Jun & Genyu
[2023] FedCFamC2F 395
•6 April 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jun & Genyu [2023] FedCFamC2F 395
File number(s): MLC 9353 of 2021 Judgment of: JUDGE BOYMAL Date of judgment: 6 April 2023 Catchwords: FAMILY LAW – Property – small asset pool – assessment of contributions and future considerations – whether money provided by husband’s parents a loan or a gift – no order made for lump sum spousal maintenance – payment of non-periodic child support Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 75, 79
Cases cited: Bevan & Bevan [2013] FamCAFC 116
Biltoft and Biltoft (1995) FLC 92-614
Dawson & Dawson [2012] FamCAFC 22
Dickons & Dickons [2012] FamCAFC 154
G & G [1984] FamCA 60
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
Horrigan & Horrigan [2020] FamCAFC 25
Jabour & Jabour [2019] FamCAFC 78
Stanford & Stanford (2012) 247 CLR 108
Division: Division 2 Family Law Number of paragraphs: 162 Date of hearing: 14, 15 and 16 March 2023 Place: Melbourne Counsel for the Applicant: Ms Borger Solicitor for the Applicant: Robinson Gill Counsel for the First Respondent: Mr Murphy Solicitor for the First Respondent: Zenith Lawyers and Consultants Counsel for the Second Respondent: Mr Foo Solicitor for the Second Respondent: Oakfair Lawyers ORDERS
MLC 9353 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR JUN
Applicant
AND: MS GENYU
First Respondent
MS HENG
Second Respondent
ORDER MADE BY:
JUDGE BOYMAL
DATE OF ORDER:
6 APRIL 2023
THE COURT ORDERS THAT:
Sale of Suburb C
1.Within 30 days, the wife do all acts and things and sign all documents required to sell wholly out of Court the real property situate and known as B Street, Suburb C (Suburb C) and for that purpose:
(a)the husband and wife have the joint conduct of the sale;
(b)the sale agent shall be as chosen by the wife from the list of three agents proposed by the husband in writing (the sale agent);
(c)the wife do all acts and things to authorise the sale agent to liaise with the husband and/or his legal representative and the second respondent and/or her legal representative for the purpose of keeping the husband and the second respondent informed fully of the progress of the sale;
(d)the sale price shall be as agreed between the parties, and failing agreement the sale price shall be the price a purchaser is prepared to pay by written offer being at least $1,045,000.00 (being 95% of the valuation of $1,100,000.00 by Ms D of E Company as at March 2023); and
(e)unless otherwise agreed between the parties in writing, the completion date for any contract of sale entered by the wife shall be not more than 90 days.
2.Upon the settlement of the sale of Suburb C, the proceeds be applied as follows:
(a)first, to pay all costs of sale including sale agent commission;
(b)secondly, to discharge the registered mortgage … in favour of the Westpac Banking Corporation (the Suburb C mortgage);
(c)thirdly, to pay the second respondent the sum of $271,254.00 via her solicitor’s trust account; and
(d)the balance to the wife, via her solicitor’s trust account.
Pending the sale of Suburb C
3.Pending the sale of Suburb C:
(a)the wife have sole use and occupation of Suburb C;
(b)the wife be solely responsible, to the exclusion of the husband, for paying all outgoings in respect of Suburb C including all mortgage instalments relating to the Suburb C mortgage as and when they fall due, all council rates, and all utilities and connected services accounts as and when they fall due;
(c)the wife do all acts and things to comply with the requests of the sale agent to market and sell Suburb C including providing keys to the sale agent and facilitating inspections at the direction of the sale agent; and
(d)save for complying with the provisions of these orders, each of the parties is restrained by injunction from dealing in any way with their interest in Suburb C.
Remaining property of the parties
4.Within 14 days of the date of these orders, the wife make available for the husband’s collection:
(a)the Motor Vehicle 1; and
(b)the Collection 1.
5.Forthwith, the wife retain for her sole use and benefit and free from claim by the husband:
(a)all furniture and chattels presently within Suburb C;
(b)her interest in F Pty Ltd;
(c)the jewellery collection;
(d)her superannuation interests; and
(e)any other personal property in her possession and/or control including any chose in action.
6.Forthwith, the husband retain for his sole use and benefit and free from claim by the wife:
(a)the Motor Vehicle 1;
(b)the Collection 1;
(c)his superannuation interests; and
(d)any other personal property in his possession and/or control including any chose in action.
Debt and indemnities
7.Forthwith, each party will remain solely liable for any debt accumulated via any facility in their sole name including any credit card liability.
8.Forthwith, save for as specifically set out in these orders, the husband indemnify the wife, and keep her indemnified, in respect of any debt associated with or encumbering any property he receives or retains pursuant to the terms of these orders.
9.Forthwith, save for as specifically set out in these orders, the wife indemnify the husband, and keep him indemnified, in respect of any debt associated with or encumbering any property she receives or retains pursuant to the terms of these orders.
10.Forthwith, the husband be solely responsible for paying any further funds remaining outstanding and due to the second respondent noting that the second respondent is owed $271,254.00 and the net proceeds of sale of Suburb C may not be sufficient to repay in full this amount.
Non-periodic child support
11.Forthwith, pursuant to sections 124 and 127 of the Child Support (Assessment) Act 1989 (Cth), the husband pay the wife, by way of non-periodic child support one half (50%) of all out of pocket medical expenses incurred in respect of the child X born in 2020.
12.For the purpose of implementing order 11 herein:
(a)“out of pocket” means all expenses not paid for by Medicare, private health insurance, or funding provided via the National Disability Insurance Scheme (NDIS);
(b)the wife shall pay the costs at first instance and provide to the husband, via his nominated email address all invoices for services claimed and receipts indicating proof of payment within 7 days of her receiving same;
(c)the husband shall reimburse the wife for one half of the costs, via electronic transfer to her nominated bank account, within 7 days of him receiving proof of expenditure and payment as set out in order 12(b) herein; and
(d)the wife shall provide to the husband an updated NDIS plan for the child within 7 days of her receiving any revised plan.
13.Pursuant to section 125 of the Child Support (Assessment) Act 1989 (Cth) the funds paid by the husband pursuant to order 12 herein is not to be credited against any periodic liability assessed against the husband by G Authority from time to time.
14.The wife’s application for lump sum spousal maintenance be and is hereby dismissed.
15.Within 28 days of these orders the second respondent file and serve written submissions in relation to any costs application.
16.Within 14 days thereafter, the husband and the wife file and serve any written submissions in response.
17.Within 7 days thereafter, the second respondent file and serve any written submissions in reply.
Miscellaneous
18.All previous orders be and are hereby discharged.
19.All extant applications be dismissed.
THE COURT NOTES THAT:
A.The husband intends to return the Motor Vehicle 2 to the wife upon his receipt of the Motor Vehicle 1 from the wife.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BOYMAL
INTRODUCTION
The applicant husband and first respondent wife seek an alteration of their property interests pursuant to section 79 of the Family Law Act 1975 (Cth) (the Act). The wife also seeks lump sum spousal maintenance and non-periodic child support. The husband and wife have one child, X, who is three years of age.
The second respondent is the husband’s mother. She seeks repayment of money advanced by her and the husband’s father to the husband and wife for the purpose of assisting them with the purchase of the former matrimonial home at B Street, Suburb C, (Suburb C). The second respondent and the husband assert that the money advanced was by way of a loan. The wife asserts that the money advanced was by way of a gift.
The asset pool is modest. The characterisation of the money advanced by the husband’s parents has a significant impact on the quantum of the net assets to be adjusted between the husband and wife.
For the following reasons orders are made providing for:
(a)Suburb C to be sold;
(b)the second respondent to be repaid the loan;
(c)the husband to pay non-periodic child support; and
(d)the dismissal of the wife’s application for lump sum spousal maintenance.
BACKGROUND
The husband and wife commenced living together on or around mid-2016.
The wife signed a Contract of Sale for the purchase of Suburb C in late 2017. Settlement of the purchase occurred in early 2018. Suburb C was purchased in the wife’s sole name for $1,050,000.00 by way of a mortgage in the sum of $837,000.00 and money provided by the husband’s parents.
Between early 2017 and late 2017, the husband’s parents provided $391,254.00 to the husband and wife in multiple transactions. Only $271,254.00 of that sum was required to complete the purchase of Suburb C. The surplus of $120,000.00 was repaid to two persons who respectively provided $80,000.00 and $40,000.00 to the husband and wife on behalf of the husband’s parents.
The husband and wife married in 2018 in Australia. The wife’s parents paid for the ceremony. The husband’s parents paid for two wedding ceremonies in Country H. One of the ceremonies in Country H occurred in 2018.
X was born in 2020. She has diagnoses of a developmental delay and Autism Spectrum Disorder.
The husband and wife separated on 14 June 2020 when the father left Suburb C after the wife obtained an Intervention Order against him.
On or around early 2019 the husband and wife purchased Motor Vehicle 1 subject to finance. The husband left Motor Vehicle 1 in the possession of the wife when he vacated Suburb C. The husband has in his possession Motor Vehicle 2 that is owned by the wife’s father.
The husband commenced these proceedings on 23 August 2021.
On 9 May 2022 I made orders enabling the wife to obtain legal representation pursuant to the Commonwealth Family Violence and Cross Examination of Parties Scheme (the Scheme). On 20 January 2023 the lawyers appointed to represent the wife filed a Notice of Address for Service.
On 2 March 2023 the second respondent was joined as a party to the proceedings. An order was made by consent that by 6 March 2023, all parties provide to the other parties copies of all bank accounts registered in their respective names and/or to which they are a signatory, for the period between 1 January 2017 and 31 January 2018.
THE PROPOSALS
The husband’s minute was provided to the Court at the commencement of the hearing.[1] The husband seeks in summary that:
[1] Exhibit H1.
(a)Suburb C be sold and that the proceeds of sale be applied:
(i)first, to pay all costs of sale including commission;
(ii)secondly, to discharge the mortgage;
(iii)thirdly, the sum of $271,254.00 to the second respondent; and
(iv)the balance to the wife.
(b)the husband retain the Collection 1 and Motor Vehicle 1 (and be responsible for its liability) and his superannuation interests;
(c)the wife retain the furniture in Suburb C, her interest in F Pty Ltd, the jewellery, and her superannuation interests;
(d)the husband be solely responsible for repaying the second respondent any outstanding amount on the loan to the second respondent if the proceeds of sale are not sufficient to repay the full amount; and
(e)the husband pay non-periodic child support.
The husband resists any order for lump sum spousal maintenance. He is prepared to pay non-periodic child support in addition to assessed child support payments.
The second respondent seeks orders in relation to the repayment of the loan largely in accordance with the orders sought by the husband.[2]
[2] Exhibit R2 6.
The wife’s minute was provided to the Court at the commencement of closing submissions.[3] The wife seeks in summary that:
(a)the wife retain Suburb C and that she be responsible for the mortgage;
(b)the wife pay the husband the sum of $45,901.00 and the husband pay the wife the sum of $30,600.00 (thus $15,301.00 is ultimately to be paid by the wife to the husband);
(c)the husband retain Collection 1, Motor Vehicle 1 (and be responsible for its liability) and his bank accounts;
(d)the wife retain the furniture, the household electrical appliances and her bank accounts;
(e)there be an equalisation of the superannuation interests of the husband and wife;
(f)the husband pay the wife lump sum spousal maintenance in the sum of $25,000.00; and
(g)the husband pay non-periodic child support.
[3] Exhibit W2.
Unsurprisingly, in the circumstances that follow, the orders the wife seeks in her minute in relation to non-periodic child support differ from the orders the husband seeks in his minute. The Court was told on the first day of the hearing that the order sought by the husband only needed clarification from the wife in relation to the definition of “out of pocket expenses”. On the second day of the hearing the Court was told that the wife had agreed to the definition contained in the order proposed by the husband.
The husband’s minute provides for the husband to pay one-half of all out of pocket medical expenses incurred in respect to X. “Out of pocket” expenses is defined as “all expenses not paid for by Medicare, private health insurance, or funding provided via the National Disability Insurance Scheme”.
The wife’s minute seeks that the husband pay one half of all medical costs and expenses, private health insurance, the gap in all medical, dental, optical, orthodontic health expenses, and tuition fees, such as elementary school, middle school and university.
The wife’s minute also differs from the order she sought in her Amended Response. The order she sought in that document is for the husband to pay one-half of all medical costs and expenses, private health insurance, and the gap in all medical dental, optical, orthodontic expenses.
No procedural fairness has been afforded to the husband in relation to tuition fees. No closing submissions relevant to the payment of non-periodic child support were made. The closest (and only) evidence in relation to whether the husband has the capacity to pay was the cross-examination of the husband in relation to his motor vehicle and food costs.
This is the second occasion in which the wife sought to vary her case from what Counsel told the Court. I refer to the first occasion at paragraph 40 herein.
I make no criticism of Counsel. I am confident that the Court was told information based on the instructions that Counsel for the wife had received from the wife on both occasions. It is apparent from my observations of the wife that she would have been a difficult client to represent, and why the wife’s legal representatives provided the Court with the wife’s final minute signed by the wife.
In all of those circumstances, I consider that orders in relation to the payment of non-periodic child support should be made in the terms proposed in the husband’s minute.
THE EVIDENCE
All parties were represented by Counsel. All parties had the assistance of Language H interpreters for the duration of the proceedings. The husband, wife and their legal representatives were all present in the Court. The second respondent observed and gave evidence from Country H via the Microsoft Teams platform. Notwithstanding that there were intermittent periods when the connection between the second respondent and the Court failed, I am satisfied that the second respondent was kept apprised at all times of all of the evidence. It is fortunate that the second respondent’s Counsel is fluent in Language H, as is his instructing solicitor. The husband’s instructing solicitor is also fluent in Language H and a certified translator.
The husband relies upon:
(a)his Amended Initiating Application filed 21 February 2023;
(b)his affidavits filed 21 February 2023 and 7 March 2023;
(c)his Financial Statement filed 21 February 2023;
(d)the affidavit of Ms D (Property Valuer) filed 10 March 2023; and
(e)13 exhibits.
The wife relies upon:
(a)her Amended Response filed 28 February 2023;
(b)her affidavits filed 28 February 2023 and 9 March 2023;
(c)her Financial Statement filed 28 February 2023;
(d)her Financial Questionnaire filed 28 February 2023; and
(e)two exhibits.
The second respondent relies upon:
(a)her Amended Response filed 7 March 2023;
(b)her affidavit filed 7 March 2023; and
(c)six exhibits.
The Court is not required to refer to every piece of evidence relied upon by the parties, traverse every argument that is advanced or make findings in relation to all of the facts that are put in issue by them. I have read all of the documents relied upon and taken all of the evidence and submissions into account. Pursuant to section 140 of the Evidence Act 1995 (Cth) findings are made on the balance of probabilities. My observations of the demeanour of the parties while giving evidence and observing the proceedings have assisted my assessment of the evidence.
The husband
The husband used the assistance of the interpreter on an as required basis when giving his evidence. He gave most of his answers in English and he responded to questions asked in English without the need for translation. The husband was a responsive witness. He was direct in his answers and did not seek to embellish them. All of his oral evidence was consistent with the evidence in his affidavits.
The wife
The wife on the other hand was not an impressive witness. She was evasive in the giving of her answers, embellished her answers and was reluctant to concede issues. She persisted in giving narrative of events and issues that she contended for with a preparedness to change her evidence to suit the questions that she was asked.
Counsel for the wife described the wife’s evidence as “fragmented”.
The wife used the assistance of an interpreter for all of her evidence. The wife justified the inconsistencies in her evidence on the basis that she did not comprehend the questions. However, Counsel for the husband and the second respondent were mindful to keep the manner in which they asked questions at a level that was appropriate when an interpreter is used. I assisted the wife to have a true understanding of the questions asked and repeated back to her the evidence she gave to ensure that the Court had understood her evidence correctly. I am of the view that upon realising that there were inconsistences within her narratives the wife then changed her evidence. It was not that she had misunderstood or misconstrued the questions.
I do not criticise the wife for using the interpreter for all of her evidence. Attending Court and giving evidence is invariably stressful for a party and technical terms and concepts are often used. However, I consider that is disingenuous for the wife to minimise the inconsistencies in her evidence on any language impediment. The wife reads English and she has a level of proficiency in speaking and comprehending English. In 2011 the wife completed a post-graduate degree in Melbourne without the use of an interpreter. All classes were in English. Further, the interpreters assisting the mother in Court throughout the hearing and during her giving of evidence were all certified translators.
The wife’s affidavits contain many assertions that are mistruths and which are otherwise unsupported by the evidence. Having regard to the concessions the wife ultimately and reluctantly had to make and her prevarication until she made those concessions, I consider that the wife could not have misunderstood the facts when she attested her affidavits nor was she of the view that her assertions could be proven.
The wife asserted that the $80,000.00 bank cheque in late 2017 to Mr J was for payment toward the purchase of Suburb C from funds of her parents held by her in her account.[4] I do not accept that the wife was genuinely of the view when she attested her affidavit or gave her evidence that Mr J was a person to whom money had to be paid to complete the purchase of Suburb C.
[4] Wife’s affidavit filed 28 February 2023 at [11].
It was also disingenuous for the wife to have maintained her position in her oral evidence that the husband’s parents only provided $200,000.00 toward the purchase of Suburb C and that her parents provided the balance. The second respondent’s affidavit is detailed. The payments made by her and her husband are set out with specificity at paragraph 11 of her affidavit and supported by the documents in her annexures that had previously been provided to the wife by way of disclosure.
Counsel for the wife told the Court on the first day of the final hearing that it was agreed that the husband’s parents had provided $271,254.00 to the husband and wife and that $120,000.00 had been repaid. Thus, the wife’s recanting from that concession during her oral evidence was the first occasion she sought to vary her case from what was told to the Court. Ultimately and reluctantly, the wife conceded that $271,254.00 was provided by the husband’s parents for the purchase of Suburb C.
The wife says that important and significant facts failed to be included in her affidavits because she was a self-represented litigant. However:
(a)the solicitor who represented her pursuant to the Scheme had been on the record for over two months prior to the wife attesting the affidavits upon which she seeks to rely;
(b)the wife received advice from one firm of lawyers on at least five occasions between mid-2020 and late 2021; and
(c)the wife attended upon a second firm of lawyers. The wife asserts that her attendance on this firm was for a different purpose than for these proceedings.
I am satisfied that the wife received legal advice in relation to the issues in dispute in these proceedings at the very latest at the time she consulted her present solicitor. The wife told the Court she knew at that time that she had to provide evidence to the Court of her assets at the time of the relationship/marriage.
I am also comfortably satisfied that the wife fabricated, at minimum, the following oral evidence.
First, that she had $100,000.00 in savings at the commencement of the relationship.
The wife told the Court that she had $100,000.00 in savings at the commencement of the relationship. Nowhere in either of her affidavits is there a mention of her having any pre-relationship savings. On 2 March 2023 I told the parties that I would be concerned that if by the time of the final hearing fulsome disclosure had not occurred. The wife was represented on this date. No disclosure of any evidence supporting her contention that she had $100,000.00 was provided to the husband prior to the hearing. The wife provided no evidence during the hearing to support her contention.
Secondly, that the husband and wife were told that the money provided by the husband’s parents was a gift to both of them.
The wife deposes at paragraph 14 of her affidavit filed on 9 March 2023 which is her reply affidavit to the very detailed and particularised affidavit filed by the second respondent as follows:
The applicant’s parents did give us some money as a gift to buy the house, but it is not a loan. The gift was to both the husband and I.
The wife in her oral evidence led the Court to believe that on a day prior to the purchase of Suburb C that the husband, the wife, the husband’s mother, and possibly the husband’s father were physically present in the husband and wife’s rental property in Suburb K, Australia. She asserted that at that meeting the husband and wife were told that the money advanced by the husband’s parents was a gift to both of them.
When the wife realised that the second respondent may not have been physically present in Australia at that time, the wife provided variations to that evidence. She recounted that the communication that the money was a gift occurred between the husband’s mother in Country H and the husband and wife in Australia first via video conferencing, then either by telephone or Messenger. The wife’s evidence was not convincing.
Nowhere in either of her affidavits is there any mention of such a conversation let alone any specifics. It was obvious that it was the first time the husband, or anyone else in the Court, had heard of that contention when the wife gave her evidence. When the husband was recalled to give evidence on this point he denied that any communication that the money advanced was as a gift had occurred. The second respondent also denied that any such conversation took place. The husband remained steadfast in his evidence when cross-examined by Counsel for the wife. Counsel for the wife did not cross-examine the second respondent on any such conversation taking place at any time.
Having regard to the timing and manner in which the wife made the assertion of such a conversation and her evidence generally, I accept the evidence of the husband and the second respondent that no such conversation expressing that the money advanced by the husband’s parents was a gift ever took place.
The husband corroborated his assertions of which findings central to the determination of this matter are required to be made by independent objective evidence in the form of documents. The wife’s assertions were not so corroborated. Thus, where there is an absence of independent objective evidence to corroborate a fact in issue between the husband and the wife I prefer the evidence of the husband. Counsel for the husband also urged that I do so.
The second respondent
The second respondent is 58 years of age, a retired public servant and lives in Country H. She gave all of her evidence and observed the proceedings via the Microsoft Teams platform and with the assistance of an interpreter. The second respondent’s command of the English language is limited. However, notwithstanding her continuous use of the interpreter, she was responsive, spontaneous and direct when giving her oral evidence which was all consistent with the evidence in her affidavit.
The wife was unemployed when she completed the loan application for the purchase of Suburb C. She recorded on the loan application that she was employed. The wife told the Court that her former employers falsified wage slips at her request to support her loan application.
Counsel for the wife sought to draw a parallel between the wife’s mistruths in her application for the mortgage with the second respondent defining the deposit of $55,985.00 into the husband’s bank account in late 2017 toward the purchase of Suburb C as “TUITION”. I place weight on Counsel for the husband’s submission that “the fact that parties are under an obligation to provide truthful information about circumstances is relevant to [the wife’s] presentation in the witness box…There is no obligation, by contrast, to put a reference word on a bank statement”.[5]
[5] Transcript of 16 March 2023 at page 14.
I am of the view that there is a marked difference between an applicant telling mistruths on a loan application in order to “obtain a financial advantage by deception” and a payer describing a payment on bank statements of the recipient and payer.
I also prefer the evidence of the second respondent where it conflicts with the evidence of the wife for the same reason why I prefer the evidence of the husband than that of the wife.
PROPERTY
Prior to making any order the Court must first be satisfied that in all of the circumstances it is just and equitable to make an order altering the property of the husband and wife. When considering whether it is just and equitable to make an order the Court must identify the existing legal and equitable interests of the parties in the property.[6]
[6] Stanford & Stanford (2012) 247 CLR 108.
If the Court is satisfied, the preferred approach when determining what orders should be made is for the Court to:
(a)identify and attribute value to the existing legal and equitable interests of the husband and wife at the time of the hearing (the asset pool);
(b)assess the contributions made by the husband and wife financially and non-financially to the property, directly or indirectly to the acquisition, conservation and improvement of the property and to the welfare of the family including in the capacity of homemaker and parent in accordance with section 79(4)(a)-(c) of the Act;
(c)consider whether there should be any further adjustment having regard to the matters contained in section 79(4)(d)-(g) of the Act which includes any relevant factors in section 75(2) of the Act; and
(d)undertake an assessment whether the proposed adjustment provides justice and equity to the husband and wife.[7]
[7] Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143.
THE ASSET POOL
I have determined that the following assets and liabilities are available for adjustment between the husband and wife. Both parties adopted an approach whereby the superannuation interests comprised a separate pool than that of the non-superannuation assets. I likewise adopt that approach.
Counsel for the husband contended that Collection 1 should be considered in a separate non-superannuation pool from the other non-superannuation assets on the basis that the Court can be satisfied that the wife did not make any contributions in any form at any time to Collection 1. For the reasons set out in paragraph 94 herein, I am satisfied that the wife did not make any contributions to Collection 1 save for one item.
It is in the Court’s discretion depending on the circumstances of the case whether a global or asset by asset approach is adopted. There are difficulties associated with the Court adopting either approach. In G & G [1984] FamCA 60 Nygh J observed that when adopting a global approach the Court must still consider the origin and nature of the different assets, and, when adopting an asset by asset approach the Court must ensure to “not mistake the trees for the forest”.
I have used a one-pool approach for all of the non-superannuation property interests of the husband and wife. I consider that a one-pool approach conveniently provides a better framework for the very small pool available for adjustment and for the manner in which the assets should be adjusted. I will give proper recognition to the husband’s notable contribution to the quantum of the net asset pool because of the existence of Collection 1 and how it was acquired.
ASSETS
Ownership
Value
B Street, Suburb C
Wife
$1,100,000.00
Motor Vehicle 1
Husband
$36,000.00
Collection 1
Husband
$18,000.00
Household Furniture
Wife
$10,000.00
TOTAL NON-SUPERANNUATION ASSETS
$1,164,000.00
LIABILITIES
Mortgage
Wife
$794,971.00
Motor Vehicle 1 liability – L Company
Husband
$18,600.00
Debt to Mr M and Ms Heng (the husband’s parents)
Husband
$271,254.00
TOTAL LIABILITIES
$1,084,825.00
NET NON-SUPERANNUATION ASSETS
$79,175.00
SUPERANNUATION
Super Fund 1
Husband
$25,135.00
Super Fund 2
Wife
$7,349.00
TOTAL SUPERANNUATION
$32,484.00
TOTAL NET ASSETS
$111,659.00
Suburb C has an agreed value as per the jointly obtained valuation dated March 2023 annexed to the affidavit of Ms D. The Collection 1 has an agreed value as per the jointly obtained valuation dated March 2022 by N Company.[8] The value of Motor Vehicle 1 and the quantum of its associated liability are agreed between the husband and wife. Superannuation entitlements are agreed.
[8] Exhibit H4.
Furniture
The furniture in Suburb C is excluded from any balance sheet referred to in the wife’s material. The wife asserts that the furniture is all second hand furniture purchased in Country H for approximately $10,000.00 and paid for by her father for a lesser price than it would have otherwise been able to be purchased in Australia. She further asserts that her father paid around $4,000.00 for the shipping of the furniture to Australia.
The husband says that his parents paid for all of the furniture. He further says that the wife’s father only arranged the shipping but that his parents paid for the shipping. The husband provides an estimate of $10,000.00 for the value of the furniture. The wife says that the furniture has a value of less than $10,000.00 as it is all second hand and would have depreciated in value since it was first purchased.
The wife says that as the husband has failed to provide any invoices, that the Court should accept her assertions. I note that the wife has also failed to provide any documentary evidence to support her assertions. Having regard to the manner in which the wife gave the totality of her evidence, I accept the husband’s assertions that his parents paid for the furniture and shipping.
The wife agrees that the furniture has some value. Taking into account the discounted cost of the purchase of the furniture in Country H compared to the cost of the furniture being purchased in Australia, I am satisfied that the furniture has a value of at least $10,000.00.
I include the furniture in the non-superannuation pool at $10,000.00.
Loan or gift
The husband and second respondent assert that the sum of $271,254.00 was advanced as a loan to the husband and wife. The wife asserts it was a gift.
I have already made a finding that no conversation took place between the parties wherein the second respondent told the husband and wife that the money advanced was a gift to both of them.
The husband asserts that in 2017 he told the wife that his parents were willing to provide a loan to assist them with purchasing a home. He further asserts that the wife was fully aware of the sum advanced by his parents and that the money advanced was a loan.
There is an IOU between the husband and his mother dated 2018.[9] The IOU reads as follows:
Dear [Mr M] and [Ms Heng]: borrowed 1,500,000 (one Million and Five Hundred Thousand) to buy a house in Melbourne for marriage. I will pay off within 10 years (before 2028).
Borrower: [Mr Jun]
2018
[9] Annexure “H - 11” of the second respondent’s affidavit filed 7 March 2023.
It is not in dispute that 1,500,000.00 represents AUD $271,254.00 for the purpose of these reasons and to quantify the amount advanced.
The second respondent deposes that when the husband and wife were in Country H in 2018 and staying in her home, she requested that the husband formalise the loan agreement between them and that in 2018, after the wedding ceremony, the husband signed the IOU in her presence.
The husband deposes that he signed an IOU in 2018 in the presence of his mother. He told the Court that after returning to his parents’ residence in Country H after the wedding ceremony in 2018 that the IOU was drafted and signed in the presence of his mother while the wife was having a shower. The husband says that he did not discuss the signing of the IOU with the wife.
The wife asserts that she was “completely unaware” of the money advanced being a loan. She further asserts that she did not know of the existence of the IOU until late 2021, being the first return date in this matter. The husband agrees that the wife did not see the IOU until late 2021.
The wife alleges that the IOU was prepared sometime in 2021 in order to minimise her property entitlement.
Supporting the credibility of the husband is that his evidence on this issue remained steadfast. It is plain that it would have been advantageous to the husband and the second respondent’s case if the husband had said, suggested or inferred that the circumstances of the signing of the IOU and the wife’s knowledge of its existence was otherwise. He at no stage deviated from his original evidence. Nor did the second respondent.
Having regard to the totality of the wife’s affidavit and oral evidence I do not accept the assertions made by the wife on the issue of the loan and the IOU. I am satisfied that the wife knew that the money advanced by the husband’s parents was by way of a loan and that the husband signed the IOU in 2018 at the request of and in the presence of the second respondent.
Drawing from Biltoft and Biltoft (1995) FLC 92-614 as referred to by Counsel for the husband and Counsel for the second respondent, I note the following:
(a)the second respondent told the Court that if not for these proceedings she would be enforcing the loan. No challenge was made to her evidence that she requires repayment of the loan and that she would take action to seek repayment;
(b)the second respondent was more than a witness on behalf of the husband in these proceedings. She was proactive in ensuring that the loan would be repaid by applying to be joined as a party in these proceedings;
(c)the terms of the loan are not vague or uncertain. The IOU records the parties involved, the quantum, the purpose of the loan and the date by which all of the loan is required to be repaid;
(d)the loan was not incurred with a reckless or deliberate disregard of the wife’s potential entitlement pursuant section 79 of the Act. The money was advanced between three and four years prior to the date of separation and prior to marriage; and
(e)the loan was not unreasonably incurred.
Having regard to the above paragraph, I include the unsecured loan of $271,254.00 as a liability in the assets and liabilities to be adjusted between the husband and wife.
Sundry other property
The wife included sundry other assets in her minute that were not previously mentioned by the wife namely, electrical appliances, bank accounts and wedding bands. I take the approach as suggested by Counsel for the husband that the Court should note that the items are in the possession of the wife and she will retain them. Likewise, I note that the husband will retain his bank account as noted in the wife’s minute but otherwise not previously included.
SHOULD PROPERTY ORDERS BE MADE
Both the husband and wife seek an adjustment of their property interests. They seek different orders. They have separated after being in a relationship during which they made a myriad of contributions and had one child. They no longer have the common use of their property. The current legal interests of the husband and wife are therefore required to be adjusted.
I consider that this is one of the many cases referred to in Stanford v Stanford [2012] 247 CLR 108 at [42] in which the requirements of section 79(2) of the Act are readily satisfied.
I am satisfied that it is just and equitable to make orders altering the property of the husband and wife.
CONTRIBUTIONS
The authorities establish that an assessment of contributions does not require “over-zealous” attention.[10] It is not a mathematical or accounting exercise but rather the exercise of a wide discretion. The assessment involves the identification and assessment of all of the respective contributions of the husband and wife of all kinds and from all sources in a holistic way across the course of the relationship and in the post separation period to the point of assessment.
[10] Horrigan & Horrigan [2020] FamCAFC 25.
The weight to be attached to initial contributions must be assessed against all of the financial and non-financial contributions that are made.[11] Regard must also be had to the use made by the husband and wife of that contribution and the length of the relationship when assessing the weight to be attached to initial contributions.
[11] Jabour & Jabour [2019] FamCAFC 78.
Contributions are not required to be attached or directly referable to any arbitrary timeframes or any specific item of property. However, the use of timeframes assists in giving coherence to the nature, form and extent of the respective contributions of the husband and wife.[12]
[12] Dickons & Dickons [2012] FamCAFC 154 at [24] – [26].
Initial Contributions
The husband asserts that the husband and wife had little in the way of assets and that he had his Collection 1.
The wife asserts that she had $100,000.00 in savings and that during the relationship she contributed financially to the purchase of Collection 1.
For the reasons set out in paragraph 45 of these reasons I am satisfied that that the wife did not have $100,000.00 in savings.
I am satisfied that at the commencement of the relationship the husband had the whole of Collection 1 save for item 64 in the inventory.[13] The inventory, compiled by the husband from invoices and receipts for the purchase of the items, discloses that all but one of the items in the collection (item 64) were purchased between 2010 and 2016, that is before the commencement of the relationship.[14] The inventory provides the purchase dates of all of the items valued in the report of N Company. The Collection 1 has a value of $18,000.00. The inventory also includes purchase dates and prices of items not included in the valuation report. However, the value of the non-valued items does not derogate from the fact that the husband purchased all of the items prior to mid-2016 save for item 64 which he purchased in late 2016.
[13] Exhibit H6.
[14] Ibid.
Similarly to the wife’s oral evidence in relation to the quantum of money provided by the husband’s parents, the wife remained steadfast in her assertion that she had financially contributed to Collection 1 notwithstanding that disclosure had been provided by the husband to the wife of all of the invoices and receipts from which the inventory was compiled.
Accordingly, I find that at the commencement of the relationship the husband and wife, other than Collection 1, had nominal assets.
I note that the value of Collection 1 represents 22.7 per cent of the net non-superannuation pool and 16 per cent of the total net asset pool.
Contributions during the relationship
The husband earnt income until mid-2018 from working part time as a factory worker and part time at O Company. Thereafter he derived his income from his full time employment as a professional.
The wife is plainly incorrect when she asserts that until the husband obtained his employment as a professional that he had no income.
The wife continued working in her full time position in a company until she resigned in 2017.
The wife commenced a retail business, F Pty Ltd with two other people in 2017. The business ceased operating in mid-2021.
The husband’s parents paid for the furniture and shipping costs. Consistent with the authorities, this contribution by the husband’s parents is a contribution made on behalf of the husband. I note that the value of the furniture represents 12.6 per cent of the net non-superannuation pool and 8.95 per cent of the total net pool.
The husband’s parents lent the husband and wife the sum of $271,254.00 to assist in the purchase of Suburb C. There is no evidence to support that the husband and wife would have been in a position to purchase Suburb C if it were not for the loan provided by the husband’s parents. I do not consider that I am double counting the loan to the second respondent as a liability and also making an adjustment in favour of the husband on a contributions basis. I emphasise that the inclusion of the equity in Suburb C in the asset pool comes about solely because of the husband’s relationship with his parents and their generosity.
The husband denies the wife’s assertion that her parents provided them with financial support in 2018 and 2019. The wife has failed to provide corroborative evidence of her assertion. On the one hand she makes this assertion but on the other she asserts that the transfers from her parents into her bank account were for the purpose of currency exchanges on behalf of her parents.
X was born in 2020. The wife made greater contributions in the role of homemaker and parent; the husband was in paid employment, the wife was not.
I am satisfied that the husband and wife contributed to the best of their ability both financially and in the roles they respectively undertook during the relationship. I agree with Counsel for the wife’s submission that they had a commitment to a joint relationship and their contributions in various forms were all toward the furtherance of that commitment.
Post separation contributions
Between the date of separation and 20 November 2020 the husband paid half of the mortgage payments on Suburb C. Thereafter the husband commenced paying child support. He paid for other utilities in relation to Suburb C until April 2021. The husband continues to pay the loan repayments on Motor Vehicle 1.
The wife has paid all of the mortgage repayments since November 2020 and the utilities since April 2021.
The wife has been the only parent contributing in the role as homemaker and parent to X. The husband has spent no time with X since separation and has had no communication with her since 20 November 2020. His efforts to spend time or communicate with X since then have been unsuccessful.
The fact that X spends no time or has any communication with the father is a sensitive and emotional issue for the husband and the second respondent. Both of them displayed visible signs of sadness when this issue was canvassed in Court. The husband says that the wife is not supportive of X spending time with him. The husband is hopeful that when these proceedings finalise that the animosity may die down and that the wife may be more inclined to facilitate a relationship between X and him.
Evaluation of contributions
I have noted that Collection 1 represents 22.7 per cent and the furniture represents 12.6 per cent of the net non-superannuation pool. The equity in Suburb C of $33,775.00, which takes into account the mortgage and the loan, represents 42.6 per cent of the net non-superannuation pool. These three assets arise because of the financial contributions made by the husband or on his behalf. The husband during the marriage contributed in the role as homemaker and parent. He worked and applied his income to the benefit of the household.
The wife has made the majority of the non-financial contributions. She undertook homemaking and parenting responsibilities for X during the marriage and post separation has undertaken those roles to the exclusion of the husband. The wife made financial contributions during the relationship and post separation.
Holistically and collectively assessing the myriad of contributions made by the husband and wife, which includes the significant financial contributions made by the husband, I find on balance that the husband made superior contributions to those of the wife.
RELEVANT FACTORS PURSUANT TO SECTIONS 79(4)(D)–(G) AND 75(2)
The husband is 32 years of age and lives in rental accommodation. He does not cohabit with any other person. He is employed as a professional and earns approximately $105,000.00 per annum.
The husband receives a vehicle allowance of $192.00 per week. As noted earlier, the husband was asked questions in relation to his motor vehicle expenses. It was put to the husband that he has a weekly surplus of $47.00 per week between his allowance ($192.00) and petrol and car maintenance ($145.00). However, in addition to those costs the husband pays, and will continue to pay, the Motor Vehicle 1 car loan in the sum of $132.00 per week, and car insurance. Upon Motor Vehicle 2 being returned to the wife, the husband will have registration and servicing expenses of Motor Vehicle 1. Thus, the husband has no weekly surplus.
The husband was challenged on his expense of $300.00 per week for food. Other than a comparison to what the wife spent weekly on food there was no evidence extracted from the husband to support that his weekly expense on food is excessive or not necessary.
The husband has the physical and mental capacity to engage in appropriate gainful employment. Neither the length of the relationship nor the proposed orders have an impact on his earning capacity. His employer makes all of his superannuation contributions.
The husband pays child support to the wife pursuant to a Child Support Assessment in the sum of $150.00 per week. There are no arrears outstanding.[15] The husband offers to pay non-periodic child support to the wife in addition to the Child Support Assessment in the terms set out in paragraph 20 herein.
[15] Annexure -9 of the wife’s affidavit filed 28 February 2023.
The wife is 34 years of age. She lives in Suburb C with X. No other person cohabits with them. The wife and X need a home in which to live. As submitted by Counsel for the husband, it is not necessary that the wife’s home be the size of Suburb C, which is a sizeable family residence.
Counsel for the wife submits that the wife does not have a present earning capacity as her time is completely taken up with the care of a very young child and the child’s needs. Her earning capacity cannot be realised for some time.
The wife is in receipt of government benefits in the sum of $586.00 per week and Child Support of $150.00 per week. The wife estimates the medical, dental, optical, chemist and pharmaceutical expenses of X at $5.00 per week.[16] The husband will now be paying half of the “out of pocket expenses”. The quantum of the payment of such costs by the wife will now be halved. The wife will be responsible for financially supporting X for expenses exceeding the total of the Child Support Assessment and the non-periodic payments by the husband.
[16] Wife’s Financial Statement filed 28 February 2023.
The wife has a superannuation interest.
I agree with Counsel for the husband’s submission that the wife’s resources are unascertainable and unknown. There are unexplained deposits and withdrawals into and from the wife’s bank accounts of large sums of money apart from the money provided by the husband’s parents. The wife asserts that the transactions “may” form part of the process of currency exchange for her parents. At other times, she asserted she did not know for what purpose the money was withdrawn or spent. Her evidence on this issue was not satisfactory.
There is uncertainty in relation to whether the wife has a rental property from which she derives income. The mortgage application for Suburb C discloses rental received by her in the sum of $27,000.00. She also received a land tax account.
I am unable to make a finding as to the purpose or the source of funds with which the wife purchased $4,450.00 of designer items or $1,500.00 of designer clothing. The wife has not disclosed nor did she provide evidence during the hearing that third persons funded the purchases or that she sent the purchases to Country H.
I consider that on the available evidence I am unable to find that the wife personally has access to financial resources, as inferred by Counsel for the husband, other than money already being provided to her by her parents.
Neither the proposed orders nor the length of the relationship have an impact on the wife’s earning capacity. The wife however deposes to attending upon a psychiatrist for mixed anxiety and depression. X who has challenges lives full time with the wife. The wife wishes to continue her role as a parent and attend to X’s special needs. The husband does not suggest that she do otherwise.
Evaluation of future considerations
The balance of future considerations favour the wife. Until, and if, X spends time with the husband, the wife will have the sole care of X including making herself available to ensure that X attends all of her specialist appointments. The wife’s income is limited until she re-engages in paid employment. It is uncertain when she will do so given X’s young age and the challenges facing X. Until the wife re-enters the work force her superannuation interests will not be enhanced.
JUSTICE AND EQUITY TO THE PARTIES
The overarching responsibility of the Court in matters requiring an adjustment of property is to ensure a just and equitable result between the parties. The requirement for justice and equity permeates the entire process when determining what property orders should be made.[17]
[17] Bevan & Bevan [2013] FamCAFC 116.
In Dickons & Dickons [2012] FamCAFC 154 the Full Court observed that it is not only the task of assessing contributions that is holistic, but that all of section 79 of the Act requires a holistic analysis. At [24] their Honours said:
However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2).
Having regard to the particular circumstances of this particular relationship, I take an overall holistic approach.
I have not placed percentages on my assessments of contributions and future considerations. There is no requirement on the Court to do so. However, mainly for the benefit of the wife in order for her to appreciate fully the bases of my determination, I have already referred and will continue to refer to percentage calculations.
The sale price of Suburb C is unknown. The quantum of sale costs is speculative but estimated at $34,500.00 by the husband.[18] There is a possibility that the proceeds of sale will not be sufficient to repay the whole of the loan to the husband’s parents and/or pay the wife any funds. In that sense, percentage calculations are moot. In any event, it is the actual value of the property that each party is to receive, and not the percentage that is important.
[18] Husband’s affidavit filed 21 February 2023 at [39].
Lest it be forgotten, the husband’s proposal also includes that if there are insufficient funds from the proceeds of sale of Suburb C to repay the entire loan to the second respondent then the husband will be solely responsible for repaying any outstanding amount.
The actual net total of the non-superannuation asset pool and the percentage calculations attributed to the husband and wife will change depending on the price at which Suburb C sells and the quantum of sale costs.
The wife wishes to retain Suburb C. I have found that the money advanced by the husband’s parents is a loan and is to be repaid. The wife must source $271,254.00 to repay the loan in order for her to retain Suburb C. The wife proposes that she repay the sum of $271,254.00 to the husband over five years at a rate of $4,520.00 per month, that is, $54,250.00 per annum.
The wife’s income including child support totals $736.00 per week, that is, $38,272.00 per annum.
Accepting the wife’s weekly expenses in her Financial Statement, the wife’s weekly expense including the mortgage is $1,430.00 per week, that is, $74,360.00 per annum. She is already relying on resources, her parents, to subsidise $36,088.00 per annum ($74,360.00 being her expenses minus $38,272.00 being her income). In order to repay the loan, the wife must source a total of $90,338.00 per annum ($36,088.00 plus $54,250.00) over and above her income to meet the mortgage, repayment of the loan, and her and X’s living expenses. She must source that sum for five years, subject to there being a change in her income.
I am satisfied that the wife does not have the capacity to repay the loan to the second respondent even within a period of five years in addition to servicing the mortgage. The wife has no borrowing capacity to obtain a further mortgage from an independent third party institution (unless the wife and/or others she may enlist, again fabricate the information on the loan application).
Whatever the financial resources the wife may have, the wife made no proposal of any quantum of a lump sum to repay the husband’s parents to, at least, significantly reduce the quantum of the loan before periodic repayments are made. She told the Court that she could not even afford to buy new furniture.
The wife said that she would borrow from friends and her family to make the mortgage payments. None of her friends have provided affidavits. The wife further said that she believed her parents would do everything in their power to borrow the sum required to repay the loan to the husband’s parents but that it would take time for them to get the money.
The wife’s parents have subsidised the repayment of the mortgage and the wife’s living expenses to date. However, the wife had not discussed the figures of either $200,000.00 or $271,254.00 with her parents in the context of them providing either of those sums in order to repay the second respondent. The wife said that her parents could not borrow those sums in one amount. The wife provided no evidence to support that her parents could subsidise her an additional $54,250.00 per annum, even if it was paid in monthly instalments. Her parents are not on affidavit. The wife’s evidence as to her ability to secure a further $54,250.00 per annum to repay the second respondent is vague and uncertain.
The wife has failed to prove on the balance of probabilities that she will be able to secure funds to repay the loan in addition to continuing to pay the mortgage and her and X’s living expenses.
Accordingly, orders are set out providing for the sale of Suburb C and that the second respondent be repaid the loan from its proceeds of sale.
The total of superannuation and the non-superannuation asset pool is $111,659.00. The asset pool is small. The assessment of contributions weigh in favour of the husband. The future considerations weigh in favour of the wife.
Orders are made in the terms of the husband’s proposal.
The husband will retain net non-superannuation property to the value of $35,400.00 being his Collection 1 ($18,000.00) and Motor Vehicle 1 (net $17,400.00). The wife also proposes that he retains these items. This equates to 44.7 per cent of the net non-superannuation pool of $79,175.00. The husband will no longer need the Motor Vehicle 2 and proposes to return it to the wife.
The wife will retain the furniture and electrical appliances ($10,000.00). She will also retain the balance of the proceeds of sale of Suburb C after payment of costs, the mortgage and the loan. On current figures the net equity of Suburb C is $33,775.00. If the wife receives that sum she will retain $43,775.00 which represents 55.3 per cent of the net non-superannuation pool.
There is a differential of $8,375.00 between the husband and wife in the wife’s favour of the net non- superannuation assets.
If the proceeds of sale of Suburb C do not realise any amount able to be distributed to the wife, then the actual quantum of the net non-superannuation property available for adjustment reduces to $45,400.00 ($79,175.00 minus $33,775.00). In that circumstance, having regard to what the husband retains of $35,400.00 he will retain 78 per cent of the net non-superannuation property and having regard to what the wife retains ($10,000.00) she will retain 22 per cent of the net non-superannuation property and the sundry property already in her possession. She may have the use of Motor Vehicle 2. There is thus a differential of $25,400.00 between the husband and wife in the husband’s favour in relation to the non-superannuation pool.
I also note that the value of Suburb C as at early 2022 was $1,150,000.00.[19] In late 2020 the husband proposed that Suburb C be sold.[20] The wife rejected that proposal. Given the decrease in the value of Suburb C between the date of the valuations, if Suburb C had been sold at the time of the husband’s proposal there was a possibility to avoid an outcome of the wife receiving nil from the proceeds of sale.
[19] Annexure “D- 1” of the affidavit of Ms D filed 10 March 2023.
[20] Exhibit H11.
Counsel for the wife advanced no proposals in the event the wife would receive less than $33,775.00, or nil, from the proceeds of sale of Suburb C. Procedural fairness has not been afforded to the trustees of the husband’s superannuation fund. Counsel for the wife did not provide the Court with any way forward on this issue and conceded that as no procedural fairness had been afforded then that was the end of the matter.
The husband will retain more than the wife in superannuation interests. However, the superannuation interests of the husband and wife are modest. The husband’s superannuation cannot now or in the short or mid- term assist him with a lump sum or income. I consider that a dollar of his superannuation interest is of a lesser value than a dollar value attributable to the non-superannuation assets being retained by the husband and wife.
Given the size of the asset pool and my assessment of contributions and future consideration in all of the above circumstances I am satisfied that the orders set out provides justice and equity to the husband and wife whatever the sum, if any, the wife receives from the sale of Suburb C. The most that the differential between the husband and wife in relation to the non-superannuation property will be is $25,400.00.
LUMP SUM SPOUSAL MAINTENANCE
The wife seeks a lump sum payment of spousal maintenance in the sum of $25,000.00. There is no timeframe specified in which the husband is required to pay.
Counsel for the husband referred the Court to Dawson & Dawson [2012] FamCAFC 22 and drew from the principles referred by Strickland J therein to support the contention that no order for lump sum spousal maintenance should be made.
I accept that the wife has a need.
Counsel for the wife made no submissions in relation to lump sum spousal maintenance. I have no benchmark from which to assess the payment or quantum of lump sum spousal maintenance.
The wife does not seek periodic maintenance. No submissions were made as to whether the lump sum reflected a capitalisation of periodic maintenance. No submissions were made in relation to whether the lump sum sought was made up of specific amounts for the purchase of items and for “the future vicissitudes of life”,[21] thus obviating a capitalisation of spousal maintenance analysis.
[21] Dawson & Dawson [2012] FamCAFC 22 at [106].
Irrespective of the above, it is plain from the property adjustment outcome that the husband has no capital sum from which to make a payment of a lump sum of $25,000.00 to the wife for spousal maintenance.
Accordingly, the wife’s application for lump sum spousal maintenance is not successful.
COSTS
The second respondent anticipated making a costs application depending on the outcome of these proceedings.
Orders are set out for the filing and serving of written submissions in the event that the second respondent wishes to pursue such an application.
I certify that the preceding one hundred and sixty two (162) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Boymal. Associate:
Dated: 6 April 2023
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