Jung & Meyer
[2024] FedCFamC1F 433
•26 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jung & Meyer [2024] FedCFamC1F 433
File number(s): MLC 4616 of 2021 Judgment of: JOHNS J Date of judgment: 26 June 2024 Catchwords: FAMILY LAW – PROPERTY – application for final property orders – where the parties had a long marriage – where the parties jointly established a successful business during the marriage – where the husband has property interests in Australia and Country D – where the husband alleges his Country D property is inherited – where the wife has had primary care of the children since separation – where the husband has not provided full and frank disclosure – where the husband proposes a two-pools approach, effectively quarantining the Country D interests – where the wife proposes a holistic approach – assessment of contributions during cohabitation – assessment of post-separation contributions – consideration of s 75(2) factors Legislation: Evidence Act 1995 (Cth) s 140(2)
Family Law Act 1975 (Cth) ss 75(2), 79
Federal Circuit and Family Court of Australia Rules 2021, Chapter 6
Cases cited: Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545;
Bonnici v Bonnici (1992) FLC 92-272;
Chang & Su [2002] FamCA 156;
Chapman & Chapman [2014] FamCAFC 91;
Dickons v Dickons (2012) 50 Fam LR 244;
Oriolo and Oriolo (1985) FLC 91-653;
R v Watson; Ex parte Armstrong (1976) 136 CLR 248;
Singerson & Joans [2014] FamCAFC 238;
Stanford & Stanford (2012) 247 CLR 108;
Stone & Stone [2015] FamCAFC 18;
Weir and Weir (1993) FLC 92-338;
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance Number of paragraphs: 184 Date of last submission/s: 11 August 2023 Date of hearing: 9 – 11 August 2023 Place: Melbourne Counsel for the Applicant: Mr Sweeney Solicitor for the Applicant: Lander & Rogers Counsel for the Respondent: Ms Swart Solicitor for the Respondent: Swifty Legal ORDERS
MLC 4616 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS JUNG
Applicant
AND: MR MEYER
Respondent
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
26 JUNE 2024
THE COURT ORDERS THAT:
Definitions
1.For the purposes of these orders:
(a)The "Suburb F Property" means the real property situate at and known as E Street, Suburb F in the state of Victoria more particularly described as Certificate of Title Volume … Folio …;
(b)The "Suburb H Property" means the real property situate at and known as G Street, Suburb H in the state of Victoria more particularly described as Certificate of Title Volume … Folio …;
(c)The "Suburb K Property" means the real property situate at and known as J Street, Suburb K in the state of Victoria more particularly described as Certificate of Title Volume … Folio …;
(d)The "City M Property" means the real property situate at and known as L Street, City M, Country D;
(e)The "Commercial Property" means the real property situate at and known as NN Street, Suburb OO, City M, Country D;
(f)The "Corporate Entities and Trusts" means:
(i)N Pty Ltd ATF Jung Meyer Family Trust;
(ii)N Pty Ltd ATF O Property Trust;
(iii)N Pty Ltd ATF Jung Unit Trust;
(iv)P Pty Ltd ATF O Property Trust;
(v)Q Pty Ltd;
(vi)O Super Pty Ltd ATF Superannuation Fund 1;
2.That all previous orders including order 5 of the orders made by this Court on 20 August 2021 be and are hereby discharged.
Suburb F Property
3.The parties and each of them do all acts and things and sign all necessary documents to distribute equally to each of them the capital gain obtained by the O Property Trust arising from the sale of the Suburb F property.
4.That the Husband and the Wife forthwith irrevocably authorise and direct S Accountants, ("the Accountants") at their joint and equal expense, to prepare the taxation returns for the O Property Trust and, each of them personally, for the financial year ended 30 June 2023.
5.The parties forthwith authorise and direct Lander & Rogers to release the remaining proceeds of sale of the Suburb F Property, being $960,998.07 plus accrued interest thereon, to be distributed as follows:
(a)Firstly, to pay to the wife the sum of $693,118;
(b)Secondly, to pay to the husband the sum of $267,880;
(c)Thirdly, as to the interest accrued thereon:-
(i)56 per cent to the wife; and
(ii)44 per cent to the husband.
Corporate Entities and Trusts
6.The Wife be permitted to operate and make all decisions in relation to the day-to-day operation of the business trading as 'R Company' (conducted via N Pty Ltd ATF the Jung Meyer Family Trust) ("R Company"), to the exclusion of the Husband.
7.That within 60 days of the date of these orders, the Husband do all such acts and things and sign all documents necessary to:
(a)Tender his resignation as an appointor, guardian, or substitute appointor of each of the trusts comprised in the Corporate Entities and Trusts;
(b)Tender his resignation as a director and/or secretary of each of the companies comprised in the Corporate Entities and Trusts;
(c)Transfer his shares (if any) in each of the companies comprised in the Corporate Entities and Trusts, to the Wife;
(d)Renounce all claims against, and relinquish all entitlements to, each of the companies and trusts comprised in the Corporate Entities and Trusts of whatsoever nature, including unpaid beneficiary entitlements and loan accounts (and any and all claims of the Husband personally);
(e)Renounce all claims against the Wife relating to the Corporate Entities and Trusts;
(f)Assign to the Wife all unpaid beneficiary entitlements he may have, consent to his removal as a beneficiary, and agree not to receive any future distribution from, any of the trusts comprised in the Corporate Entities and Trusts.
8.That subject to the Husband’s compliance with orders 3, 4 and 5 hereof, the parties do all such acts and things to cause the Suburb K property to be removed as security held by the Commonwealth Bank of Australia ("CBA") over the following liabilities of N Pty Ltd ATF the Jung Meyer Family Trust and instead cause all security to be held over the Suburb H Property or as otherwise required by the CBA:
(a)The CBA Overdraft (account ending in …41);
(b)The CBA Loan (account ending in …34); and
(c)The CBA Guarantee.
9.The Husband be restrained by injunction from:
(a)Doing any act or thing permitted to be done by the Wife pursuant to order 6 hereof;
(b)Taking any actions directly intended to materially and/or negatively impact on the business of R Company;
(c)Enticing away or attempting to entice away employees, suppliers, contractors, or subcontractors of R Company;
(d)Doing any act or thing to cause any contractor/supplier to cease transacting business with R Company, including but not limited to contractors/suppliers in Country D;
(e)Registering any company which include the words ‘Jung’, ‘N Pty Ltd’, ‘R Company’ or related names or any derivation thereof; and
(f)Using any email address formerly used by him whilst employed in the business of R Company.
10.Pending the Husband’s compliance with orders 3, 4 and 5 hereof the Husband be and is hereby restrained from increasing the mortgage or borrowings secured on the title to the Suburb K Property.
11.The Wife personally and as a director of N Pty Ltd sign all documents and do all acts and things required to transfer to the Husband, at the expense of the Husband all of the interest of the said company in Motor Vehicle 1 driven by him and the husband shall pay, as and when payments fall due all repayments owing under the lease to T Finance relating to the purchase of that vehicle.
Retention of items
12.The Husband retain for his sole use and benefit absolutely, to the exclusion of the Wife:
(a)The Suburb K property;
(b)The City M Apartment;
(c)The Commercial Property;
(d)The part-property settlement of $1,890,000 received by him in accordance with the Interim Orders made on 18 May 2021;
(e)The sum of €50,000 applied by him to the purchase of the City M Property;
(f)His U Shares share portfolio;
(g)Any funds to his credit in any bank accounts in his name (including bank accounts held by him in Country D);
(h)His superannuation entitlements, subject to the provisions of these orders; and
(i)Any personal taxation liability accruing or accrued in his name.
13.The Wife retain for her sole use and benefit absolutely, to the exclusion of the Husband:
(a)The business trading as 'R Company' and the Corporate Entities and Trusts;
(b)The Suburb H Property;
(c)The part-property settlement of $1,890,000 received by her in accordance with the Interim Orders made on 18 May 2021;
(d)Her V Shares;
(e)Her digital currency portfolio and investments;
(f)Any funds to her credit in any bank accounts in her name;
(g)Her superannuation entitlements, subject to the provisions of these orders; and
(h)Any personal taxation liability accruing or accrued in her name.
Indemnities
14.Unless otherwise specified and contemporaneously with the Husband's compliance with all of his obligations pursuant to these orders, the Wife indemnify the Husband and keep him indemnified in relation to any liability of whatsoever nature and kind arising from his interest in the Corporate Entities and Trusts.
15.The Wife indemnify the Husband and keep him indemnified in relation to the following:
(a)The mortgage registered on the title of the Suburb H Property, in favour of the Commonwealth Bank of Australia;
(b)The repayment of loans provided by Mr W;
(c)Any personal income tax liability; and
(d)Any funds owing in relation to her Commonwealth Bank credit card.
16.The Husband indemnify the Wife and keep her indemnified in relation to the following:
(a)The mortgage registered on the title of the Suburb K Property, in favour of the Commonwealth Bank of Australia;
(b)Any personal income tax liability; and
(c)Any other liability in his sole name including any liability attaching to any item of property being retained by him pursuant to these orders.
Superannuation Fund 1
17.The Husband and the Wife sign all documents and do all acts and things required to roll out the Husband's member balance of $70,439 held in Superannuation Fund 1 to a superannuation fund nominated by him in writing within 14 days of the date of these orders.
18.In the event that the Husband refuses or neglects to advise the Wife of the name of the nominated superannuation fund the Wife shall be at liberty to pay his member balance to an industry fund of her choice and she shall forthwith advise the Husband of the superannuation fund to which that member balance has been paid.
Other
19.Unless otherwise specified in these orders and save for the purposes of enforcing the payment of any monies due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all real and personal property (including choses-in-action) in the legal or beneficial ownership or possession of that party as at the date of these orders;
(b)Any monies standing to the credit of the parties in any joint bank account are to be divided between the parties equally, and the parties forthwith are to do all such acts and things as may be necessary to close any such joint bank account/s;
(c)All insurance policies remain the property of the owner named thereon; and
(d)Each party be solely liable for and indemnify the other with respect to any liability encumbering any item of property to which that party is entitled pursuant to these orders.
20.Each of the parties do all things necessary and sign all such documents as are required by them individually or in their respective capacities as directors or shareholders to ensure compliance with the obligations imposed by these orders.
21.The parties be at liberty to provide a copy of these orders to their bankers, in order to implement the orders herein.
22.Any applications for costs arising from these proceedings be dealt with on the papers, with the party seeking costs to file and serve written submissions within 28 days of the date of these orders and any submissions in response to be filed and served within 14 days thereafter.
23.All extant applications be otherwise dismissed.
IT IS DIRECTED
24.That all documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the Subpoena Clerk of the Federal Circuit and Family Court of Australia, Division One, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fabian & Azarola has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant wife, Ms Jung, and the respondent husband, Mr Meyer, seek orders for the division of their property interests pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”).
The parties were married for a period of approximately 25 years and share three children. At the commencement of their relationship, when the husband was aged 28 years and the wife was 23, neither had any assets of significance. Together, over the course of their cohabitation, they established a successful business, and acquired a portfolio of property interests and superannuation. By the time of trial, those interests were valued between approximately $6 million and $7 million.
The proceedings commenced in 2021 and since that time there have been ongoing disputes between the parties as to the:-
·Control of the operation of the business and the business bank accounts;
·Distribution of income from the business; and
·Interim division of property.
The wife alleges that there has been significant and ongoing difficulties in the conduct of the proceedings arising from the husband’s non-disclosure, particularly in relation to his interests and business activity in Country D.
For his part, the husband contends that he has inherited assets from his late-father’s estate and that those interests ought be excluded from the parties’ pool of assets available for division. His adherence to that view influenced his approach to disclosure of those interests, which in many respects was found wanting.
There is a substantial dispute between the parties as to items that are to be included in their pool of assets and also, the value of those interests. The wife contends that the parties’ interests are valued at $7,038,003 whilst the husband submits that their pool is valued at $6,002,645 (Exhibit R5).
The wife seeks orders that there be an adjustment of their interests, including superannuation, on a 60/40 basis in her favour. The husband’s position is that there should be a 55/45 division of what he describes as the parties’ “Australian interests” in his favour, that there be an equalisation of their superannuation interests, and that he retain his Country D assets, which he submits comprise interests inherited by him from his father’s estate.
Whilst previously there had been issue between the parties as to who ought retain the parties’ business, by the conclusion of the hearing, it was common ground that the wife would retain and continue to operate the business. Similarly, at the commencement of the hearing there were a raft of addbacks the husband contended ought be included against the wife in the calculation of the parties’ balance sheet that ultimately, were not pressed by the time of closing submissions.
For the reasons that follow, I am satisfied that the parties’ interests (including superannuation and those in Country D) should be divided in the proportions 56 per cent in favour of the wife and 44 per cent in favour of the husband.
THE PARTIES
The wife is aged 51 years. She wife is a Director and equal shareholder with the husband in N Pty Ltd (“the Company”) as trustee for the Jung Meyer Family Trust, through which the retail business ‘R Company’ (“the Business”) is conducted. Since orders made by the Court on 20 August 2021, the wife has been solely responsible for the day-to-day operation of the Business.
The husband was born in Country D and is aged 56 years. He is an Australian citizen. He contends that he is unemployed. That was a matter in dispute at the time of final hearing which I will address in more detail below.
The parties met in City M, Country D, in 1994 where the wife was studying and the husband was working in a business operated by his family. They commenced cohabitation in City M in 1995.
The parties relocated to Australia in mid-1996, and married in 1997. They separated in August (as contended by the husband) or October (as contended by the wife) 2018. Little turns on that dispute. The parties were granted a divorce in mid-2022.
There are three children of the marriage, Mr B, aged 22 years, Mr C, aged 20 years, and X, aged 17 years. The children live with the wife. Mr B and Mr C have completed their secondary education and are taking “gap” years before commencing tertiary studies. X attends Y School. At the time of trial, she was in Year 10.
BACKGROUND
At the commencement of their cohabitation neither the husband nor the wife had any assets of significance.
Upon the parties’ return to Melbourne in 1996, they lived at the home of the wife’s parents in Suburb Z rent-free for a period of approximately seven months. They then moved to a property owned by the wife’s father in Suburb AA, where they lived rent-free for a further period of approximately two years.
During that period, the husband worked in the hospitality industry and the wife worked as a retail assistant.
In 1997, the parties commenced operation of the Company and the Business. The husband and wife together with the wife’s brother, Mr CC, were the directors and equal shareholders of the Company. Initially, the Business operated as a wholesale supplier of goods.
In approximately 1999, the Business commenced operating a retail outlet. At about that time, the wife’s brother resigned as a director and transferred his shares in the Company to the husband and wife.
The parties’ first child, Mr B, was born in 2002. The wife continued to work in the Business following Mr B’s birth. In addition, she was the primary carer to the parties’ child. Mr B commenced attending childcare for three days per week when he was 10 months old.
In 2007, the husband’s mother died. Prior to her death, she transferred her interests in two properties partly owned by her in Country D to the husband. As a result, the husband held a one-half interest in a commercial property in Country D and a one-half interest in an apartment at DD Street, Suburb BB, City M, Country D (“the Suburb BB apartment”).
In 2007 or 2008, the husband’s father gifted the parties the sum of approximately €100,000, which was applied by them to further develop the Business.
The husband’s father died in 2018. As a result, the husband contends he inherited his father’s interests in the Country D commercial property, and the Suburb BB apartment, resulting in the husband having a 100 per cent interest in those properties. The husband alleges he applied the cash component of his inheritance to acquire his niece’s interest in the Suburb BB apartment.
During the relationship the parties bought and sold properties in their own names or entities controlled by them in which the family lived. At the time of their separation, the parties owned the former matrimonial home in Suburb H and a holiday home in Suburb F, Victoria (“the Suburb F property”).
Following separation, in about early 2019 the parties purchased the property at EE Street, Suburb FF, for the husband to live in. That property was purchased for the sum of around $750,000 and was funded from the parties’ joint bank account.
The parties sold the former matrimonial home at Suburb H following the separation. In anticipation of the sale of that property, the parties agreed to undertake renovations to the property as recommended by the selling agent to maximise its sale price.
The parties borrowed funds from the wife’s mother to assist with those renovations. In total, the wife’s mother advanced the sum of $65,000 to the parties between 2019 and early-2020 for the purpose of those renovations, including the replacement of timber flooring, the re-carpeting of bedrooms, interior paintwork, replacement of light fittings, the updating of the bathrooms and the replacement of outdoor decking and landscaping. The repayment of the funds borrowed from the wife’s mother for those improvements was disputed by the husband.
The Suburb H property sold in early 2021 for the sum of around $3,700,000, and the net proceeds of sale received by the parties totalled $1,489,306. That sum was released to the wife to enable her to settle the purchase of a property at G Street, Suburb H (“G Street”) where she lives with the children.
Initially, the husband refused to release to the wife funds to enable her to purchase G Street. That refusal was the catalyst for the wife commencing these proceedings in April 2021. In May 2021, orders were made by consent releasing the sale proceeds of the Suburb H property to the wife. Orders were also made by consent for the sale of the property at Suburb F held in the name of the Company, and for each party to receive the sum of 25 per cent of the net proceeds of sale with the balance to be held in an interest-bearing account on trust for them by the wife’s lawyers.
In mid-2021, the husband purchased the property at J Street, Suburb K for the sum of $1,800,000 (“the Suburb K property”). Further interim orders were made by consent in May 2022 releasing a term-deposit of the parties to be applied towards the purchase of the Suburb K property.
Both the G Street and the Suburb K property provide security to the Commonwealth Bank of Australia in relation to the liabilities of the Business.
The parties sold the Suburb FF property in mid-2021 and the sale proceeds were paid to the parties.
The matter was allocated to my docket in May 2022, and first came before me for a Case Management Hearing on 15 July 2022. That day, I made trial directions listing the matter for final hearing commencing on 14 March 2023.
In mid-2022 the parties received an offer to purchase the Suburb F property for the sum of $2,550,000; that offer was accepted by the wife. The husband refused to sign the contract of sale and as a result, a further Application in a Proceeding was filed by the wife in August 2022 which sought orders appointing her as trustee for the sale of the Suburb F property. Ultimately, that issue was resolved by consent and the husband signed the contract of sale. The proceeds of sale of the Suburb F property, being the sum of approximately $961,000 are held in an interest-bearing account on trust for the parties by the wife’s lawyers.
On 14 March 2023, the matter was not ready to proceed to final hearing due to outstanding disclosure and valuation issues raised by the wife. That day, I made orders for disclosure by the husband, and further orders listing the matter for final hearing commencing 9 August 2023.
MATERIAL RELIED UPON
The wife relies upon the following documents:-
·Outline of Case document filed 7 August 2023;
·Further Amended Application for Final Orders filed 25 January 2023;
·Financial Statement filed 25 January 2023;
·Trial affidavit of the wife filed 25 January 2023;
·Affidavit of Mr W filed 25 January 2023;
·Affidavit of Ms GG filed 25 January 2023;
·Trial affidavit of the husband filed 17 February 2023;
·Financial Statement of the husband filed 17 February 2023;
·Wife’s Objections to Evidence of the husband filed 23 February 2023;
·Affidavit of Mr HH filed 21 July 2023 (annexing the valuation report of the parties’ corporate entities and trusts);
·Affidavit of Mr JJ filed 7 June 2023 (annexing valuation report of the wife’s real property);
·Application in a Proceeding of the husband filed 1 August 2023;
·Affidavit of the wife filed 1 August 2023;
·Affidavit of Ms KK filed 7 August 2023 (annexing valuation report of the City M property);
·Affidavit of the wife filed 7 August 2023;
·Affidavit of Mr JJ filed 8 August 2023 (annexing the valuation report of wife’s real property); and
·Exhibits A1 – A15 inclusive, being documents tendered during the course of proceedings.
The husband relies upon the following documents:-
·Outline of Case document filed 8 March 2023;
·Amended Response to Application for Final Orders filed 7 August 2023;
·Financial Statement filed 17 February 2023;
·Affidavit of the husband filed 17 February 2023;
·Affidavit of Mr HH (annexing valuation report of parties’ corporate entities and trusts) filed 21 July 2023;
·Exhibits R1 – R7 inclusive, being documents tendered during the course of proceedings.
ORDERS SOUGHT
The wife sought orders in the terms of the Minute of Proposed Orders tendered on 11 August 2023 (Exhibit A15). In summary, she seeks orders that:-
(1)Within 60 days the husband pay to her the sum of $225,777;
(2)The net proceeds of sale of the Suburb F property (being approximately $668,998) be released to the wife;
(3)The wife retain the Business to the exclusion of the husband and he do all acts and things to resign offices held by him and transfer to the wife his interests in the parties entities and trusts;
(4)The parties do all acts necessary to remove the Suburb K property as security to the Commonwealth Bank of Australia for the liabilities of the Business and cause the security to be held over the Suburb H property;
(5)The husband retain his interest in:-
(a)The properties at Suburb K, the City M apartment, the Country D commercial property;
(b)The part-property settlement received by him in the sum of $1,890,000;
(c)The sum of €50,000 applied by him to the purchase of the City M property;
(d)His U Shares;
(e)Funds held by him in his accounts; and
(f)His superannuation entitlements.
(6)The wife retain her interests in:
(a)The Business;
(b)The Suburb H property;
(c)The part-property settlement received by her in the sum of $1,890,000;
(d)Her V Shares;
(e)Her digital currency portfolio and investments;
(f)Funds held by her in her accounts; and
(g)Her superannuation entitlements.
(7)Each party indemnify the other in relation to liabilities, including personal income tax liabilities to be retained by them.
The husband sought orders in the terms of the Minute of Proposed Orders tendered on 9 August 2023 (Exhibit R1). In summary, he sought orders that:-
(1)The proceeds of sale of the Suburb F property be paid to the husband in such amount as required to effect a 55 per centum division of the parties non-superannuation assets (excluding the husband’s interest in the City M property) to the husband and 45 per centum to the wife and if insufficient, the wife pay the balance remaining to the husband within 60 days;
(2)Within 60 days the husband resign offices held by him and transfer his shares in the parties’ corporate entities and trusts;
(3)The parties do all acts necessary to remove the Suburb K property as security to the Commonwealth Bank of Australia for the liabilities of the Business and cause the security to be held over the Suburb H property;
(4)The husband retain his interest in:-
(a)The property at Suburb K and the Suburb BB apartment;
(b)The proceeds of sale of the Country D commercial property;
(c)The part-property settlement received by him in the sum of $1,890,000;
(d)The sum of €50,000 applied by him to the purchase of the City M property;
(e)His U Shares;
(f)Funds held by him in his accounts; and
(g)His superannuation entitlements.
(5)The wife retain her interests in:-
(a)The Business;
(b)The Suburb H property;
(c)The part-property settlement received by her in the sum of $1,890,000;
(d)Her V Shares;
(e)Her digital currency portfolio;
(f)Funds held by her in her accounts; and
(g)Her superannuation entitlements.
(6)Each party indemnify the other in relation to liabilities, including personal income tax liabilities to be retained by them;
(7)A superannuation split of the parties’ self-managed superannuation fund so as to equalise the parties’ member entitlements.
THE HEARING
The hearing commenced before me on 9 August 2023 and concluded on 11 August 2023. Both parties were represented by Counsel for the duration of the three-day hearing.
The only witnesses required for cross-examination were the husband and the wife. Accordingly, the evidence of the wife’s parents, Mr W and Ms GG, who each swore affidavits in relation to the monies advanced by them to the parties during their relationship, was unchallenged. I accept that evidence.
THE ISSUES
The issues that emerge from the parties’ competing applications which require determination are:-
·What value ought be attributed to the Country D commercial property;
·The value of the husband’s interests in the proceeds of sale of the Suburb BB property;
·Whether the husband has an entitlement to deposit monies paid in respect of an apartment in City M;
·The extent of the husband’s interests in bank accounts in Country D;
·The extent of the husband’s interests in the LL Shares;
·Whether the husband’s interests in Country D ought be excluded from the parties’ asset pool available for division;
·Whether the parties’ superannuation interests should be included in the asset pool or treated as a separate pool;
·Whether there has been non-disclosure by the husband and if so, the impact of that conduct upon the adjustment of the parties’ interests; and
·What adjustment, if any, should be made in respect of s 75(2) factors.
LEGAL PRINCIPLES
Applications for property division are to be determined in accordance with Part VIII of the Act. In property settlement proceedings, the Court may make such orders as it considers appropriate (s 79(1) of the Act). The Court cannot, however, make an order unless it is satisfied that, in all of the circumstances, it is just and equitable to do so (s 79(2) of the Act).
In considering what, if any, order should be made in property settlement proceedings, pursuant to s 79(4) of the Act the Court must take into account the following:-
(1)The financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, whether or not that property still exists;
(2)The contribution (other than financial contribution) made directly or indirectly by or on behalf of a party to the acquisition, conservation or improvement of any of the property of the parties whether or not that property still exists;
(3)The contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent;
(4)The effect of any proposed order upon the earning capacity of either party to the marriage;
(5)The matters referred to in s 75(2) of the Act so far as they are relevant;
(6)Any other order made under the Act affecting a party to the marriage or a child of the marriage; and
(7)Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The High Court in Stanford & Stanford (2012) 247 CLR 108 (“Stanford”) considered the approach to be adopted in the determination of proceedings pursuant to s 79 of the Act.[1] The plurality at page 121 adopted the view of Barwick CJ, Gibbs, Stephen and Mason JJ in R v Watson; Ex parte Armstrong (1976) 136 CLR 248 that whilst the Court holds a broad discretion, such is not an unfettered discretion and must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”.[2]
[1] Stanford, [35]-[40].
[2] R v Watson; Ex parte Armstrong (1976) 136 CLR 248, [12].
The High Court’s decision in Stanford was considered by the Full Court in the cases of Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545 (“Bevan”) and Chapman & Chapman [2014] FamCAFC 91; (2014) FLC 93-592.
In Bevan, the Full Court identified three “fundamental propositions” laid down by the High Court which they considered should guide a Trial Judge’s approach to the task under s 79. Those propositions were summarised by the Full Court at [73] as follows:-
1.Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);
2.The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;
3.A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.
(Emphasis in Original)
Accordingly, in determining the parties' competing applications pursuant to s 79 of the Act, the Court is required to:-
·Identify the parties' respective legal and equitable interests in property;
·Determine whether, in accordance with s 79(2), it is just and equitable to make a property settlement order having regard to the parties' existing interests;
·Determine all relevant contributions of each of the parties;
·Identify and weigh against each other the matters set out in s 79(4)(a) to (c) inclusive of the Act; and
·Consider the matters contained in s 79(4)(d) to (g) inclusive of the Act and make a determination as to what, if any, alteration should be made to the entitlements of the parties earlier assessed on account of their contributions, particularly having regard to the provisions of s 75(2) of the Act.
The Act does not prescribe a particular order in which the matters contained within s 79(4) are to be considered. Instead, their consideration will be dependent upon the particular circumstances of the marriage, with the manner in which the parties have organised and lived within the marriage deemed to be factors which may be relevant in the exercise of the s 79(2) discretion.
THE EVIDENCE
In determining the matter, the relevant standard of proof is the balance of probabilities. Section 140(2) of the Evidence Act 1995 (Cth) provides that, without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:-
·The nature of the cause of action or defence;
·The nature of the subject-matter of the proceeding; and
·The gravity of the matters alleged.
The parties’ affidavits exhaustively set out their accounts of the history of their relationship and their position in relation to matters in dispute. I have read and considered that affidavit evidence and do not propose to repeat it at length in these reasons. It is not necessary for a Trial Judge to refer to every piece of evidence or argument presented during a trial. That this is so, was confirmed by the High Court in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], where Gleeson CJ, McHugh and Gummow JJ said:
… A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
I have also read the exhibits that were tendered during the hearing and had the benefit of observing the appearance and demeanour of the husband and the wife when giving their evidence in Court.
In what follows, statements of fact constitute findings of fact. In determining the matter, I have had regard to all the evidence. In making my findings, I have carefully considered all of the evidence, the nature of the proceedings, the seriousness of the allegations and the consequences that flow from my findings.
The wife’s evidence
The wife was cross-examined by Counsel for the husband for a period of approximately one-and-a-half hours. There was no serious challenge to her evidence, and I found the wife to be a truthful and responsive witness.
The wife was cross-examined as to her drawings from business accounts to meet expenditure for the children. The wife’s evidence in relation to her application of the funds was frank and clear and it was evident she had a detailed knowledge as to the operation of those accounts.
The wife was open and readily conceded that she had drawn amounts from the business account from time-to-time to meet family expenses, such as utility bills; she confirmed that on occasions, the weekly payment received by her from the Business pursuant to Court order was insufficient to meet those expenses. I accept that evidence.
Further, the wife was challenged as to the application of monies advanced by her mother towards the renovation of the former matrimonial home at Suburb H. The wife’s evidence in relation to those matters was consistent with that contained in her trial affidavit and was unshaken during the cross-examination. I accept that evidence.
Throughout her oral evidence the wife impressed as a forthright and honest witness, and I accept her evidence.
The husband’s evidence
The husband was cross-examined on the second day of hearing. He was an unimpressive witness whom I observed to be unreliable, evasive and at times non-responsive when challenged. The husband was steadfast in his view that his interests in Country D ought not be available for division between the parties and that belief appeared to influence his attitude and approach to his obligations to make full and frank disclosure.
For example, the husband was cross-examined as to the many occasions upon which he was asked, through his lawyers, to produce documents evidencing his overseas interests. The husband conceded that the wife’s lawyers had written letters dated 8 December 2022, 30 January 2023, and 27 February 2023 requesting documents, including those related to savings accounts held by him in Country D (Exhibit A6). The husband confirmed that he had not produced documents as sought in that correspondence; he appeared unrepentant as to his failure to produce those documents.
At times, the husband appeared entirely dismissive of his obligation to make disclosure to the Court. For example, he was cross-examined as to his failure to produce the contract for the sale of the Suburb BB apartment, which he alleged he had sold. The husband acknowledged that he had received letters of request for that document on 5 April 2023 and 21 July 2023. The husband also conceded that by the date of the second letter, being 21 July 2023, he was in possession of the contract of sale for that property. When questioned as to why he did not then produce the document, the husband was dismissive, responding that he was overseas with the parties’ son. The husband also acknowledged that he had had five months to produce that document but that he only produced it the week prior to the commencement of the final hearing. The husband was cavalier in relation to his obligation to disclose that document.
The husband was also cross-examined in relation to his employment, particularly in the period after the wife assumed control of the Business in mid-2021; the husband claimed to have been unemployed since that time. During his oral evidence, the husband confirmed that he had been asked to produce all of his payslips and employment records, and that that request was made by letter dated 1 August 2023 (Exhibit A6). The husband’s response to that request was that he was unemployed.
During his oral evidence, when challenged as to his employment the husband stated that he had not worked for an entity known as “[MM Company]”; he also confirmed that he had not been paid by that entity. However, when pressed, the husband conceded that he had worked for MM Company, but claimed that he had not been paid. His explanation for not disclosing that he had worked for that entity was that it was owned by his ex-partner and that she paid for everything during their relationship.
The husband was then cross-examined in relation to an authority provided by him to MM Company dated 26 July 2023 in which he directed that entity to pay to him the sum of €4,600. When presented with that document during cross-examination, the husband confirmed that he had received the payment, but maintained that he had returned the funds to his ex-partner.
The husband was also cross-examined in relation to a document headed “Invoice Number 2” produced by the husband for work undertaken by him; that invoice is dated 5 June 2023 in respect of a claim for €4,600 (Exhibit A9). The husband conceded during his oral evidence that he had rendered that invoice, notwithstanding his earlier contention that he was unemployed. A call was made by the wife’s Counsel for the husband to produce Invoice Number 1. That call was not answered.
The husband’s evidence that he was unemployed was given in the face of his “LinkedIn” profile tendered on behalf of the wife (Exhibit A1), in which the husband describes himself as a “[Director, MM Company] | [Executive]”. That profile noted that the husband had been a Director at MM Company for five months and that it operates in industry. During cross-examination, the husband conceded that he had provided the information contained in that profile.
It was put to the husband that MM Company was conducting business in competition with the Business. The husband rejected that proposition. When challenged, the husband acknowledged that his role in MM Company is to approach customers, which he noted were “international […]” and agreed that he had connections with the suppliers of the Business.
The husband’s evidence in relation to his employment status and work undertaken by him in the post-separation period was unimpressive. Only when presented with documents evidencing his rendering of invoices for work undertaken by him did the husband acknowledge that he had provided services for which he was paid. I found the husband to be an evasive witness when pressed as to his role in MM Company.
The husband’s evidence as to his entitlements under his father’s estate was equally unimpressive. Throughout the proceedings, the husband maintained that he received an inheritance from his father’s estate after the parties’ separation and that as such, that property ought be excluded from the pool of assets available for division. The husband maintained that the wife has no claim to those interests.
Notwithstanding those assertions, the husband has produced scant documents to support his contentions. During his oral evidence, the husband conceded that he had had ample opportunity to establish what he had received from his father’s estate. He acknowledged that the wife challenges his assertion in relation to his inheritance. The husband also acknowledged that requests had been made for production of his father’s Will and that he produce evidence of what he had received from that estate.
During cross-examination, the husband stated that he had not produced his father’s Will as he does not have it in his possession. It was further put to him that he had not produced documents from those who administered the estate. The husband maintained that all documents had been produced. In circumstances where the husband has not produced a Will, letters of administration, grant of probate, inventory of the estate assets or any other documents evidencing the assets comprising his father’s estate, their value or his entitlements in relation thereto, I do not accept that assertion.
It was also put to the husband that whilst he alleges that his niece had received property from the father’s estate, he had not provided evidence as to the division of the estate assets. When questioned as to why he had not called his niece to give evidence in relation to the division of his father’s estate, the husband maintained that no one had told him she was required. That the husband’s claims as to his inheritance was a strongly contested issue in the proceedings was evident early in the proceedings; the wife’s challenge to those matters is clear. Accordingly, I do not accept the husband’s evidence as to his ignorance of the requirement that he prove his assertions.
The husband was further cross-examined in relation to [64(e)] of his trial affidavit wherein he deposed that his father’s estate consisted of “various liabilities”. He was challenged as to what liabilities of the estate were in existence. The husband’s oral evidence was that the only liability of the estate was to his niece; again, he adduced no independent evidence to support that assertion.
During closing submissions the husband’s Counsel conceded that the husband had failed to produce admissible independent evidence of his alleged sale of the Country D commercial property, or in relation to the sale of the Suburb BB property. Similarly, she conceded that the husband had failed to produce documents in relation to the deposit monies he contends were paid by him for the purchase of the City M apartment.
Having regard to the husband’s oral evidence, as well as the concessions made by his Counsel during closing submissions as to his non-disclosure in relation to his Country D interests, I am satisfied that the husband is an unreliable witness who has been less than candid in these proceedings. I am satisfied that the husband has failed to make disclosure in relation to many issues in dispute. Further examples of the husband’s unreliable evidence are referred to elsewhere in this judgment.
Having regard to the totality of the husband’s evidence, I am satisfied that he was not a witness of truth and was often evasive or non-responsive when challenged. Consequently, where the husband’s evidence conflicts with that of the wife, I prefer her evidence.
DISPUTED ITEMS IN THE BALANCE SHEET
During closing submissions, Counsel for the husband tendered a joint balance sheet (Exhibit R5) which identifies the respective positions of the parties in relation to the value of their assets and liabilities, summarised as follows:-
NO
ITEM
OWNERSHIP
APPLICANT’S VALUE
RESPONDENT’S VALUE
1.
G Street, Suburb H
Wife
(Agreed)
$1,890,000
$1,890,000
2.
J Street, Suburb K
Husband
(Agreed)
$1,890,000
$1,890,000
3.
NN Street, Suburb OO, City M, Country D (“Country D commercial property”).
(Valued €126,966.79 although husband contends he sold it for €84,000)
Husband
(Disputed)
AUD $212,034
AUD $140,280
4.
Balance of the proceeds of sale of DD Street, Suburb BB (“Suburb BB Property”). Wife seeks the difference between the value, €212,000 and the sum the husband alleges it was sold €136,000, being €76,000.[3]
Husband (Disputed)
AUD $126,920
NIL
5.
Deposit monies paid by the Husband in relation to the real property L Street, City M, Country D (“City M apartment”) due to settle late 2023 (€50,000)
Husband (Disputed)
AUD $83,500
NIL
6.
Proceeds of sale of the Suburb F property
N Pty Ltd (Agreed)
$960,998
$960,998
7.
R Company (conducted via N Pty Ltd ATF the Jung Meyer Family Trust) and the associated corporate entities and trusts (“R Company”)
N Pty Ltd ATF Jung Meyer Family Trust
$1,091,000
$1,091,000
8.
Bank accounts
CBA Account …16
($8,815.69 at 06.02.2023)
CBA …14 ($165,245.72 at 06.02.2023)
PP Financial Services …29 (Country D) (current balance NK) (€252,463 at 30.06.2022)
QQ Bank and other accts (current balance NK)
Husband
(Agreed)
(Disputed)
(Disputed)
NIL
$417,500
NOT KNOWN
NIL
$5443
NIL
9.
Share Portfolios
LL Shares (Country D) (sold for 103,500 Euro post separation)
U Shares ($281,024 at 21.03.2013)
Husband
(Disputed)
NOT KNOWN
$172,845
NIL
NIL
NIL
10.
Add backs (items 22-33) asserted by Husband.
Add backs against the wife and explained as personal or children’s expenditure
Husband
(Agreed)
(Disputed)
$159,564
NIL
$159,564
NOT PRESSED
11.
Part property (H)
Part property (W)
Husband
(Agreed)
Wife
(Disputed)
$234,236
$308,800
$234,236
$343,800
12.
Husband’s legal costs
Husband
Not explained
TOTAL ASSETS
$7,547,397
$6,555,757
LIABILITIES
13.
CBA Loan …62 ($258,404 at 01.08.2023)
Wife
(Agreed)
N/R
N/R
14.
CBA Loan …80 ($197,777 at 05.02.2023)
Husband
(Agreed)
N/R
N/R
15.
CBA credit card …40 (22,677 as at 01.08.2023)
Wife
(Disputed)
$22,677
16.
Income taxation payable for the financial years ended 2021 and 2022
Wife
(Agreed)
$182,509
$182,509
17.
Income taxation payable for the financial years ended 2021 and 2022
Husband
(Agreed)
$175,895
$175,895
18.
Funds owed to the Wife’s father, Mr W
Wife
(Agreed)
Not pressed
NK
19.
Legal fees relating to the alleged tenancy dispute and estate administration
Husband
(Disputed)
NIL
E $62,092
20
Dental invoice
Husband
(Disputed)
NIL
Not pressed
21
CGT Payable on Suburb F (on basis gain is equally apportioned to parties)
Husband
Wife
$146,000
$146,000
$146,000
$146,000
TOTAL LIABILITIES
$673,081
$716,499
NET ASSETS
$6,874,316
$5,839,258
SUPERANNUATION
22.
Superannuation Fund 1
Wife
$93,248
$93,248
23.
Superannuation Fund 1
Husband
$70,439
$70,439
TOTAL SUPERANNUATION
$163,687
$163,687
NET ASSETS INCLUSIVE OF SUPERANNUATION
$7,038,003
$6,002,945
[3] The parties used an exchange rate of $AUD 1.67 = €1 in Exhibit R5.
What follows are my findings with respect to the disputed items in the tendered joint balance sheet.
Item 3 – the Country D commercial property
The wife relies upon the expert valuation prepared by Ms KK annexed to his affidavit filed 7 August 2023 which values the Country D commercial property at €126,966. That valuation was prepared upon instructions from the wife in the face of the husband’s opposition to the preparation of a single expert valuation. It is the only valuation evidence in relation to the Country D commercial property.
The husband’s position in relation to that property is that he has entered into a contract for its sale for the sum of €84,000. The only evidence produced by the husband in relation to the alleged sale was a four-page document he contended was a contract of sale, said to be valid until early 2023; that document was written in Country D language, no translation of it was provided and even if proved its operation had expired by the time of final hearing.
During closing submissions, it was conceded by the husband’s Counsel that the husband had adduced no admissible independent evidence as to his purported sale of the Country D commercial property. She acknowledged that no contract had been produced by the husband, there was no evidence adduced from the alleged purchaser of the property, and no admissible evidence of any deposit received by the husband in respect of the alleged sale.
The purported contract for sale was only entered into by the husband after correspondence was forwarded by the wife’s lawyer to his lawyer seeking his proposals for the appointment of a single expert valuer to value that property. Further, the document was executed by the husband without prior notice to the wife of his intention to sell the property.
Having regard to the concessions made by the husband’s Counsel regarding the absence of independent admissible evidence regarding the alleged sale, and in circumstances where the only evidence as to value is the expert valuer’s report adduced by the wife, I accept the wife’s valuation evidence as to the value of the Country D commercial property.
Accordingly, I will include the Country D commercial property at $212,034, being its agreed value when the valuer’s assessment is converted into Australian dollars.
Item 4 – the Suburb BB property
The Suburb BB property was originally owned by the husband’s parents. He acquired a one-half interest in that property following his mother’s death in about 2007 and acquired the remaining one-half interest in the property following his father’s death in 2018.
The wife deposes that in about 2021 she discovered that the Suburb BB apartment had been listed for sale online, with an advertised listing price of €245,000. She deposed that at about that time, she proposed that there be a single expert valuation of that property, as well as the Country D commercial property. The husband did not agree with that proposal.
The wife deposed that she was later informed by the parties’ children that the husband had in fact sold the property. As a result of that information, she caused her lawyers to seek from the husband copies of the contract of sale. Those requests were made by her lawyers by email on 13 July 2022, 19 September 2022, 27 September 2022 and 8 December 2022. The husband did not respond to those requests.[4]
[4] Wife’s trial affidavit filed 25 January 2023, [112] – [117].
The wife deposed that on 4 November 2022 the husband produced bank statements for his PP Financial Services account ending …29 held by him in Country D. The statements produced by him disclose a deposit into that account for €135,487.58 in mid-2022 with the transaction circled and a handwritten note “Sold apartment [Suburb BB]”.[5]
[5] Wife’s trial affidavit filed 25 January 2023, [118].
It is common ground that the husband did not produce the contract for sale of the Suburb BB apartment until one week prior to the commencement of the final hearing. The sale price as disclosed in that contract was €212,000. Notwithstanding that document, the husband maintains that the net proceeds of sale received by him for the Suburb BB property is €136,000.
The wife seeks that the difference between the contract price and the amount claimed by the husband, being €76,000 or AUD $126,920 be included in the parties’ pool of assets.
The husband was cross-examined as to his failure to produce the contract of sale. During cross-examination, the husband conceded that the only document previously produced by him was a copy of an Affirmation from a Notary Public, which asserted that the contract price was €136,487. That statement was produced by the husband on 18 April 2023 following orders made in March 2023 requiring him to produce the contract of sale. When questioned as to what steps he had taken between the making of those orders in March 2023 and April 2023 to obtain a copy of the contract, the husband responded, “honestly none”. Again, the husband’s evidence in relation to his disclosure of these matters was unimpressive and supports a finding that he had simply disregarded his obligations as to disclosure and to comply with orders of this Court.
During closing submissions, the husband’s Counsel conceded that there had been no documents produced by the husband evidencing:-
·The sale of the Suburb BB apartment;
·The payment to him of the proceeds of the sale;
·His disposition of the sale proceeds by:-
A.Payment by him in relation to his acquisition of the second City M apartment; or
B.Any agreement with his niece regarding arrangements he alleges to have made with her to acquire her interest in the Country D commercial property.
In circumstances where the husband adduced scant independent evidence as to the circumstances of the sale of the Suburb BB property, the disbursement of the sale proceeds, or the amounts received by him, I am satisfied on the balance of probabilities that the sale price as disclosed in the contract produced by the husband one week before the trial, being the sum of €212,000, is the best evidence as to the amounts received by him from the sale.
That being the case, I am satisfied that the difference between the contract price and the amount conceded to have been received by him ought to be included in the pool of assets available for division.
Accordingly, the sum of $126,920 will be included at Item 4.
Item 5 – Deposit paid by the husband for City M apartment
The husband purchased an apartment at L Street, City M for €800,000 in late 2022. That day, he paid a deposit of €50,000.
In his trial affidavit, the husband deposed that he was required to pay a further deposit of €150,000 but did not have funds available to pay that amount. He deposes that he requested the wife to release funds from the sale proceeds of the Suburb F property to enable him to provide the further deposit but that the wife refused. As a result, the husband alleges that he could not settle the purchase of the property and lost his deposit.[6]
[6] Husband’s trial affidavit filed 17 February 2023, [213] – [215].
The only document produced by the husband in support of those matters was what he alleges to be a copy of the sale contract, annexed to his affidavit at “[MM]-37”.
The wife’s Counsel objected to the husband’s reliance on that document in circumstances where it is written in Country D language and no translation of the document is provided; it was submitted that it is not for the wife to be put to the expense of obtaining a translation of the document in order to prove the husband’s case. I accept that submission; the document upon which the husband seeks to rely is plainly inadmissible.
Further, it was submitted on behalf of the wife, and I accept, that the husband’s contention that settlement of the purchase was to occur in “[late] 2023” does not bear scrutiny in circumstances where that date does not exist.
It was conceded by the husband’s Counsel that the husband has produced no documents to support his claim in relation to what she described as “the lost deposit”.
However, that concession alone does not resolve the question of whether the deposit paid by the husband ought be included in the parties’ balance sheet. The wife acknowledged that the deposit paid by the husband was sourced from the proceeds of sale of the Suburb BB apartment. She also acknowledges that the statements for the husband’s PP Financial Services account ending …29 evidence a deposit into that account of approximately €135,000 in mid-2022, being funds received in relation to the sale of the Suburb BB apartment. Further, the wife deposes that there was a debit from that account of €50,000 which appears to be the deposit for the purchase of the City M apartment, the transaction noted as “new house deposit + commission”.[7]
[7] Wife’s trial affidavit filed 25 January 2023, [118].
Having regard to that evidence, were I to include the deposit monies in circumstances where the payment acknowledged by the husband for the sale of the Suburb BB apartment forms part of Item 8 in the joint balance sheet (being the husband’s PP Financial Services account as at 30 June 2022), that would be an exercise in double counting. Accordingly, I will not include the wife’s claim that the deposit monies be included in the parties’ balance sheet.
Item 7 – R Company
The valuation of the business was prepared by Mr HH upon joint instruction of the parties. Mr HH assessed the value of the business to be $1,091,000. During closing submissions, Counsel for the husband conceded that the valuation of the business is agreed. Accordingly, I will include the value of the business in the balance sheet at $1,091,000.
The only remaining issue between the parties relating to the business arises from the husband’s claim that Motor Vehicle 1 registered in the name of the Business, but in the husband’s possession, be retained by him.
The wife’s position in relation to that claim is that the vehicle may be retained by the husband on the basis that there be an assignment of the lease in respect of it to him, and that he be responsible for meeting repayments under the lease as and when they fall due.
There is no evidence before the Court as to the value of the motor vehicle or the costs associated with the financing of it. In circumstances where the motor vehicle is an asset of the Business with a liability attached to it, I am satisfied that if the husband is to retain it, he should assume responsibility for the liabilities related to it.
Item 8 – Husband’s bank accounts
The wife contends that the husband has disclosed a PP Financial Services account ending …29, being a Country D account in his name which as at 30 June 2022 had a balance of €252,463. The wife relies upon Annexure “[MM]-4” to the husband’s trial affidavit (Exhibit R6) in support of that position. In circumstances where the husband had not produced current statements in relation to that account, it was submitted on behalf of the wife that the best evidence as to the husband’s interest in that account was that disclosed by him in Exhibit R6.
The husband’s position is that the sum of $5,443 ought be attributed to him in respect of that account, that being the balance disclosed by him in his Financial Statement filed 17 February 2023.
The evidence in relation to the amounts held by the husband in accounts in Country D is most unsatisfactory.
It was conceded by the husband’s Counsel that the husband has not produced documents evidencing the current balance held in that account. The only document produced by the husband in relation to the account is Exhibit R6, which is what purports to be a screenshot of a bank statement written in Country D. Again, there is no translation of that document. The final balance held in the account as at 30 June 2022 is €252,463; that is the figure relied upon by the wife.
The husband adduces no evidence as to the current position with respect to that account. Further, the husband adduces no evidence as to how the funds held in that account, which he contends to be €130,386 as at 30 June 2022, have been reduced to the sum of AUD $5,443 at the time he swore his Financial Statement.
Having regard to the failure of the husband to produce a translated version of the bank statement or a complete set of statements in relation to the account, I am satisfied on the balance of probabilities that the balance as disclosed at 30 June 2022, being the sum of €252,463, which it is agreed converts to AUD $417,500, ought be included in the parties’ balance sheet.
The wife is also critical of the husband’s failure to adduce documents in relation to an account held in his name with QQ Bank. The wife contends that the husband holds an account with that bank in his name and produced a bundle of documents obtained by her (written in Country D language) in support of that position (Exhibit A7). She does not attribute a value to that account, but contends that it is a matter to be taken into account in consideration of s 75(2)(o) factors.
When cross-examined in relation to that account, the husband maintained that it was his father’s account and further that his girlfriend and niece also hold accounts with that bank. During the course of his oral evidence, a call was made for the husband to produce documents evidencing that the account related to his father. The husband produced no documents in answer to that call.
I am satisfied that the husband’s failure to produce documents in relation to his contentions regarding that account is a factor to be taken into account generally when considering the impact of his non-disclosure. I will address the matter further later in the judgment.
Item 9 – Share portfolios
The wife contends that the husband sold his LL Shares held in Country D following the parties’ separation. She contends that those shares were sold for €103,500, that is AUD $172,845, and that that amount ought be included in the parties’ balance sheet.
The husband disputes that contention and maintains that there should be no value attributed to share portfolios.
The wife addresses this issue at [122] to [123] of her trial affidavit. There, she deposes that the husband held shares in Country D totalling a value of €103,500. In support of that position, she relies upon statements annexed to her affidavit at “[MJ]-15”. The difficulty with those documents is that they are written in Country D language and there is no translation of the documents.
In his trial affidavit at [67], the husband deposes as follows:-
[In mid] 2019, I sold some of the [LL Shares] I inherited from my father for €65,400.67. I then sold the balance of my shares [in late] 2019 for €39,291.57.
The husband also annexes to his trial affidavit documents which he contends support his assertions. Annexure “[MM]-3” to his affidavit is a bundle of documents he alleges are bank statements; again, the documents annexed and relied upon are in Country D language and there is no translation of the document produced.
Doing the best I can in circumstances where both parties are relying upon documents written in Country D language and for which there is no translation, but having regard to the admission made by the husband in his trial affidavit as to the value of shares sold by him, which total €104,691, I will include the sale proceeds at the amount contended for by the wife, being €103,500, which it is accepted converts to the sum of AUD $172,845.
Item 11 – Part property of the wife
The wife concedes that the sum of $308,800 ought be included in the balance sheet as part-property received by her. The husband asserts that the amount to be included for the wife’s part-property settlement is in fact $343,800. Accordingly, there is a difference of approximately $35,000 between the parties’ respective positions. The wife contends that she paid $35,000 back to the Business to assist with cash flow. The husband does not accept that position.
The wife’s position in relation to the payment by her to the Business was clear and she was not challenged in relation to that matter during her oral evidence. In all of the circumstances, I accept her evidence in relation to that payment.
Therefore, I will include the wife’s part-property settlement in the balance sheet at $308,800.
Item 15 – Wife’s CBA credit card
The wife contends that her CBA Credit Card liability in the sum of $22,677 should be taken into account as a liability of the parties. The husband rejects that contention. The wife maintains that that liability ought be taken into account in circumstances where she has been principally responsible for the support of the family since separation, and particularly so in circumstances where the husband has lived in Country D for extended periods post separation.
In circumstances where each of the husband and the wife have derived an income from the Business since their separation and further, where the wife admitted that she did draw additional sums from the Business from time-to-time to meet family expenses, I do not propose to include her personal credit card liability in the parties’ balance sheet. That view is bolstered having regard to the fact that the balance sought to be included as at August 2023 relates to a liability that has accrued some six years post-separation.
Item 19 – Legal fees relating to the alleged tenancy dispute and estate administration
The husband claims the sum of $62,092 as a liability related to the administration of his father’s estate. The wife rejects that claim in circumstances where the husband has adduced no evidence in support of his claim. The husband has not produced his father’s Will, or any documents relating to the administration of his estate or invoices from lawyers in relation the alleged tenancy dispute.
Accordingly, I accept the wife’s position; the alleged liability will not be included in the parties’ balance sheet.
THE ASSET POOL
Based on my findings, the parties’ legal and equitable interests for the purposes of the orders I am asked to make are as follows:-
Asset
Legal Title
Value
G Street, Suburb H
Wife
$1,890,000
J Street, Suburb K
Husband
$1,890,000
Country D commercial property
Husband
$212,034
Proceeds of sale of Suburb BB property
Husband
$126,920
Deposit on City M apartment
Husband
Nil
Proceeds of sale of Suburb F
N Pty Ltd
$960,998
R Company (the Business)
N Pty Ltd ATF Jung Meyer Family Trust
$1,091,000
Bank accounts (PP Financial Services #…29)
Husband
$417,500
LL Shares
Husband
$172,845
Add-backs asserted by husband
Wife
$159,564
Part-property
Husband
$234,236
Part-property
Wife
$308,800
Total Assets
$7,463,897
Liabilities
Income tax payable for years 30 June 2021 and 2022
Wife
$182,509
Income tax payable for financial years ended 2021 and 2022
Husband
$175,895
Capital gains tax payable on Suburb F
Husband
Wife
$146,000
$146,000
Total Liabilities
$650,404
Net Assets
$6,813,493
Superannuation
Superannuation Fund 1
Wife
Husband
$93,248
$70,439
Total Superannuation
$163,687
Net Assets inclusive of Superannuation
$6,977,180
SECTION 79(2) FACTORS
Both parties seek orders for the adjustment of their property pursuant to s 79 of the Act. There was no challenge to the proposition that it is just and equitable to make orders for the property settlement. Accordingly, in circumstances where the parties have shared a long marriage and it is agreed by them that they will no longer have the joint use and enjoyment of their interests, I am satisfied that it is just and equitable to make orders for adjustment of their interests.
CONTRIBUTIONS
It was common ground between the parties, and I accept, that neither the husband nor the wife had any assets of significance at the commencement of their long relationship.
It was also common ground that the parties’ contributions during their long marriage were equal. Both parties worked hard and contributed to the best of their abilities in their respective roles within the marriage.
For example, both parties worked to the best of their abilities in the establishment, growth and operation of the Business. Similarly, the marriage produced three children, and it is conceded that both parties contributed to the welfare of the family, albeit in different ways.
It is agreed that during the marriage, each party contributed to the acquisition, conservation and improvement of their interests and to the welfare of their family. Having regard to the concessions made by the parties in respect of their contributions during the marriage, I am satisfied that the parties’ contributions during the marriage ought be regarded as equal.
As to the contributions made by each following their separation, the wife contends that she has made significant post-separation contributions due to her ongoing support and care for the parties’ three children. She contends that the husband provided little assistance or support in the care of the children during the post-separation period. Further, the wife contends that she has been solely responsible for the conduct of the Business since 2021, which has benefited both parties.
The husband contends that he has also made significant post-separation contributions. He alleges that the assets held by him in Country D were inherited by him during the post-separation period and they are assets to which the wife has made no contribution (Bonnici v Bonnici (1992) FLC 92-272). On that basis, the husband contends that the assets held by him in Country D ought be quarantined from the parties’ joint balance sheet. It was further submitted on behalf of the husband that irrespective of whether or not those interests were as a result of an inheritance, the wife made no contribution to them.
The difficulty with the husband’s position in relation to the property held in Country D is that he has produced little independent evidence to support his claim that those interests arose from an inheritance from his father’s estate.
That issue is compounded in circumstances where the wife was not challenged in cross-examination in relation to her evidence at [66] of her trial affidavit that in 2007, some 11 years prior to the parties’ separation, the husband’s mother transferred to him her interests in the Country D commercial property and the Suburb BB apartment, resulting in him holding a one-half interest in each property in 2007. Absent independent evidence from the husband as to inheritances received by him from his parents’ estates, I accept the wife’s evidence.
In circumstances where the husband concedes the contributions of the parties during the marriage are equal, his claim, at least in relation to his interests in those properties, must fail.
As to the husband’s assertion that the inherited assets ought be quarantined in a separate pool to which the wife has no claim, the wife submitted that in order to establish that position, the husband first needs to prove his claim that the interests were in fact inherited. She maintains that he has not established that fact. Given the paucity of evidence produced by the husband as to the genesis of his Country D interests, as identified earlier in this judgment, I accept that submission.
Further, as a result of the husband’s failure to disclose source documents that might have supported his claim that the assets were inherited by him, it is impossible to assess the value of such inheritance and therefore, what weight, if any ought be attributed to it. That issue is compounded given the non-disclosure by the husband of documents and information that might otherwise have assisted the Court in calculating the value of those interests as at the time of trial.
The wife submitted that there does not need to be a nexus between contributions made and the interests that comprise the balance sheet. That the Court is required to consider all of the contributions of the parties, was confirmed by the Full Court in Dickons v Dickons (2012) 50 Fam LR 244 (“Dickons”). where it stated:-
[23]We wish also to refer to the approach of the federal magistrate in attributing percentages to differing periods within the relationship, or types of contribution made. There is in our view little to be gained, and much to be said against, approaching the task of assessing contributions by attaching percentages to components of it. (The same, it might be said, applies to attributing a percentage to each of the relevant s 75(2) factors).
[24]There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. 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). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
[25]Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “giving overzealous attention to the ascertainment of the parties’ contributions” (Norbis v Norbis (1986) 161 CLR 513 at 524; 65 ALR 12 at 18; 10 Fam LR 819 at 825; [1986] HCA 17) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
[26]The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
The desirability of adopting a holistic approach to the assessment of the parties’ contributions was later confirmed by the Full Court in Singerson & Joans [2014] FamCAFC 238. At [66] the Full Court observed:-
Section 79(4) of the Act is clear. There is nothing to suggest that any category of contributions needs to be quarantined and applied solely to particular assets. The court is mandated to look at the totality of what the parties have contributed in a financial and non-financial sense, including contributions to the welfare of the family and to the acquisition, conservation and improvement of assets. The court is required to evaluate the significance of all the various contributions to the property, notwithstanding there may be different categories of that property.
Given my findings in relation to the issues in identifying and quantifying any inheritance received by the husband due to his own failings in making full and frank disclosure, and having regard to the statements of the Full Court in Dickons and Singerson & Joans as to the desirability of adopting a holistic approach to the assessment of contributions, I am not persuaded that there is any basis for the quarantining of the Country D interests as sought by the husband, particularly in circumstances where I accept the wife’s evidence that he has held an interest in the Country D commercial property and the Suburb BB apartment since 2007. Rather, I propose to assess contributions on an holistic approach having regard to the asset pool as identified above.
I accept the wife’s evidence that as from 2007 the husband held a one-half interest in the Suburb BB apartment and the Country D commercial property as a result of a transfer of those interests to him by his mother. Accordingly, I accept that the husband acquired interests in those properties approximately 11 years prior to the parties’ separation. There is no evidence before the Court as to the value of those interests at that time.
In circumstances where it is conceded that both parties worked to the best of their respective abilities within the relationship, and that their contributions during the marriage were equal, I am satisfied that the wife has likely also made contributions which have supported the retention by the husband of his interests in those properties.
I am also satisfied that in the six-year period since the parties’ separation, the wife has made significant and ongoing contributions to the welfare of the family as a result of her caring responsibilities for the parties’ children, including their youngest child who is aged 16 years.
The children were aged 16, 14 and 11 at the time of separation. The wife has been primarily responsible for meeting the children’s expenses since separation, including the school fees associated with X’s attendance at her private school, to which as at the date of trial, the husband had made no contribution, notwithstanding that he had contributed one half of the fees for her attendance at her previous school, a Catholic school.
The children have lived with the wife throughout the post-separation period with little practical support from the husband, who has spent extended periods in Country D since separation. The husband has paid no child support since separation.
The husband was cross-examined as to his role in relation to the children’s care in the post-separation period. He conceded that X had spent no overnight time with him until she travelled to Country D in June 2023. Similarly, the husband conceded that all of the children had spent no overnight periods with him over the past two to three years, until their recent travel to Country D. The husband reluctantly conceded that the wife was the only parent living in Australia, where the children reside, and that as a result, it was she who was providing practical and emotional support to them.
I also have regard to the wife’s contributions in the continued operation of the Business, from which both parties have benefited through the receipt of income.
It is common ground that the husband’s father died in 2018. I accept that properties in which the husband’s father previously had an interest, for example the Country D Commercial property, are now held by the husband. That the husband’s father previously held an interest in the Country D Commercial property and the Suburb BB property is conceded by the wife at [66] of her trial affidavit. Accordingly, I accept that the husband’s interest in those properties is likely as a result of gifts and/or inheritances from his parents and are matters to be taken into account in the assessment of contributions, albeit that such assessment is constrained due to the husband’s failure to disclose documents or information evidencing on what basis he received those interests, when they were received or their value at the time of receipt.
Taking into account the myriad of contributions made by the parties in their respective spheres both during the relationship and post-separation, as identified above, in my view contributions ought be assessed in the proportion of 52 per cent to the wife and 48 per cent to the husband. That is a four per cent adjustment in the wife’s favour, which in dollar terms represents approximately $279,080 (based on a pool of approximately $6,977,000). That adjustment recognises the contributions of the wife both in respect of her ongoing care of the parties’ children in the six-year post-separation period with little assistance from the husband, coupled with her sole responsibility in ensuring the continued operation of the Business for the benefit of both parties.
SECTION 75(2) FACTORS
The wife is aged 51 years. She will continue to conduct the Business following the conclusion of these proceedings and will have the benefit of income from that source.
The husband is aged 56 years. Although he contended that he was unemployed, I am satisfied that the husband has been less than frank with the Court and that he has been engaged in employment in his role at MM Company since separation. Further I am satisfied that he has derived income from that source, albeit the extent of his income from that source is unclear due to his non-disclosure.
The question of the husband’s future employment upon the conclusion of these proceedings was a significant issue between the parties, it being the wife’s case that the husband has threatened that he will commence operation of his own business in competition with the Business to be retained by the wife. During cross-examination, the husband conceded that he may commence operation of another business. Further, the husband conceded during his oral evidence that he had told the wife that he had created the Business, that he would create another one, and that he had power and contacts to do so. The husband also conceded that he had said to the wife words to the effect that he would be in direct competition with her.
I am satisfied that the husband’s LinkedIn profile (Exhibit A1) accurately depicts the husband’s current position and role with MM Company. Having regard to his role at MM Company and his oral evidence as to threats made by him to the wife regarding his intention to establish his own business, I am satisfied that the husband will continue to work in the industry upon the conclusion of these proceedings; he conceded as much during his oral evidence.
The husband asserted in his trial affidavit that he has ongoing health issues that may affect his capacity to work. The husband deposes that he had a medical disease at age 18 and as a result, has a disability. The husband adduced no admissible evidence from his treating medical practitioners as to the impact of that condition upon his current or future capacity to work.
The reality is that the husband has continued to work in the Business throughout the parties’ marriage and since separation, has undertaken work for MM Company. The husband also conceded during his oral evidence his desire to open a new business in competition with the wife. Having regard to those matters, I am not persuaded that the husband’s previous health conditions impact his capacity to work and earn an income.
The wife will continue to have primary responsibility for the care of the parties’ youngest child, X, who at the time of trial was in Year 10 and has at least a further 18 months until she completes her secondary education.
The husband pays no child support to the wife for X’s care.
The wife submits that as a result of the husband’s non-disclosure in relation to his Country D interests, there ought be a further adjustment pursuant to s 75(2)(o) of the Act.
There is an obligation on all parties in property proceedings to make full and frank disclosure of their financial position (per Oriolo and Oriolo (1985) FLC 91-653; Weir and Weir (1993) FLC 92-338). That obligation is confirmed in Chapter 6 of the Federal Circuit and Family Court of Australia Rules 2021. The duty to make disclosure is absolute and one that continues throughout proceedings in this Court. As I observed during course of the hearing, this is a Court of “show and tell” rather than “hide and seek”.
I have already identified the non-disclosure by the husband in relation to the sale of the Suburb BB apartment, the purchase of the City M apartment, the husband’s entitlements under his late-father’s estate (if any), his sale of the LL Shares and his failure to disclose accounts held by him in Country D.
In addition to those matters, the wife relies upon the first Financial Statement filed by the husband on 13 May 2021 (Exhibit A5). At “Part I” of that document, the husband does not disclose his interests in the Country D commercial property, the Suburb BB apartment or any accounts held by him in Country D. Having regard to those matters, I am satisfied on the balance of probabilities that the husband has failed to make disclosure in relation to the nature and extent of his interests in Country D. That this was so, was conceded by Counsel representing the husband during her closing submissions.
As a result of the husband’s failure to make disclosure in relation to those interests, I am also satisfied that the wife has been put to significant additional expense in her attempt to identify and value all of the parties’ interests, whether in Australia or in Country D.
The Full Court in Chang & Su [2002] FamCA 156 helpfully summarised the relevant authorities in relation to non-disclosure and confirmed that it is open to a Court to take a more robust view to the adjustment of parties’ interests in circumstances where there has been non-disclosure, the effect of which has been to hamper the identification and value of the parties’ assets.
The issue of non-disclosure was contemplated by the Full Court in Stone & Stone [2015] FamCAFC 18. There, the Full Court was required to consider the Trial Judge’s adjustment of eight per cent in favour of the wife based upon s 75(2) factors. A significant aspect of that adjustment was based upon the husband’s non-disclosures which left the Court in doubt as to whether he had undisclosed assets, financial resources or income. The Full Court confirmed that the approach of the Trial Judge to take into account non-disclosure as a matter relevant to s 75(2) was correct, as such non-disclosure was relevant to the determination of future income and earnings, and also as to whether the husband had other assets undisclosed and undiscovered. The Full Court confirmed that the Trial Judge’s approach of providing “a hedge” against the husband having successfully concealed further assets or income was one open to him in the determination of the adjustment pursuant to s 75(2).
There is no doubt in this matter that the husband’s non-disclosure has frustrated the wife’s endeavours to identify and value the parties’ interests and has caused her to incur additional legal costs in the pursuit of those issues. Nonetheless, by the time of trial the wife was able to adduce sufficient evidence to support her contentions and satisfy the Court in relation to the values to be attributed to the Suburb BB property, the husband’s PP Financial Services account and the LL Shares. Given the inclusion of those items in the balance sheet, I am not satisfied that an adjustment pursuant to s 75(2)(o) is warranted as to those matters.
What is uncertain is the nature and value of the husband’s other interests (if any), including in the QQ Bank account and also as to his future earning capacity. I am satisfied that the husband has not been candid in relation to the QQ Bank account and has failed to produce documents which would likely have assisted the Court in relation to that issue. Accordingly, I am satisfied there ought be an adjustment, albeit not to the extent agitated for by the wife, to take into account the likelihood that there are other undisclosed interests; the documents produced by the wife in relation to the QQ Bank accounts bolster that view.
The wife’s Counsel contends that there ought be a 60/40 adjustment in favour of the wife, taking into account the s 75(2) factors, particularly:-
·Her ongoing responsibility to care for the parties’ youngest child;
·The likelihood of the husband establishing another business in competition with the Business to be retained by the wife;
·The effect of the husband’s persistent non-disclosure; and
·The uncertainty that the full nature and extent of his interests has not been revealed to the Court.
The husband seeks an adjustment in his favour due to what he contends is his uncertain employment prospects and his ongoing health issues. He also contended that the wife had not made disclosure in relation to her withdrawals from the Business accounts, albeit that those complaints were not seriously pressed in closing submissions. For the reasons set out above, I am not persuaded that there ought be any adjustment for those matters.
Having regard to the wife’s responsibilities to care for the parties’ youngest child, coupled with the potential impact of the husband’s future business interests on the Business and the identified non-disclosure by him, in my view justice and equity requires that there be an adjustment of 4 per cent in favour of the wife.
CONCLUSION
Having regard to my findings, both as to contributions and in relation to matters under s 75(2) of the Act, I am satisfied that a just and equitable result sees that the parties’ interests be divided in the proportions of 56 percent to the wife and 44 percent to the husband.
An adjustment in those terms results in the wife retaining assets valued at $3,907,221 and the husband retaining assets valued at $3,069,959. Hence, the wife will receive an adjustment in her favour of approximately $837,262.
Whilst the husband sought an equalisation of the parties’ superannuation interests, in circumstances where those interests are modest relative to the other interests held by the parties and there is a difference of less than $24,000 between the parties’ respective interests, in my view there is little utility or benefit to either party in making a superannuation splitting order; a division of the pool, including superannuation, will provide a just and equitable outcome, as between the parties.
The wife will retain assets valued at $3,542,612, comprising of:-
·G Street, Suburb H $1,890,000
·The Business $1,091,000
·Add-backs $ 159,564
·Part-property settlement $ 308,800
·Superannuation $ 93,248
The wife will also be responsible for meeting her income-tax liability ($182,509) and her share of the capital gains tax payable on Suburb F ($146,000), leaving her with property valued at approximately $3,214,103. From the proceeds of sale of Suburb F, the wife will be paid the sum of $693,118.
The husband will retain assets valued at approximately $3,123,974 comprising of:-
·J Street, Suburb K $1,890,000
·Country D commercial property $ 212,034
·Proceeds of sale of Suburb BB property $ 126,920
·Bank accounts in Country D $ 417,500
·Proceeds of LL Shares $ 172,845
·Part-property settlement $ 234,236
·Superannuation $ 70,439
In addition, the husband will be responsible for his taxation liabilities, being income-tax payable ($175,895) and capital gains tax in respect of Suburb F ($146,000), leaving him with property valued at $2,802,079. Accordingly, he will be paid the sum of $267,880 from the proceeds of sale of Suburb F.
Having regard to the circumstances of the case, I consider that orders giving effect to that adjustment provides for a just and equitable outcome as between the husband and the wife.
It was common ground between the parties that the Court should make injunctive orders regulating the husband’s conduct so as not to disrupt the operation of the Business. Whilst most orders were agreed, the husband did not concede that an order be made restraining his use of the email address used by him when working in the Business. Given my findings that the husband has made threats to commence a new business in competition with that to be retained by the wife, I am satisfied that the restraint sought by the wife is appropriate and I will make an order in those terms. The husband also sought restraints against the wife disrupting his business. In circumstances where that business has not yet commenced operation and there is no evidence of any conduct by the wife to interrupt the operation of such business, I am not satisfied that such orders as sought by the husband are appropriate.
The orders I will make, subject to submissions as to form, in particular with respect to the disbursement of the proceeds of sale of the Suburb F property, are as follows:-
Definitions
(1) For the purposes of these orders:
(a)The "[Suburb F] Property" means the real property situate at and known as [E Street, Suburb F] in the state of Victoria more particularly described as Certificate of Title Volume […] Folio […];
(b)The "[Suburb H] Property" means the real property situate at and known as [G Street, Suburb H] in the state of Victoria more particularly described as Certificate of Title Volume […] Folio […];
(c)The "[Suburb K] Property" means the real property situate at and known as [J Street, Suburb K] in the state of Victoria more particularly described as Certificate of Title Volume […] Folio […];
(d)The "[City M] Property" means the real property situate at and known as [L Street, City M, Country D];
(e)The "Commercial Property" means the real property situate at and known as [NN Street, Suburb OO, City M, Country D];
(f) The "Corporate Entities and Trusts" means:
(i)[N Pty Ltd ATF Jung Meyer Family Trust];
(ii)[N Pty Ltd ATF O Property Trust;
(iii)N Pty Ltd ATF Jung Unit Trust];
(iv) [P Pty Ltd ATF O Property Trust];
(v) [Q Pty Ltd];
(vi)[O Super Pty Ltd ATF Superannuation Fund 1];
(2)That all previous orders including order 5 of the orders made by this Court on 20 August 2021 be and are hereby discharged.
[Suburb F] Property
(3)The parties and each of them do all acts and things and sign all necessary documents to distribute equally to each of them the capital gain obtained by the [O Property Trust] arising from the sale of the [Suburb F] property.
(4)That the Husband and the Wife forthwith irrevocably authorise and direct [S Accountants], ("the Accountants") at their joint and equal expense, to prepare the taxation returns for the [O Property Trust] and, each of them personally, for the financial year ended 30 June 2023.
(5)The parties forthwith authorise and direct Lander & Rogers to release the remaining proceeds of sale of the [Suburb F] Property, being $960,998.07 plus accrued interest thereon, to be distributed as follows:
(a) Firstly, to pay to the wife the sum of $693,118;
(b) Secondly, to pay to the husband the sum of $267,880;
(c) Thirdly, as to the interest accrued thereon:-
(i) 56 per cent to the wife; and
(ii) 44 per cent to the husband.
Corporate Entities and Trusts
(6)The Wife be permitted to operate and make all decisions in relation to the day-to-day operation of the business trading as [‘R Company’] (conducted via [N Pty Ltd ATF the Jung Meyer Family Trust]) ("[R Company]"), to the exclusion of the Husband.
(7)That within 60 days of the date of these orders, the Husband do all such acts and things and sign all documents necessary to:
(a)Tender his resignation as an appointor, guardian, or substitute appointor of each of the trusts comprised in the Corporate Entities and Trusts;
(b)Tender his resignation as a director and/or secretary of each of the companies comprised in the Corporate Entities and Trusts;
(c)Transfer his shares (if any) in each of the companies comprised in the Corporate Entities and Trusts, to the Wife;
(d)Renounce all claims against, and relinquish all entitlements to, each of the companies and trusts comprised in the Corporate Entities and Trusts of whatsoever nature, including unpaid beneficiary entitlements and loan accounts (and any and all claims of the Husband personally);
(e)Renounce all claims against the Wife relating to the Corporate Entities and Trusts;
(f)Assign to the Wife all unpaid beneficiary entitlements he may have, consent to his removal as a beneficiary, and agree not to receive any future distribution from, any of the trusts comprised in the Corporate Entities and Trusts.
(8)That subject to the Husband’s compliance with orders 3, 4 and 5 hereof, the parties do all such acts and things to cause the [Suburb K] property to be removed as security held by the Commonwealth Bank of Australia ("CBA") over the following liabilities of [N Pty Ltd ATF the Jung Meyer Family Trust] and instead cause all security to be held over the [Suburb H] Property or as otherwise required by the CBA:
(a) The CBA Overdraft (account ending in […]41);
(b) The CBA Loan (account ending in […]34); and
(c) The CBA Guarantee.
(9) The Husband be restrained by injunction from:
(a)Doing any act or thing permitted to be done by the Wife pursuant to order 6 hereof;
(b)Taking any actions directly intended to materially and/or negatively impact on the business of [R Company];
(c)Enticing away or attempting to entice away employees, suppliers, contractors, or subcontractors of [R Company];
(d)Doing any act or thing to cause any contractor/supplier to cease transacting business with [R Company], including but not limited to […] contractors/suppliers in [Country D];
(e)Registering any company which include the words [‘Jung, ‘N Pty Ltd’, ‘R Company’ or related names] or any derivation thereof; and
(f)Using any email address formerly used by him whilst employed in the business of [R Company] including [...].
(10)Pending the Husband’s compliance with orders 3, 4 and 5 hereof the Husband be and is hereby restrained from increasing the mortgage or borrowings secured on the title to the [Suburb K] Property.
(11)The Wife personally and as a director of [N Pty Ltd] sign all documents and do all acts and things required to transfer to the Husband, at the expense of the Husband all of the interest of the said company in [Motor Vehicle 1] driven by him and the husband shall pay, as and when payments fall due all repayments owing under the lease to [T Finance] relating to the purchase of that vehicle.
Retention of items
(12)The Husband retain for his sole use and benefit absolutely, to the exclusion of the Wife:
(a)The [Suburb K] property;
(b)The [City M] Apartment;
(c)The Commercial Property;
(d)The part-property settlement of $1,890,000 received by him in accordance with the Interim Orders made on 18 May 2021;
(e)The sum of €50,000 applied by him to the purchase of the [City M] Property;
(f)His [U Shares] share portfolio;
(g)Any funds to his credit in any bank accounts in his name (including bank accounts held by him in [Country D]);
(h)His superannuation entitlements, subject to the provisions of these orders; and
(i)Any personal taxation liability accruing or accrued in his name.
(13)The Wife retain for her sole use and benefit absolutely, to the exclusion of the Husband:
(a)The business trading as [‘R Company’] and the Corporate Entities and Trusts;
(b)The [Suburb H] Property;
(c)The part-property settlement of $1,890,000 received by her in accordance with the Interim Orders made on 18 May 2021;
(d)Her [V] Shares;
(e)Her [digital currency] portfolio and investments;
(f)Any funds to her credit in any bank accounts in her name;
(g)Her superannuation entitlements, subject to the provisions of these orders; and
(h)Any personal taxation liability accruing or accrued in her name.
Indemnities
(14)Unless otherwise specified and contemporaneously with the Husband's compliance with all of his obligations pursuant to these orders, the Wife indemnify the Husband and keep him indemnified in relation to any liability of whatsoever nature and kind arising from his interest in the Corporate Entities and Trusts.
(15)The Wife indemnify the Husband and keep him indemnified in relation to the following:
(a)The mortgage registered on the title of the [Suburb H Property], in favour of the Commonwealth Bank of Australia;
(b)The repayment of loans provided by [Mr W];
(c)Any personal income tax liability; and
(d)Any funds owing in relation to her Commonwealth Bank […] credit card.
(16)The Husband indemnify the Wife and keep her indemnified in relation to the following:
(a)The mortgage registered on the title of the [Suburb K Property], in favour of the Commonwealth Bank of Australia;
(b)Any personal income tax liability; and
(c)Any other liability in his sole name including any liability attaching to any item of property being retained by him pursuant to these orders.
[Superannuation Fund 1]
(17)The Husband and the Wife sign all documents and do all acts and things required to roll out the Husband's member balance of $70,439 held in [Superannuation Fund 1] to a superannuation fund nominated by him in writing within 14 days of the date of these orders.
(18)In the event that the Husband refuses or neglects to advise the Wife of the name of the nominated superannuation fund the Wife shall be at liberty to pay his member balance to an industry fund of her choice and she shall forthwith advise the Husband of the superannuation fund to which that member balance has been paid.
Other
(19)Unless otherwise specified in these orders and save for the purposes of enforcing the payment of any monies due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all real and personal property (including choses-in-action) in the legal or beneficial ownership or possession of that party as at the date of these orders;
(b)Any monies standing to the credit of the parties in any joint bank account are to be divided between the parties equally, and the parties forthwith are to do all such acts and things as may be necessary to close any such joint bank account/s;
(c)All insurance policies remain the property of the owner named thereon; and
(d)Each party be solely liable for and indemnify the other with respect to any liability encumbering any item of property to which that party is entitled pursuant to these orders.
(20)Each of the parties do all things necessary and sign all such documents as are required by them individually or in their respective capacities as directors or shareholders to ensure compliance with the obligations imposed by these orders.
(21)The parties be at liberty to provide a copy of these orders to their bankers, in order to implement the orders herein.
(22)Any applications for costs arising from these proceedings be dealt with on the papers, with the party seeking costs to file and serve written submissions within 28 days of the date of these orders and any submissions in response to be filed and served within 14 days thereafter.
(23)All extant applications be otherwise dismissed.
IT IS DIRECTED
(24)That all documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the Subpoena Clerk of the Federal Circuit and Family Court of Australia, Division One, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.
I certify that the preceding one hundred and eighty-four (184) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 26 June 2024
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