Rate Investment Property Loan (#...96)
$317,113
Bank N Mastercard
$1,000
Company O Credit Card (#...96)
$500
TOTAL LIABILITIES
$318,613
SUPERANNUATION
Super Fund 1 Accumulation
$102,000
TOTAL SUPERANNUATION
$102,000
TOTAL NET PROPERTY
$364,186
Standing back and looking at the distribution of assets on an overall basis, I find that this distribution achieves a just and equitable alteration of the property interests of the parties.
ORDERS TO BE MADE
In circumstances where I have found that both parties have not complied with their obligation to provide full and frank disclosure in these proceedings, I am not satisfied that it is just and equitable to make orders that the wife solely be appointed as trustee for sale of the B Street, Suburb C and/or D Street, Suburb E properties. In the event of default by either party of their obligations pursuant to the orders both parties will be trustees for sale.
In the event that the B Street, Suburb C property is required to be sold arising from the wife’s non-compliance with her obligations pursuant to these orders, she seeks simply that the husband be paid the cash sum owing to him pursuant to Order 4. The husband submits that it is more just in those circumstances that the parties share equally in any monies received over the sum of $200,000. I am not satisfied that the order as sought is just and equitable when it is unknown what the selling costs and mortgage payout figure will be at the time of settlement of any sale of the B Street, Suburb C property. I am satisfied it is just and equitable that in the event that the B Street, Suburb C property is required to be sold that the husband will receive interest on the monies to be paid to him pursuant to order 4 and interest thereon is in accordance with rule 10.17 of the Rules being the rate that is 6% above the cash rate last published by the Reserve Bank of Australia before that period commenced.
Orders will be made accordingly.
I certify that the preceding one hundred and forty-three (143) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 31 March 2023
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