KASUN & KASUN

[2020] FCCA 2505

FEDERAL CIRCUIT COURT OF AUSTRALIA

KASUN & KASUN [2020] FCCA 2505

Catchwords:
FAMILY LAW – Property – final hearing – oral decision – second marriages – wife had three children from prior marriage – both parties migrants – minimal assets at cohabitation – one child of marriage – assessment of contributions – husband’s use of matrimonial property post separation as “seed funds” for ongoing real estate purchases – documentary evidence of serious misrepresentations by husband to bank to obtain loan – husband is a solicitor – S.128 Evidence Act 1995 Certificate – duty of Court to refer papers – referral of papers to Law Society of NSW – referral of papers to Bank who extended loan.

Legislation:

Family Law Act 1975 (Cth), ss.75(2), 79, 81, 106A, 121

Evidence Act 1995 (NSW), s.128

Crimes Act1900 (NSW), s.192E

Cases cited:

Trevi & Trevi (2018) FLC 93–858

Peirce & Peirce (1999) FLC 92–844

Robb & Robb (1995) FLC 92-555

P & P [2003] FLC 93-161

Jabour & Jabour [2019] FamCAFC 78

Malpass and Mayson [2000] FamCA 1253

In the Marriage of P & P [1985] 9 Fam LR 1100

In the Marriage of Mallet (1984) 156 CLR 605

Biltoft & Biltoft [1995] FLC 92-614

Norbis & Norbis (1986) 161 CLR 513

Stanford and Stanford (2012) FLC 93-518

Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175

Applicant: MS KASUN

Respondent: MR KASUN

File Number: SYC 5874 of 2015

Judgment of: Judge B Smith

Hearing dates: 20 August 2020 & 21 August 2020

Date of Last Submission: 21 August 2020

Delivered at: Sydney

Delivered on: 24 August 2020

REPRESENTATION

Counsel for the Applicant: Ms Messner

Solicitors for the Applicant: Kevin O'Kane & Co

Solicitors for the Respondent: Mr Kasun in person self represented

ORDERS

1. Within three (3) calendar months of date of these Orders the Respondent Husband, Mr Kasun born in 1959 (“the Husband”), pay to the Applicant Wife, Ms Kasun born in 1962 (“the Wife”), the sum of five hundred and seventy-two thousand dollars ($572,000).

2. The Husband will within the same period as in Order 1, discharge or refinance the mortgage secured over the property at B Street, Suburb C (“B Street, Suburb C”) to Australia and New Zealand Banking Group Limited (“ANZ Bank”) so as to remove any liability of the Wife, and the Wife shall do all things reasonably required to facilitate the Husband’s compliance with this Order.

3. At the same time as the payment of the sum in Order 1 and as, or after, mutual compliance with Order 2, the Wife will execute all documents necessary to transfer her entire interest in B Street, Suburb C to the Husband.

4. In the event that Order 1 is are not complied with, for any reason, the parties shall each do all acts and things and sign all documents and authorities reasonably necessary to list B Street, Suburb C for sale by auction, such auction to take place no later than eight (8) weeks after the expiry of the three (3) month period.

5. For the avoidance of doubt in relation to Order 4, the parties:

   (a)Shall appoint an agreed real estate agent (“the agent”) to act on the marketing and sale of B Street, Suburb C, and in the absence of agreement as to the identity of the agent for a period exceeding seven (7) days after the three (3) month period, the parties shall approach the President for the time being of the Real Estate Institute of NSW and that person, or their nominee, shall select the agent, whom the parties will then appoint, with the costs of and incidental to such appointment to be borne equally by the parties as and when the same fall due.

   (b)Shall Instruct an agreed solicitor (“the solicitor”) to prepare a contract for the sale of B Street, Suburb C, and in the absence of agreement as to the identity of the solicitor for a period exceeding seven (7) days after the three (3) month period, the parties shall approach the President of the Law Society of NSW for the time being and that person, or their nominee, shall select the solicitor, with the costs of and incidental to such appointment to be borne equally by the parties as and when the same fall due.

   (c)Shall agree within seven (7) days after the three (3) month period upon a reserve price, or in the absence of agreement the reserve price shall be as nominated by the agent.

   (d)Shall execute all documents necessary to complete the sale of B Street, Suburb C.

   (e)Shall co-operate in every way with the agent including (without limited the generality of the foregoing):

   (i)Making the key available to the agent;

   (ii)Allowing the inspection of B Street, Suburb C at all reasonable times requested by the agent;

   (iii)Doing or saying nothing to hinder or prevent a sale being effected;

   (iv)Keeping B Street, Suburb C clean and tidy and presentable for inspection;

   (v)Each party may attend at and bid at the auction; and

   (vi)In the event that the bidding at the auction does not reach the reserve price, the parties may negotiate with the highest bidders or any other interested person and effect a sale of the property at a price agreed between the parties.

6. In the event that the sale of B Street, Suburb C is not effected at the auction pursuant to Order 4 hereof, the parties forthwith thereafter do all acts and things and execute all documents, instruments and writings necessary to submit B Street, Suburb C for sale by such further auction, or auctions, as may be necessary to effect the sale of the home, at such reduced reserve price as may be agreed between them and failing agreement at a reserve price of 5% less than the original reserve, and the provisions of Orders 4 and 5 above, and of this Order, shall continue to apply in like manner to such further auction, or auctions, until the property is sold.

7. Upon completion of the sale of B Street, Suburb C the Husband and the Wife shall do all acts and things necessary to direct the proceeds of sale to be paid in the following manner and priority:

   (a)In payment of agents’ selling commission and auction expenses;

   (b)In payment of the solicitors legal costs and disbursements of and incidental to the sale;

   (c)In payment of any amounts outstanding and charged upon the property by mortgage;

   (d)In payment of any outstanding rates or other expenses that run with the land;

   (e)In payment of $572,000 to the wife; and

   (f)In payment of the remainder of the balance (if any) to the Husband.

8. If the amount provided to the Wife pursuant to Order 7 is less than the amount set out in Order 1, the Husband will pay any shortfall to the Wife within twenty-eight (28) days of the completion of the sale of B Street, Suburb C.

9. If the Husband fails to comply with Order 8 and the full amount in Order 1 has not been paid to the Wife, the Wife has liberty to approach the Court urgently for the making of further machinery provision Orders to sell further items of property owned by the Husband or such other Orders as are necessary in order to give effect to these Orders.

10. Pending settlement of the sale of B Street, Suburb C, the Husband shall continue to pay rates, water rates and taxes and electricity charges in relation to B Street, Suburb C and indemnify the Wife and keep her indemnified from and against claims in respect of such payments.

11. Except as otherwise provided for in these Orders the Husband and the Wife are each entitled and declared to be, as between themselves, the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, and personal effects currently in the possession and/or control of each of them respectively, as well as of their respective superannuation entitlements.

12. Any party who seeks a costs order is to file and serve an Application in a Case and supporting affidavit within twenty-eight (28) days of the date of these Orders, and absent the filing of such an Application each party is to bear their own costs.

13. In the event that either party fails, refuses or neglects to sign any documents or to execute any deed, instruments or writings necessary to give effect to these Orders, then the Registrar or other officer of the Federal Circuit Court is hereby appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) as amended, to sign any document or execute the required deed, instrument or writings necessary to give effect to these Orders instead of the party in default, and the defaulting party shall be solely liable for all costs, charges, expenses, debts and liabilities arising from the operation of this Order and the defaulting party shall indemnify and keep indemnified the other party in respect of such costs, charges, expenses, debts and liabilities.

14. The Registrar of the Court is directed to refer to the Law Society of NSW a copy of these Orders, the Reasons for Judgment, pages 61 to 78 of the Wife’s Court Book, the husband’s evidence relevant to those pages, and the associated certificate pursuant to section 128, and to provide to the Law Society of NSW such other information from the Court files as they may request, for the purpose of the Law Society of NSW considering whether the Husband committed offences in his dealings with the ANZ Bank, or in his giving of evidence about those transactions, inconsistent with his obligations as the holder of a practicing certificate.

15. The Registrar of the Court is directed to provide to the proper office of the ANZ Bank a copy of these Orders, the Reasons for Judgment, pages 61 to 78 of the Wife’s Court Book, the husband’s evidence relevant to those pages and the associated certificate pursuant to section 128, and to provide to the ANZ Bank such other information from the Court file as they may reasonably request, for the purpose of the ANZ Bank considering whether they wish to take any action, including investigating further for themselves the events referred to, and/or making a complaint to police or prosecuting authorities if they believe it is warranted.

16. The ANZ Bank is bound by section 121 of the Family Law Act 1975 (Cth) except to the extent necessary to investigate the circumstances of the alleged conduct and to refer the matter to police or prosecuting authorities.

IT IS NOTED that publication of this judgment under the pseudonym Kasun & Kasun is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5874 of 2015

MS KASUN

Applicant

And

MR KASUN

Respondent

REASONS FOR JUDGMENT

1. These are oral reasons for decision in a final hearing in respect of applications for the alteration of property interests heard before me last week.  I have determined that the issues are sufficiently narrow and, noting that the case is five years old, sufficiently urgent that it is preferable for me to provide oral decisions now, rather than to put the matter in a list of matters awaiting time when a written decision can be prepared and provided.

2. The applicant in the proceedings is the wife.  She was born in 1962 in Country D and is now 59 years of age.  She migrated to Australia in 1994 with her first husband.  She was working as a health care worker. 

3. The respondent husband in these proceedings was born in 1959, also in Country D, and is now aged 61 years of age.  He also migrated to Australia in 1994, and he was also previously married and divorced.  He was, when they met, working as a professional while studying law.

4. The wife has three children from her former marriage, Ms E, the eldest daughter, born in 1988 and now 32, Ms F, born in 1991 and now 29, and Mr G, born in 1995, and now 25.  The parties met in about 2003, according to the wife, or 2004, according to the husband.  The wife believes that they were together for approximately two years before they married.  The husband thought they met, perhaps, sometime in 2004, but nothing turns on this.

5. The parties decided to get married, and they set a date for 2005.  In the month before they got married, they purchased a property at B Street in the suburb of Suburb C in Sydney. That was purchased in 2005.  This is variously referred to in the evidence as "B Street, Suburb C" or "Suburb C".  The parties married in 2005, and commenced cohabitation with the parties and the wife’s three children, who moved in together to the former matrimonial home at Suburb C.

6. About a year later, almost to the day, in 2006, the parties had the one child of the marriage, X.  X, having been born in 2006, is now almost 14 years of age, and she lives with the mother. 

7. The husband qualified as a solicitor after his extensive studies in 2010.  As I understand it, he has continued to work both as a professional and, to some extent, as a solicitor.  He holds current practising certificate, and in his financial statement describes his occupation as a solicitor and professional.

8. He was advised by the court, in as strong terms as are allowed, both at the mention setting the matter down for hearing on 6 November 2019 and at the compliance check for hearing on 20 July 2020, at which stage the court had had an opportunity to read the affidavit material, that a solicitor should not act for himself or herself in this kind of litigation.  The husband did not heed that suggestion and has represented himself.  That has had some unfortunate consequences, which I will refer to later.

9. The parties finally separated on either 20 or 22 April 2011, the date is not relevant, and that was after five and a half years of marriage.  They were finally divorced on 19 November 2015.  On any view this was a relatively short marriage. 

10. The applicant wife commenced these proceedings seeking an alteration of property interests.  There are no parenting proceedings before the court, and it appears those matters have been dealt with between the parties.

11. The wife’s initiating application was filed on 7 September 2015.  The husband's response was filed on 30 September 2015, and the reply to the response was filed on 1 April 2016.  No updating pleadings have been filed but, nevertheless, the parties proceeded based upon the submissions they made and the orders they sought at hearing.  I note that the wife's orders sought were relatively similar, even five years later, to those she sought at the time of filing.

12. While this was a relatively high conflict piece of litigation, which has taken five years to get to hearing, there were, in the eventuality of the case as it ran ultimately, very few disputes about the primary facts.  The major disputes were about the proper interpretation of and application of the law to those facts.  It is in that context that I considered it most appropriate, again noting the age of the proceedings, to provide oral reasons rather than leaving it to provide written reasons.

13. We will start with the property of the parties which, fortunately, despite some difficulties across the course of the hearing, the parties were able to agree upon.  The parties provided exhibit B during the hearing which sets out the extensive real property holdings, in particular of the husband. 

14. I also note that the wife's assets include a half interest, as tenant in common with her eldest daughter, of a property at H Street, Suburb J, with her half interest being worth $350,000.  Her bank accounts were agreed at $9,231.  She has a car which, it was agreed, had a value of $20,000.

15. Then, of course, there is the former matrimonial home, either B Street, Suburb C or Suburb C.  The parties agreed that that had a value of $900,000 subject to a mortgage.  For present purposes, given the way the parties approached the case, I am dealing with that as invited to by the parties as if each party shall be treated as owning half of the property, even though they are joint tenants.  So that if one attributes to her that $450,000, then her total assets are $829,231.

16. The wife brought to the marriage, which I will come to later, an interest in a property in Country D.  The value of that property at the time was difficult to determine, but that interest was subsequently valued at $41,000 and she received that $41,000 post-separation.  The wife has given $30,000 of that money to and between her three children, and the parties agreed, pursuant to the principles in Trevi & Trevi, that this was matrimonial property which has been prematurely disposed of by the wife to her children, and that it should be dealt with as to $30,000 of the $41,000, as a premature distribution.  I think that is appropriate and, therefore, it was included, as to the $30,000, as addbacks for the wife.

17. The other $11,000 is dealt with as moneys which have been received post-separation and used in the normal course of life.  I think that is not inappropriate, as it is approximately one-quarter of that asset.  The wife's liabilities were agreed to be as to one half of the mortgage over H Street, Suburb J, as I will call it, and her one half liability is for $165,000.  Her one half liability for the mortgage over Suburb C or B Street, Suburb C is $137,500.  She also has other liabilities which are agreed, which relate largely to the car of $23,563, giving her total liabilities of $326,063.  The wife's superannuation was agreed at $73,342. 

18. Taking all those matters into account, the total assets plus the addback, plus the superannuation, less the liabilities, gives the wife, at present, a net positive asset position of $606,510. 

19. Then applying the same approach to the husband's agreed assets, he has a property at K Street, Suburb L with a value of $470,000;  a property at M Street, Suburb N, located in New South Wales, with a value of $520,000;  a property at O Street, Suburb P with a value of $700,000;  a property at Q Street, Suburb R with a value of $110,000;  a property at S Street, Suburb T, Queensland with a value of $190,000;  a property at U Street, Town V worth $165,000;  a property at W Street, Town X worth $110,000;  a property at Y Street, Town Z, Queensland worth $150,000;  and a property at AA Street, Suburb BB, Victoria worth $150,000. 

20. He also owns four different units, at CC Street, City DD, Queensland which are valued, respectively, at $70,000; $70,000; $130,000; and $26,000.  He also has the half interest, similar to the wife's, in B Street, Suburb C worth $450,000 and it was agreed he had $2,000 in bank accounts.  That gives the husband total gross assets, excluding superannuation, of $3,313,000.  There were no addbacks pressed for by anyone in respect of the husband.

21. I note no reference was made to addbacks in respect of legal fees.  That was not raised before me, so I do not deal with it.

22. I note that the husband's liabilities are, as I understand it, there's a cross‑collateralisation on a variety of the loans, but in addition to his half of the B Street, Suburb C loan, which is $137,500, he also has loans of $801,000; $534,000; $150,745; $98,440; $78,258; and $36,819.  He also has credit card debts of $8,078 and $13,640.  That gives total liabilities to the husband of $1,858,480.  The husband's superannuation is $1,000, noting that he had superannuation that, given his age, he was able to access, and has used that to invest in his real property portfolio, so there is no issue of early distribution of that money as it is accounted for elsewhere in real property.

23. Taking into account the husband's total assets, the absence of addbacks, and his superannuation, less his liabilities, the husband's net position, including superannuation at the moment, is $1,455,520. 

24. It can be seen that the husband, therefore, when one looks to the total assets, the total assets equal $4,142,231.  The total addbacks are $30,000.  Total superannuation is $74,342.  Total liabilities are $2,184,543, for a total net position, including superannuation, and I note the parties ran the case on the basis that superannuation should be included, the net position, including superannuation is $2,062,030. 

25. In broad terms, the husband currently has something like 70 per cent, or just over 70 per cent of the net assets and superannuation, and the wife has around 30 per cent.  Those are the property interests of the parties.  I do note that the husband raised the issue of whether or not the wife had an additional equitable interest in the H Street, Suburb J property.  I will come to the facts around that in due course. 

1. But it seems to me that, for the purposes of determining the parties' legal and equitable interests, where required and pursuant to the ordinary principles of the common law in equity, that she only has a legal half interest in the property, and in the mortgage over the property at H Street, Suburb J. I will consider the husband's argument under the concept of it potentially being also a financial resource. 

2. Those are the parties' property, and existing equitable and legal interests, as I find them, which are as the parties agreed to, fortunately. 

3. Now, we then come to the question of contributions.  And, again, the factual issues were not significantly in dispute around most things.  The wife's evidence, which was not challenged, was that when the parties met, she was living in a Housing Commission house with her three children, and the husband was living in a room in a share house.  He was working as a professional and studying law.  She was employed in her health care work.  It was agreed by both parties that neither party was in a position to obtain a loan to purchase a property, given their own assets and single income. 

4. They jointly decided that they wished to purchase a matrimonial home, and both agreed that they were able to do so only because they had two incomes and because they both contributed such initial sum as they had.  So, in the event, the parties jointly obtained a mortgage and purchased B Street, Suburb C in their joint names.  Even though I have dealt with their interests as if several to find current percentages, they in fact, both own jointly B Street, Suburb C, and are both jointly liable for the mortgage.  So the parties purchased B Street, Suburb C in 2005 for $460,000. 

5. The purchase was funded by $32,000 cash from the husband, $11,000 from the wife.  The parties got the First Home Owners grant of $7,000 that was then on offer.  The wife contributed $3,000, effectively, in cash or kind from her parents.  This was, in fact, a loan that was later repaid, but it would appear that it was not showing as a loan for banking or lending purposes.  So the husband's $32,000, plus the wife's $11,000 and $3,000, which was $46,000, gave them the $46,000 deposit. 

6. As I have said, they then had the First Home Buyers loan.  They got a mortgage from ANZ Bank for $405,141.85, and the letter from ANZ of 26 July 2005 indicates that there was $10,425.25 in fees.  There was some dispute factually about what the husband's contribution was.  In his first affidavit, he said he contributed $35,000.  That was at paragraph 5.  In his second affidavit, at paragraph 16, he said that he contributed $37,000 plus credit cards, using credit cards.  In his oral evidence, he agreed that those funds, in the material he provided, furnished material, that it was $32,000 plus a credit card debt, which is what I base my findings on. 

7. I note the wife had a car.  I understand the husband does not drive and has never had a car.  The car was later sold for $4,600 and this was contributed to the household, so that was the wife's contribution.  She also had some furniture and furnishings.  The wife also had what appeared to have been an inchoate interest in a property in Country D which was subject to other interests.  But, as I have indicated, that was recently converted to cash in the sum of $41,000 and has mainly been distributed to others, so I do not give much, if any, weight to that asset which stood outside the family's finances and which was, ultimately, given away primarily to the wife's children, excluding the child of this marriage, when it became an available asset.

8. Now, I note that the husband has sought to argue that his credit card debt was an initial contribution, but I do not accept that.  It was debt which was used to acquire the property which was paid off by the husband during the relationship, just as the loan from the wife's parents was paid off, and just as the ANZ mortgage was paid off.  That kind of debt I do not think is relevant in that respect.  So, in summary, when the parties commenced cohabitation and purchased B Street, Suburb C, the husband contributed $32,000 and the wife contributed $11,000.

9. Between them, they managed to get loans from the wife's parents, the ANZ Bank, and whichever bank was providing the husband's credit card debt.  She also bought in a car worth $4,600 and some furniture.  As I have noted, I do not give any weight at the moment to the Country D property, given how that was dealt with and how it occurred.  So in those circumstances, the husband made the greater financial contribution.  It is not clear whether the husband is arguing, as he does in submissions, that his “overwhelming financial contribution” included the initial contribution, or was only because he was the one who was primarily working and paying off the mortgage.

10. But to the extent to which he was arguing that he made the overwhelming initial financial contribution, so that implicitly the principles in Peirce & Peirce would apply, I reject that argument.  While he brought $32,000, she brought $11,000, the car which they were able to use and worth $4,600, and some furniture and furnishings.  Given the value of the mortgage against the value of the property, and the now-value of the property, whilst he made a greater contribution, the contributions were not significantly disproportionate in my view.

11. I also note that it was then agreed broadly that the husband worked as a professional, and he also studied for his law degree which allowed him to be admitted in 2010. He primarily paid the mortgage during the marriage.  That, of course, was the mortgage for a family of six, since they had to buy a house for them and her three children.  He said he paid the water rates, council rates, insurance payments and about 90 percent of the groceries and telephone bills, and he said he did the lawns and the gardening.

12. Now, the wife, as agreed, worked full time in the job she had.  I note that she was not in a highly paid job, but it was in the mid‑$20,000s per annum at the time of cohabitation. But she worked full time and contributed her money until she went off on maternity leave not quite a year after marriage.  It was agreed that she then returned to work part-time for a period.  There is a dispute where, in fact, the husband says the wife was doing more paid work than the wife said, which may raise some interesting questions, but not sufficiently interesting to involve the Commissioner of Tax.

13. Apparently, she was running an informal child care arrangement where she took care of X while she also provided care for neighbours and friends, in effect, since she had to be at home to look after their child.  She may have taken some cash payments to look after others.  As I have said, the husband, in fact, seems to be saying that she was earning and bringing in more than she says she was.  But, in any event, she, during that period of time, the first year or two after X's birth, primarily cared for their child.

14. I think there is no doubt that she was the primary carer for the child, and then she returned to full-time work exercising her own capacity.  Indeed, the husband sets out what he says her work history was at paragraph 11 of his first affidavit, including health care worker at Employer EE, and at Employer FF, doing work at the former matrimonial home, and knowing that she brought in the Family Tax Benefit.  There was, apparently, some rent from the Country D property, and she was receiving some child support from her first husband, although it appears that that may have been quite intermittent.

15. The wife's three children lived with the parties, and there is no doubt, a la Robb & Robb, as the husband submits this was his contribution. She had a legal obligation to care for them. He took on her children. Now, he gave evidence, at paragraph 17 of his affidavit, that he assisted the children by purchasing a mathematics study aid which they studied for only one week which seemed to have upset him. He gave them $200 each for Christmas as gifts, bought mobile phones for the two daughters; bought a sewing machine for the second daughter; took the stepson to the SCG twice to watch the cricket. He purchased air tickets for the eldest daughter using his credit card, although it is not clear whether she repaid him; gave them pocket money frequently, and purchased presents during birthday parties.

16. He was also paying the mortgage and rates on a house that was sufficient for six, rather than the three people it might otherwise have been.  The wife acknowledges that this is a contribution by the husband, she says perhaps of two percent, but I will come to that later.  I think it is a more significant contribution.  I note that the wife said that she did know that the husband was very busy working full time, and there is no criticism of him for that, and also studying to improve his prospects by becoming a solicitor.

17. Again her evidence about that was not to suggest, as I understand it, anything other than that he was a very hardworking man.  But rather, that while he was doing all of that work and studying, as a consequence, she looked after the house.  She did the domestic chores, except for the lawns and gardening, which the husband said he did, at paragraph 18 of his affidavit, and which, as I understand it, was not significantly in contest.  The wife says that she in a relatively traditional way, having had a child, while he was out working and also studying in his spare time, did such work as she could and exercised her earning capacity to the full extent she could. This was consistent with taking care of a baby and then a toddler until she was able to go to preschool, taking care of the house, and also acknowledging that some substantial part of the time was spent looking after her own children.

18. The husband put that issue in dispute. His position was that the non‑financial contributions were more equal.  I note that I prefer the wife's evidence on this issue, firstly because it seems more inherently probable, given the husband was fully engaged in work and also studying, and also because while, frankly, there was no issue in respect of which the wife's credibility was seriously or successfully challenged, there was a significant challenge to the husband's credibility in respect of certain issues relating to an ANZ loan and mortgage which I will deal with below.

19. I note that there were other non-financial contributions to assets.  It was agreed the wife painted certain parts of the inside of the house and that she provided some carpet, but all of these things were in the ebb and flow of the relationship. 

20. I am comfortably satisfied that each party exercised their earning capacity to the extent they could, and contributed their monies to the relationship. This is subject to the time the husband spent studying, and the fact that the wife had to spend some of her monies and time on her own children, but that otherwise she was diligent in exercising her capacity in carrying out the domestic and household duties and contributing to the family.

21. One of the significant issues that the husband raised was that the wife told him that she believed, and in fact, she agreed, that she would pay for one week a month of the mortgage payments when they were buying the house.  He said that in fact, she only paid that sum on two occasions, and then she ceased paying it because she said she did not have enough money to pay it.  When asked whether he wished to run a case of waste, he specifically denied that, and that was quite appropriate.  As I have said, the wife was earning an income in the mid-$20,000s which is set out in the husband's material.

22. There were two adults, and she had three of her own children.  She was not earning a large sum of money.  There was no suggestion of waste.  It just turns out that she was earning about $500 a week, and she was not in a position to effectively pay an entire week's income once every month.  Now the husband's submissions on this point are indicative of the approach to the litigation he has taken.  His submission is that, at the husband's submissions, aide‑mémoire at page 2, number 2:

    Wife wilfully deceived husband by promising to pay one week (in a month) mortgage payment, and reneged from that commitment two months into matrimony.

23. He also says that I would find the wife agreed to that, and I do not have any difficulty with finding the wife may have agreed to that.  But he said that “Husband would not have embarked on the purchase” if she had not made that representation.  Further, stating the “wife's behaviour had a discernible impact on husband's behaviour”, citing P & P [2003] FLC 93-161 or [2002] FamCA 164.

24. Dealing firstly with the factual substrate on the evidence before me, there is no basis for any submission that the wife engaged in deceptive behaviour.  He knew she was living in a Housing Commission house.  He knew she had three children who she was legally liable to and, in any event, would support.  He knew what she was earning.  He knew that her worldly assets were $11,000, a car, some furniture, and an interest in some Country D property which, at that time, she could not sell.

25. He knew what the mortgage repayments were.  He can be taken to have some idea of what food and other matters cost for the wife and three children.  He knew all of the relevant facts.  The fact that she said or may have said that she hoped she would be able to, or she intended to pay one-quarter of the mortgage is quite believable.  But to suggest that with him knowing all these things, that she wilfully deceived him is, in my view, an untenable and unsustainable argument.  Secondly, this is a marriage and not a commercial relationship.

26. The suggestion as I understand it from the father's submissions, is that her failure to be able to meet those payments not only during the first year of the marriage but on his case, as I understand it, even after she stopped work because she gave birth to their child and then had to care for their child, was akin to a case of commercial deception which would disentitle her to bring proceedings or else would substantially reduce her entitlement.  I think there is no merit whatsoever to that argument.  This is not a commercial contract case.  This is a marriage.

27. He knew exactly how much she was earning and what her obligations were, and that she was hoping to be able to contribute a certain amount of money to the mortgage.  But the reality is there is no suggestion of waste, and to the extent to which she could after she met the costs of her own children, there is no suggestion she did not contribute all of her earnings to the welfare of the family.  I think this is a very concerning submission and, unfortunately, is indicative of the way the case appears to have been run on behalf of the husband.

28. I have also taken the opportunity to look at P & P, and I cannot see the relevance of that authority on this case.  He appears to relate it to the fact that there was a discernible impact on behaviour.  It may be that one of the parties' psychological issues had an impact on the other party's behaviour, but I can see no rational basis on which that case can be relied upon or should have been cited. 

29. To the extent to which the husband says he would not have purchased the former matrimonial property if he had known the wife could not pay her quarter, if he had not purchased the former matrimonial property, which was used to build all of the rest of his capital wealth as considered later, there is no evidence that he would have been anywhere near as well off as he is now.

30. So even if she deceived him, and made life difficult for him for a period of time because he had to work harder and pay more money, he suffered no financial loss from it.  I note that is not actually relevant in this case, but even if it was a commercial case, there would be significant difficulty in establishing any loss due to this alleged disentitling conduct. 

31. I also note that it is very concerning that the husband did not appear to distinguish between the period before and after their own child was born.  The suggestion that somehow this was like a commercial contract where even though she could not work because she had had their child, she was bound to keep paying money she had agreed to pay, and that the having of the child made no difference to that, again, is a very concerning submission.  The fact that the husband is a solicitor and has made those submissions is a matter of concern to me.  The husband also submitted that he has made the overwhelming financial contribution to the purchase of the former matrimonial home on that basis.

32. His primary position, until oral submissions, was that there should effectively be no orders that she should keep what is hers, which is about 30 per cent, and he should keep what is his, which is about 70 per cent.  He varied that a little in final submissions which I will come to later.  But the essence of the argument which he repeatedly made was about making the overwhelming financial contribution.  That can only be to say that the wife's contributions, to the extent to which they largely involved contributions to the welfare of the family, including their child, and the running of the house and doing the domestic chores, should be given little or no weight.

33. Again, it appears that the husband, contrary to the provisions of section 79, and also contrary to authorities such as Jabour & Jabour [2019] FamCAFC 78, says we should look only, or primarily, to who brought the money in, and since he was bringing the money in, or most of it, and she was only taking care of their child, and taking care of the house and the family, that she is entitled to very little. That is in strict contradiction of, and completely inconsistent with the provisions of section 79 of the Family Law Act which bind me, as interpreted by the Full Court and the High Court, which require me to look at the various contributions, and which do not treat the income earner as the person who has made the real contribution while dismissing, as of little worth, the contributions to the running of the household and, in particular, to the care for young children which is or can be in its own right, a full-time job.

34. As I said, this was a short marriage, and there is no doubt that in short marriages the way in which the myriad of contributions are considered takes that into account, and principle is not varied, but takes into account the length of the marriage. 

35. If in fact, this had been a case where the husband brought into the marriage the house with a substantial amount of equity in it, then his submissions might have made sense, but on the facts before me, they do not make sense.  Apart from the husband's clear contribution to the care, welfare and support of the wife's three children, this was a marriage with a relatively standard allocation of duties and contributions between a primary income earner and a secondary income earner who has had the child, and who has taken on the care of the child and of the household.

36. Now after separation the husband remained in the former matrimonial home and paid the mortgage, but also had the sole use and occupation of the former matrimonial home which he used not only to live in, but also for his business, and he may have received some tax benefit or tax deduction for the mortgage payments by using the house for his business, quite legitimately.

37. He also had between $90,000 and $92,000 in cash accumulated entirely during cohabitation, which he then utilised for his own benefit investing in real estate, which has led him, until now in the always upward-rising Sydney property market, to have the assets he has.  But his capacity to enter into the investments was, it appears, solely dependent upon, or at least largely dependent upon the $90-92,000 in cash, and the ability to use the former matrimonial home for what he agreed was “seed money” and security, but obviously he did then use his own income as well.

1. On separation, the wife had $15,000.  I note she had said in her affidavit originally that she had no money, but she conceded before the case started that, in fact, she had $15,000 and she had used that money. I do not accept that there was any attempt at deception on her part.  Now, after separation, she and her three children and the child of the marriage were in rented accommodation until she joined together with one of her daughters to purchase a property at H Street, Suburb J in 2012.

2. Her purchase she said and I accept, came around in the same way and for the same reason as the wife and husband had joined together to formerly support the purchase of the former matrimonial home.  The wife's evidence, which was not challenged in any substantial way, was that on her income alone with her assets she would not have been able to purchase a house.  But her daughter who, by then, was also working was able to join with her and, by making a joint application on both incomes and both of them being liable, they were able to purchase the property at H Street, Suburb J.

3. They purchased this as tenants in common and have been equally liable for the mortgage.  The reality of course, is that the daughter has since moved out, and the mother has paid most of the mortgage payments, probably the majority of them, and her daughter no longer lives there, so that the suggestion was that in fact the mother has perhaps some equity in the daughter's interest, but that case was not fully developed.  I do not think there is sufficient material or submissions before me to make such a finding, which is why I have made the finding in respect of property above.

4. I also note that to the extent to which the mother has paid most of the mortgage payments, she has also had the benefit of the property to herself since the other daughter moved out, and for the benefit of her younger siblings for whom the daughter who purchased the property is not legally liable in any way and is at law, a third party as the husband was.  So in the same way that the party who has sole use and occupation post-separation and pays down the mortgage equivalent to rent, the mother, although she is paying not only her half of the mortgage but the daughter's half of the mortgage, has also had the benefit of the sole use and occupation.

5. It is in the usual way not likely that the mother will inherit from the daughter, and it is hard to know what the daughter's position may be. It may be that this should be considered, in some way, a small financial resource, and I will keep that in mind when I come to the question of section 75(2) factors later.

6. Post-separation each party has worked.  Now, as I have said, the husband agreed that he used the $90-92,000 as seed money to then start purchasing properties.  He agreed that $90-92,000 was accumulated and saved entirely during the marriage.

7. He gave a reason why it was not paid off the mortgage, which was to do with fixed mortgage rates, and that is reasonable, but there is no doubt these savings were joint matrimonial property. 

8. His purchase of the first properties, which were then used to buy further properties, was only able to be carried out in the way it has been by the use of that $90-92,000.  Further, he was living in the former matrimonial home, and he appears to have used that house as security in a way, not necessarily strictly as security by way of mortgage, but by saying that it was rented out.

9. I note that the husband was cross examined on his application to ANZ, one of the applications to the ANZ Bank, which is set out at pages 61 down to 78 of the wife's court book.  I note the husband was given a section 128 certificate in respect of this.  I also note that I raised, at the start of the hearing, the fact that there was a serious allegation that he obtained financial benefit by deception being made against him as a solicitor and that he should consider that.  Nevertheless, the husband continued to represent himself and was cross examined.

10. The document at page 61 of the wife's court book is headed ANZ Mobile Lender Diary Note, and it was for a loan in an amount of $560,000.  Whether that was granted or not, I am not sure, but it was to refinance an investment property.  Now, it has the note:

    Background:  Clients still continue living on parent’s property.

11. And, significantly with that, when it looked at the sources of income, it said, “rental income” and it noted four properties which the husband gave evidence he had purchased from October till July 2013, as I understand it, but it also includes B Street, Suburb C:

    B Street, Suburb C verified from lease agreement provided.

12. The husband was given a section 128 Evidence Act Certificate and required to answer, as I consider this issue relevant to the question of contributions, and since it related to the former matrimonial home being used in order to acquire the additional real properties post separation which the husband says the wife has no right to any share in the profit or equity of.

13. The husband agreed that contrary to the note that has been taken to, which suggested that he was getting rental income from the former matrimonial home, he agreed that he was not leasing out that property. 

14. He was then taken to items at page 62 and, in particular, 63 of the wife's court book which referred to the supporting documents.  At that stage, he said he had an income of $70,000 per year.  He was taken to page 64, and I note that on page 63, there are some errors including the suggestion that he was entitled to the entire equity in B Street, Suburb C, but it is hard to believe the ANZ Bank was misled by that because they would have seen that there was a co-owner.

15. But we then come to the more concerning documents which seem to support the husband's statements that he was getting rental income from the former matrimonial home.  At page 64 of the wife's court book, there is a document that says:

    To Whom It May Concern

    This is to confirm that Mr Kasun, DOB 1959, our son lives with us.  He does not pay any board or lodging to us.

16. As I understand the father's evidence, this document was signed by his mother and his father.  When asked whether he asked his parents to sign it, he said “no”.  When asked why they signed a document which appears to have been false, in support of his application for a loan, suggesting that he was living with them and not paying board when that was not the truth, he prevaricated and sought to evade the question.  He said effectively:

    The overall loan was arranged by the agent, and he liaised with my younger brother, as to how it came about, I am not aware.

17. He said he did not give the document to the bank.  The agent gave it to the bank.  He denied that he gave it to the agent or the broker.  He said they liaised with his parents.  He was unable to answer why his parents would have provided a document in support of a false statement in his loan application without any involvement on his behalf.  I consider that his answers in that regard were most unsatisfactory and probably untrue which is concerning.  Even in the context of a section 128 certificate, the husband had an obligation, having been granted that certificate, to answer honestly.

18. At page 65 there was a standard form of residential tenancy agreement in respect of the former matrimonial property, which purports to lease the property from 15 March 2013 to 15 March 2014 for $650 a week.  It says that it is in effect a lease to his parents, consistent with the document I have just referred to at page 64.  When the husband was asked about that question, he said the lease "may not be the truth".  He denied the signature on the document was his.  He was asked whether the witness, Mr GG, was his brother.  He agreed "yes".

19. He was asked whether Mr GG forged his signature, and he said he did not know who forged it.  He certainly could not provide any answer as to why his brothers would forge a lease document in support of an application for him for a loan supporting the story he had given to the bank for a loan.  He said:

    I don't want to comment.  I don't think it's helpful

20. I consider that most unsatisfactory evidence.  Quite simply then, looking at the document which is also at 68 and 69, also a standard form of residential tenancy starting on 1 August 2015 and going to 1 August 2017 for $620 a week in respect of B Street, Suburb C, similar issues arise, and similar evidence was given in respect of the signatures. 

21. For a solicitor to have engaged, as I am comfortably satisfied from his first admission that he did, in the conduct of obtaining financial benefit by deception, possibly within section 192E of the Crimes Act 1900 (NSW) must, firstly, impact upon my assessment of his credibility in this case and it does.

22. Secondly, the fact that whilst given a section 128 certificate he then, in my view, gave most unsatisfactory and almost certainly dishonest and possibly perjurious evidence, also significantly impacts my assessment of his credibility.

23. So although there were very few factual disputes, to the extent to which there were factual disputes around domestic duties, as I have said, I find that I would prefer the wife's evidence, noting that there was no serious challenge to her credibility.

24. As I indicated at the start of the case to the husband, and as I indicated during submissions, I think that the findings I have just made falls within the serious range.  Decisions such as Malpass and Mayson [2000] FamCA 1253 and In the Marriage of P & P [1985] 9 Fam LR 1100 talk about the discretion to refer papers, and the fact that that is always a question of degree, but they also make it clear that where the court identifies serious misconduct, the court has a duty to bring that misconduct to the appropriate people or authorities.

25. Given that the husband is a solicitor, I think that I am bound by a duty to direct the Registrar to refer the matter to the Law Society of New South Wales and/or to the Legal Services Commission to investigate whether the husband has engaged in obtaining financial benefit by deception, and also to consider whether he may have perjured himself in giving evidence before me, even when given a certificate pursuant to section 128 of the Evidence Act 1995 of the Commonwealth.

26. I am not sure if the police will be interested in this after this period of time.  It is hard to know.  The husband in his evidence has said, "Well, have you sent it to the bank?" and suggested that if people were concerned they should tell the ANZ.  I think that is true.  I think it is appropriate.  In those circumstances, I think that it is also appropriate to direct the Registrar, rather than sending the matter to the DPP or the police, to direct that a copy of this judgment and the papers and orders go to the proper officer of the ANZ Banking Corporation.  If ANZ believe that they have been the victim of a criminal offence, they are well placed to make a complaint to the DPP or such other appropriate authority. 

27. Now coming back to the substance of the case, there is no doubt that as well as the $90,000, the husband, by telling the bank that he was receiving rental income from the former matrimonial home, was able to obtain credit which allowed him to purchase these additional properties.  And to that extent, he has used matrimonial property as a substantial factor in his ability to build up the net equity he now has in other properties.

28. I note moving on, that there was a dispute about the husband's contribution to maintaining the parties' child post-separation.  While he clearly made some financial payments, the analysis by counsel for the wife which I accept suggests that these contributions would have been in the range of about $88 per week, and the husband did not seek to disagree with that.  That was a contribution by way of before and after school care, and some school costs, and some one-off payments.  There is now, from 2020, a Child Support Agency finding, which translates to about $509 per month or $161 per week and half the school fees.

29. The child has not spent overnight time with the father for two years, and it appears unlikely that that will change, given her age.  It is clear that the mother has had the majority of the burden, both financial and personal, of caring for the parties' child post-separation.  The mother submitted that the parties are both in good health. 

30. The husband, even with the referrals I am obliged to make and which I note the wife said she did not press for as she does not wish to damage the father's relationship with child, but which as I have said I think have a positive duty and no choice but to make, the wife says that even with that, he is likely to have a higher earning capacity, as I understand it, because he makes most of his money as a professional and from his real property portfolio, not as a solicitor.  The husband did not submit against that. 

31. The wife said otherwise that given that he has no issues with his health and they are of similar ages, he has a higher income capacity, and he will have more property even given the orders she proposes, and that there is no issue of the physical and mental capacity for appropriate gainful employment.  As I have said, she is likely to have the care and control of the child of the marriage for another four years, and will be still substantially responsible for her financial needs as well as all of her personal needs and for housing her.

32. There is no issue in terms of the commitments necessary to support each party although, as I have said, there is a child of the marriage.  There is no issue about an eligibility for a pension or allowance.  There is no issue of each party being able to maintain a reasonable standard of living, given the orders the wife proposes under which, I should note that she gets 42 percent rather than the 30 percent that she currently has of the net assets.  There is no issue about maintenance. 

33. The husband raises the effect on creditors, I will come to that in his submissions.  But I cannot see how that is relevant, given that on the wife's proposed orders, he will still have 58 percent of the net assets and a very substantial amount of money.  There is no suggestion that the orders she makes will affect his solvency or capacity to meet his debts. 

34. In terms of the extent to which a party has contributed to the income earning capacity, property or financial resources of the other party, the husband studied law and earned his law degree.  He was admitted as a solicitor in 2010 and the wife supported him in that, but I have already dealt with that in effect, because of the way submissions were made in respect of contributions.

35. I will also note that it appears that he is making most of his money as a professional, and that is a plus or minus given the risk that he may not be able to work as a solicitor shortly. 

36. As I said, it was only a short marriage.  The wife, to some extent, relies upon the need to protect the continuation of her parenting role, but I do not accept that there would be any inability of her to continue that role absent the orders she seeks, although certainly the orders she seeks will make it easier for her, given that I accept she will have the overall financial responsibility for the child.

37. The husband relies upon the financial circumstances of the wife’s son who is still residing with the wife.  He is 25 now.  It does not appear that he is paying board, although he should be.  The wife says she wants to help him financially so he can get his own property and leave, and that is not an unreasonable position to take.  In any event, she says he is now seeking full-time employment and should leave soon, but I will note that he may be able to provide some support.  I will take that into account to some extent. 

38. I note the child support obligation, and what I would consider are the facts or circumstances. 

39. Now noting those matters, starting from the wife's point of view, she says that weighing all of those factors, in terms of contributions, that her contributions were, I think, on a very moderate basis, a submission she said 40 per cent to the husband’s 60 per cent.  As I said, she made that, and again I say, in my view, quite moderate submission based on the husband’s slightly larger initial financial contribution, the fact that the husband did make a real contribution caring for the wife’s three children across that period of time, and noting that although he used the seed money and the former matrimonial home to obtain loans to do all the property portfolio he subsequently built, nevertheless, he still had to work hard and expend effort, skill and income in doing so.  As I have indicated, I think that that is a very moderate submission by the wife in those regards.

40. In respect of the section 75(2) factors, she points to the fact that she is going to have the primary financial domestic ongoing care for the parties’ child and I accept that, although I note there is a child support assessment that is likely to be met. I also note that she has pointed out because of negative gearing and his interest in buying properties, the husband’s assessable income can suddenly fall and apparently has in the past as he increases his asset purchasing.

41. As I have said, she says the husband has a greater earning capacity.  I note his income statement.  I note the next financial statement.  I note that he says his total weekly salary and wages are $752 but I have some concerns about that, noting what I have said about the credit findings I have made. 

42. He says she has a higher income but I am just not satisfied that I know the true position there and in that regard I rely upon what I have said about the husband’s dishonesty with dealing with ANZ and his subsequent dishonesty, in my view, when giving evidence to me even where given the section 128 certificate.

43. The wife also says on the orders she proposes he will have more assets than she does.

44. She says that taking all of those things into account that the parties’ property interest would be adjusted so that she receives 42 percent and he receives 58 percent. I will note that I think that is a very moderate approach by the wife, but it would not be appropriate for me, I think, given the wife is represented by a very experienced, very sensible counsel who has doubtless considered all of the factors, including what might happen in another place if the submission goes too far, it is not for me to go above that.

45. The husband’s written submissions were difficult to follow, when in addition to the claimed perception dealt with above.  Looking at his submissions rather than case summary.  At item 2 on page 2 he relies upon a failure to give full and frank disclosure and also the same point at 3.  That was not raised with her and there is no evidence before me to support such a submission. 

46. He has relied upon the fact that it is a short marriage.  I take that into account.

47. He relies upon at 5, that he says the wife’s predominate expenses were directed to the step-children.  He relies upon Robb & Robb.  As I have said, the wife’s counsel frankly acknowledges that and is one of the significant factors that she says justifies him getting, in effect, 16 percent more than the wife. 

48. He relies at paragraph 6 that the wife’s claim that half of H Street, Suburb J belongs to the second daughter:

    Absent any systemic and continuous mortgage payments be rejected.  There is no evidence to support the second daughter paying mortgage payments.

49. I reject that submission.  The daughter is a legal owner and I do not consider that this was a fabricated position.  The wife had $15,000 and said she could not get a loan with only $15,000 and her income. I accept that as entirely plausible and I accept as entirely plausible the fact that she purchased the property with the daughter because the daughter had started working and by bringing the two incomes together they were able to get a loan.

50. I will consider that as a potential financial resource if there is a possibility the daughter might consider that she should provide something to her mother, but I do not accept the submission as it is made. 

1. He relies upon at paragraph 7:

   Wife’s refusal to help husband at a time of need – wife’s callous and insensitive behaviour.

2. He relies upon again P & P referred to above and in the context of this case, again I do not see the relevance of that material. 

3. At paragraph 8 he relies upon whether the court should make any property split orders on the basis that the wife suggested that they buy a house.  The wife promised to pay a week’s mortgage.  The wife reneged from that commitment.  The wife stipulated the expense pattern.  The wife and husband had savings at separation.  No litigation was initiated for four years after separation, although the wife’s lawyer’s letters were written three years after separation. 

4. I do not see any of those being relevant.  I do not accept her failure to be able to pay one week per month of the mortgage is relevant.  I do not understand what he means “wife stipulated the expense pattern”.  They both had savings at separation, yes, but he had $90-92,000 and she had $15,000, and there is some dispute about whether that was hers or his.  It does not make any difference whether he gave it to her or not.  He had $90-92,000 and she had $15,000.  They did not have equal savings.  He did not give her half or enough to make it half.

5. I note point 9 of the husband’s submissions, that he says the balance sheets and other documents provided by the wife’s solicitor grossly exaggerates the husband’s financial resources and a lack of any evidence.  I do not give any weight to any of that. 

6. At paragraph 10 he says the wife’s financial statement omits her son’s contribution.  I do note that I will take into account the fact that her son might well have been contributing something to her financial position and paying the mortgage. 

7. He also complains that the wife’s bank statements do not have payments of bills, council rates and water rates.  I do not see how that is relevant.

8. He also says in his submission at 11:

   Husband is aware of family law branching off to other areas: taxation.

   a. Husband is willing to provide any explanation.

   b. In his affidavit of 31 March 2016 the husband stated that Mr HH assisted to obtain the loans.

9. I do not understand this or how any of that is relevant. 

10. And submission 12:

    Overwhelming contribution by husband – financial and non-financial what wife ought to have paid – In the Marriage of Mallet (1984) 156 CLR 605 – supported by affidavit evidence-voluminous.

11. I give no weight to that submission other than that I take into account the facts and relevant legal principles.

12. He also relies at submission 13 on what he says were his overwhelming contributions towards improvement compared to the wife’s limited contributions to improvements.  There is no evidence to support that. 

13. He relies upon his payments of childcare at $509 a month and half school fees.  And that:

    In the long term, daughter benefits from husband’s property profile.

14. I note that I take into account his childcare payments and half school fee payments from 2020 and his payments prior to that. 

15. The fact that the daughter may inherit his property is no basis upon which to not make an adjustment favourable to the wife.

16. At paragraph 15 he relies upon:

    Effect on the creditor’s – Husband has numerous loans.

17. He cites Biltoft & Biltoft [1995] FLC 92-614. I do not understand how that is relevant in this case. The husband will still have substantial net equity after the orders proposed by the wife.

18. At paragraph 16 he relies upon:

    Wife never asked for a property from husband’s profile to be transferred to her name, considering Court has widespread power to do so.

19. I do not understand what that submission means and give no weight to it.

20. The next item, paragraph 17:

    Wife striving to obtain a “third dip” – wife failed to pay mortgage payments, saved money, and now seeks a property settlement order based on half the proceeds from the possible sale of the matrimonial home.

21. I give no weight to that statement.  The facts are the facts.  That is not a legal submission.  That is merely an unhappy person trying to justify why he should get what he wants.

22. The next submission was 18:

    It is unclear whether wife has been acting on the premise that any matrimony will entail a fifty-fifty split of the property.

23. I give no weight to that submission, which I do not in any event fully understand. 

24. Next, number 19 the submission is:

    Difficulties of a global approach due to husband’s loans.

25. He cited Norbis & Norbis (1986) 161 CLR 513. Again, I do not think it is relevant. I do not think this is a case in which you can have an asset by asset approach given that the husband used the $90-92,000 which he had saved during the matrimony rather than paying off the mortgage or using it for the parties’ benefit, whereas the wife could only save $15,000. He also used his occupation of the former matrimonial home to obtain loans in order to build the rest of his property portfolio. It is clearly not possible to disentangle that subsequent property portfolio from the matrimonial assets, which the husband used to acquire them.

26. And paragraph 20:

    Wife one-sidedly altered the parenting orders for monetary gain?  Husband submits, taken cumulatively, no property split order be made, whether it is just and equitable?  Wife actually very early in the marriage apparently for the sake of her children from the first marriage – Stanford & Stanford Early Start?(2012) FLC 93-518.

27. That has been the husband’s position until oral submissions, as I understand it, that each party should retain their own interest and no more.  I do not understand that there was any evidence that the wife altered the parenting orders for monetary gains in evidence before me that was reliable.  So those are the husband’s submissions.

28. In oral evidence the husband said that he would need to get some advice before making submissions.  I was not willing to adjourn the case, which, as I have indicated, is almost exactly five years old, so that the husband could go at that point and seek some legal advice. 

29. The wife firstly should not be made to wait any longer.  And secondly, I have, as I pointed out at the time, something like 350 cases in my docket of which at the moment something like three years’ worth of them are ready for hearing dates, and I am hearing cases that are four and five years old.  To adjourn this case would have involved bumping another case and other people also, and pursuant to the principles in AON & ANU, they cannot be asked to have their cases not heard because I need to part hear a case because someone who is a solicitor has chosen to represent himself despite the court firmly suggesting on a number of occasions that it may not be wise.

30. I note that the husband had other submissions about facts and that most of it refers to the evidence and otherwise I have considered them. 

31. Now, finally, the husband said, “Well, perhaps the wife should get an allocation to her of $150,000.”  

32. So in summary, when one looks at the position, there is an agreed total net asset pool, including superannuation, of $2,062,030.  The husband has $1,455,520 of that, just over 70 percent, and the wife has $606,510, or just on 30 percent.

33. Both parties, as I understand it, want the husband to have the former matrimonial home. I will just indicate that, considering the initial contributions as well as the financial and non-financial contributions and the non-financial contributions to property throughout the relationship, also looking at the post separation contributions and noting my reasons above, I am comfortably satisfied that the wife’s contributions up to hearing are at least 40 percent, as submitted by the wife. On one view, I think they might be closer to 45 percent, but in any event, I think that they are comfortably 40 percent for the reasons set out. I think the relevant section 75(2) factors are as indicated above.

34. I think the wife is going to end up with the substantial care of the child. I do not think that the orders I make are going to have any impact on earning capacity in a real sense because, as I understand it, the husband did not make submissions to the contrary, and it appears most of his income in fact comes not from being a solicitor but from his professional work and from his property portfolio. Although I give a little bit of weight to the possibility he will have a reduced income, but I have indicated I am not entirely satisfied that I know what his income is. In those circumstances, I think the section 75(2) factors favour the wife by at least 5 percent.

35. In my view, for those reasons, whilst on one view it is a fifty-fifty case, I think it would be inappropriate for me to make an adjustment to the wife greater than the adjustment the wife seeks.  She is well advised and well represented.

36. In those circumstances, I find that it will be appropriate, just and equitable that an order be made adjusting the parties’ property interest pursuant to section 79 of the Act so that the wife has 42 percent and the husband 58 percent of the parties’ net assets and superannuation. I note that these orders are intended, pursuant to section 81, to determine and end the financial relationship between the parties.

37. In order as to how best do that, as I understand it, it is best that the husband have the former matrimonial home.  He wants it.  She does not.  He is living in it.  Now for the wife to have 42 percent, then she needs to have net assets, including the superannuation of $866,052.60, which means that there will need to be an adjustment in her favour of that figure minus her current $66,052.60 minus her current allocation of $606,510, which is a total of $259,542.60. 

38. The suggestion is by both parties, as I understand it, that the husband takes over the mortgage on the former matrimonial home and acquires all of the equity of the former matrimonial home.  Now if that happens, he will have as a starting point $1,768,020 and the wife will have $294,010 in equity and superannuation.  So for that to happen, to balance it out, the wife would then need to have an additional sum based on the $866,052.60 minus $294,010, which equals $572,042.  I note that is very similar to the wife’s application for a payment to her of $575,000, noting that the final figures were not actually determined in the balance sheet until during the hearing.

39. As I have said, I am comfortably satisfied that the wife would be entitled to at least that and this is an appropriate way of achieving that result.  In those circumstances, I propose to make orders in accordance with my reasons, which are largely based upon the wife’s proposed minute of order, modified so that it is consistent with what I found.

40. Those are my reasons.  Those are the orders I will enter. 

41. The wife has sought costs.  Whilst based on the facts she has a prima facie entitlement, it is not appropriate for me to make any order about costs without having delivered a judgment, and then having provided the parties with an opportunity to address on costs. 

42. Any party who seeks a cost order is to file and serve an Application in a Case and a supporting affidavit within 28 days of the date of these orders.  Absent such an application being filed each party will pay their own costs.  Those are my orders.

I certify that the preceding one hundred and fifty-four (154) paragraphs are a true copy of the reasons for judgment of Judge B Smith

Associate: 

Date: 17 September 2020