Keech & Keech
[2023] FedCFamC2F 51
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Keech & Keech [2023] FedCFamC2F 51
File number(s): PAC 2297 of 2019 Judgment of: JUDGE MYERS Date of judgment: 23 January 2023 Catchwords: FAMILY LAW – Property orders. Legislation: Child Support (Assessment) Act 1989,
Family Law Act 1975 (Cth), ss 4B, 75(2), 79
Cases cited: Kennon and Kennon [1997] FamCA 27 Division: Division 2 Number of paragraphs: 81 Date of last submission/s: 23 August 2022 Date of hearing: 9-11 August 2022 Counsel for the Applicant: Mr Shaw Solicitor for the Applicant: Hal Ginges & Co Counsel for the Respondent: Ms Rebehy Solicitor for the Respondent: Benetatos White Solicitors ORDERS
PAC 2297 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KEECH
Applicant
AND: MS KEECH
Respondent
order made by:
JUDGE MYERS
DATE OF ORDER:
23 JANUARY 2023
THE COURT ORDERS THAT:
1.Within 42 days of today’s Orders, the Respondent Wife is directed to do all acts and things, and execute all documents necessary so as to transfer to the Applicant Husband the Respondent Wife’s interest in the property situated at and known as B Street, Suburb C, NSW being the land comprised in Folio Identifier … (“the Suburb C property”), upon payment to the Respondent Wife of $290,882.25 from the Applicant Husband.
2.Pending transfer of the Respondent Wife’s interest in the Suburb C property, the Applicant Husband shall be responsible for all payments and outgoings in relation to the Suburb C property incurred prior to the date of such transfer, and shall indemnify, and keep the Respondent Wife indemnified, in respect to those outgoings.
3.The Court directs that both parties shall, simultaneously with the implementation of the above Orders, do all acts and things, and sign all documents necessary so as to distribute the funds currently held in the controlled monies account, managed by Benatatos White, (who act for the Respondent Wife in the proceedings) to the Keech Family Trust (“the Trust”) of which Keech Family Pty Ltd is Trustee to the intent that those monies be paid to the Applicant Husband.
4.Simultaneously with the due implementation of the foregoing Orders, the Respondent Wife shall do all acts and things, and sign all documents necessary, as are presented to her by the Applicant Husband, to give effect to the following transactions to be entered into by the parties in relation to the Trust:
(i)The Respondent Wife shall cause to be transferred her shares and interest in Keech Family Pty Ltd to the Applicant Husband (or his nominee) and simultaneously, the resignation from all offices and positions in Keech Family Pty Ltd.
(ii)The Respondent Wife shall cause to be transferred to the Applicant Husband (or his nominee) the Respondent Wife’s interest and units in the Trust.
(iii)The Respondent Wife shall collaborate with the Applicant Husband, and sign all documents necessary, so as to remove the Respondent Wife as Appointer and Beneficiary of the Trust.
(iv)The Applicant Husband shall procure for the Respondent Wife a release from any liability pursuant to mortgages, financial facilities and charges in relation to Keech Family Pty Ltd and the Trust.
(v)The Applicant Husband shall, at the same time, indemnify and keep the Respondent Wife indemnified in respect of all liabilities in relation to Keech Family Pty Ltd and the Trust, whenever and however arising, including but not limited to taxation liabilities of the Trust.
(vi)As between the parties, the Applicant Husband shall thereupon become solely entitled to all interests in Keech Family Pty Ltd and the Trust.
5.Within 14 days of today’s Orders, the parties shall do all acts and things, and sign all documents necessary, so as to close the two Commonwealth Bank accounts numbered …03 and …04, and the proceeds of such closure (should there be any), are to be divided equally between the Applicant Husband and Respondent Wife.
6.That in accordance with section 90XT(1)(b) of the Family Law Act 1975 (Cth):
(i)The Applicant Husband is entitled to be paid the base amount of $33,205 from the Respondent Wife’s interest in the Fund;
(ii)The Respondent Wife’s interest in the Fund is correspondingly reduced by force of this Order; and
7.The Applicant Husband and Respondent Wife, in their capacity as Directors of the Corporate Trustee, shall do all such acts and things, and sign all documents necessary, that may be required to:
(i)Calculate, in accordance with the requirements of the Act, the entitlement created in Orders 6.2 of these Orders; and
(ii)Pay the entitlements wherever a splittable payment becomes payable;
(iii)Direct the accountant of the Fund to lodge any documentation required, and notify the Australian Taxation Office, of the intention to roll out the Respondent Wife’s interests in the Fund; and that the Applicant Husband shall become, and remain, the sole Director of the Corporate Trustee of the Fund;
(iv)That Order 7.3 has effect from the operative time, and such operative time is the date upon which the benefits in the Fund are transferred to the Applicant Husband;
(v)Upon completion of the transfer of the superannuation benefits as hereinbefore provided, the Respondent Wife shall, within 14 days, do all things and acts necessary so as to facilitate the rollover of her superannuation entitlement in the fund to another complying superannuation fund, and sign all documents required to resign as Director of the Corporate Trustee and relinquish any position held by her, as well as to transfer to the Applicant Husband all of her shareholding in the Corporate Trustee.
8.Simultaneously with the Respondent Wife’s compliance with the foregoing Orders, the Applicant Husband shall do all acts and things necessary so as to indemnify, and keep indemnified, the Respondent Wife in relation to any and all liabilities, including claims, actions, suits and/or demands of whatsoever nature arise out of, or in connection with, the Fund.
9.Subject to the preceding Orders, the Applicant Husband shall retain all interest in and entitlement to:
(i)The property located at and known as D Street, Suburb E;
(ii)The Motor Vehicle 1;
(iii)The Motor Vehicle 2;
(iv)The Motor Vehicle 3;
(v)The Motor Vehicle 4;
(vi)The Applicant Husband’s shareholding in L Pty Ltd;
(vii)All personal property currently in his possession or control;
(viii)All shares, debentures, units and unit trusts, bank, building society and/or credit union accounts standing in his sole name;
(ix)Any interest in life insurance policies standing in his sole name;
(x)All right, title and interest in any companies he has at the date of these Orders;
(xi)All interests in the Fund, and any other superannuation entitlements which he may be entitled to.
10.Subject to the preceding Orders, the Respondent Wife shall retain all interests and all entitlement to:
(i)The apartment located at and known as F Street, City G, Country H;
(ii)The Motor Vehicle 5;
(iii)All personal property currently in her possession or control;
(iv)All shares, debentures, units and unit trusts, bank, building society and/or credit union accounts standing in her sole name;
(v)Any interest in life insurance policies standing in her sole name;
(vi)All right, title and interest in any companies she has at the date of these Orders;
(vii)All other superannuation entitlements which she may be entitled to.
11.In the event that the Applicant Husband fails to pay to the Respondent Wife the sum of $290,882.25, pursuant to Order 1, the parties will do all act and things, and sign all documents necessary to cause the property known as B Street, Suburb C, NSW being the property contained in Folio Identifier … (the Suburb C property) to be listed with an agent, to be agreed upon by the parties, for sale by public auction, with a reserve price to be agreed by the parties, but failing such agreement, at a reserve price to be nominated by the auctioning agent, and such auction of the property shall occur no more than eight weeks from the date of listing, unless sold prior, and the proceeds of sale shall be applied as follows:
(i)in payment of all agent’s commission and auction fees on sale;
(ii)in payment of legal and all other proper costs of sale;
(iii)in payment of the sum of $290,882.25 to the Respondent Wife together with interest payable on such sum at the rate prescribed by the Family Law Act Rules and Regulations calculated from the date which is 42 days from the date of these Orders until the date of completion of the sale of the property;
(iv)in payment of the balance to the Applicant Husband.
12.In the event that the Suburb C property does not sell by public auction in accordance with Order 11, then the property shall be submitted for sale by private treaty, and the property shall be resubmitted for sale by public auction at three-monthly intervals from the last public auction, and be resubmitted for sale by private treaty between such auctions, until the property is sold, and upon such sale, either by public auction or private treaty, the proceeds of sale shall be applied as provided in Order 11 above.
13.In the event that the parties are unable to agree as to an agent to act on the sale of the Suburb C property, or as to a listing price or reserve price for the sale/auction of the property, then the Respondent Wife is hereby authorised to request the President of the Real Estate Institute (NSW) to nominate an agent to act on the sale in and the parties shall do all acts and things, and sign all documents necessary so as to cause the nominated agent to act in relation to the sale of the Suburb C property.
14.The Applicant Husband is directed to cooperate with the agent to facilitate the sale of the Suburb C property, and shall maintain and present the property in good order to maximise the sale price, and shall be responsible for payment of all outgoings and expenses for the property, and shall maintain full insurance on the property at all times.
15.That should either party neglect to do all acts and things and sign all documents necessary to give effect to these Orders within 21 days of a written request to do so, a Registrar of the Federal Circuit and Family Court of Australia is hereby appointed, pursuant to section 106A of the Family Law Act 1975 (Cth) to sign such documents on behalf of the relevant party.
AND THE COURT NOTES THAT:
A.In relation to K Pty Ltd (ACN …) (“the Corporate Trustee”), which is the Corporate Trustee of Keech Family Superannuation Fund (“the Fund”) of which the parties are Directors, the parties warrant that the Corporate Trustee has been afforded procedural fairness in relation to the superannuation splitting Order set out in today’s Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Keech & Keech has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
ORAL REASONS FOR JUDGMENT
MYERS J:
This is a final property decision in the matter of Keech & Keech.
The applicant Husband seeks orders as contained in the amended minute of order that the Husband tendered in Court as follows:
(1)That within 7 days of the date of these orders the respondent wife do all acts and things and execute all documents necessary to transfer to the applicant husband the wife’s interest in the property situated at and known as B Street, Suburb C, NSW, being the land comprised in Folio Identifier … (“the Suburb C property”) at the cost of the applicant husband upon payment to the respondent wife the sum of $217,000.00.
(2)Pending transfer of the wife’s interest in the Suburb C property the husband shall be responsible for all payments and outgoings in relation to the Suburb C property incurred prior to the date of such transfer and shall indemnify and keep the wife indemnified in respect to those outgoings.
(3)That the parties shall simultaneously with the implementation of the above orders, do all acts and things necessary and sign all documents required to distribute the funds currently held in the controlled monies account managed by Benatatos White who act for the wife in these proceedings which monies are the property of the Keech Family Trust of which Keech Family Pty Ltd is Trustee to the intent that those monies be paid to the applicant husband.
(4)Simultaneously with the due implementation of the foregoing orders the respondent wife shall sign all documents presented to her by the applicant husband to give effect to the following transactions to be entered into by the parties in relation to the Keech Family Trust
(a)A transfer by the respondent wife of her shares and interest in Keech Family Pty Ltd to the applicant husband or his nominee and simultaneously resign all offices and positions in Keech Family Pty Ltd.
(b)Cause to be transferred to the applicant the wife’s interest and units in the Trust or at his direction to his nominee.
(c)Collaborate with the applicant husband to remove the respondent wife as Appointor and beneficiary of the Trust.
(d)Simultaneously with the foregoing the applicant husband shall procure for the respondent wife a release from any liability pursuant to mortgages, financial facilities and charges in relation to Keech Family Pty Ltd and the Trust.
(e)The applicant husband shall at the same time indemnify and keep the respondent wife indemnified in respect of all liabilities in relation to Keech Family Pty Ltd and the Trust whenever and however arising including but not limited to all taxation liabilities of the Trust.
(f)As between the parties the applicant husband shall thereupon become solely entitled to all interests in Keech Family Pty Ltd and the Trust.
(5)Order that within 14 days of these orders the parties shall do all acts and things necessary including signing all documents required for this purpose to close two Commonwealth Bank accounts numbered …03 and …04 and shall divide the proceeds equally between the applicant husband and respondent wife.
(6)In relation to K Pty Ltd (ACN …) (“the Corporate trustee”) which is the Corporate Trustee of Keech Family Superannuation Fund (“the fund”) of which the parties are Directors, the said parties warrant that the Corporate Trustee has been afforded procedural fairness in relation to the superannuation splitting order set out hereunder.
(7)That in accordance with section 90XT(1)(b) of the Family Law Act 1975 (“the Act”):
(a)The respondent wife is entitled to be paid the base amount of $111,000.00 out of the applicant husband’s interest in the Fund;
(b)The applicant husband’s interest in the Fund is correspondingly reduced by force of this order; and
(8)The applicant wife and respondent husband in their capacity as Directors of the Corporate Trustee shall do all such acts and things and sign all such documents that may be required to:
(a)Calculate, in accordance with the requirements of the Act, the entitlement created in order 7.2 of these orders; and
(b)Pay the entitlements wherever a splittable payment becomes payable;
(c)Direct the accountant of the Fund to lodge any documentation required and notify the Australian Taxation Office of the intention that the parties transfer the respondent wife’s interests in the Fund to the applicant husband; and that the applicant husband shall become and remain the sole Director of the Corporate Trustee of the Fund;
(d)That order 7.3 has effect from the operative time and the operative time is the date upon which the benefits in the Fund are transferred to the applicant husband;
(e)Upon completion of the transfer of the superannuation benefits as hereinbefore provided the respondent wife shall within 14 days do all things and acts necessary and sign all documents required to resign as Director of the Corporate Trustee and relinquish any position held by her and transfer to the applicant husband all of her shareholding in the Corporate Trustee.
(9)Simultaneously with the respondent wife’s compliance with the foregoing orders, the applicant husband shall do all acts and things to indemnify and keep indemnified the respondent wife in relation to any and all liabilities including claims, actions, suits or demands of whatsoever nature arising out of or in connection with the Fund.
(10)Subject to the preceding orders, the applicant husband shall retain all interest in and entitlement to:
(a)The property located at D Street, Suburb E, Victoria;
(b)Motor Vehicle 1;
(c)Motor Vehicle 2;
(d)Motor Vehicle 3;
(e)Motor Vehicle 4;
(f)His shareholding in J Pty Ltd;
(g)All personal property now in his possession or control;
(h)All shares, debentures, units and unit trusts, bank, building society or credit union accounts standing in his sole name;
(i)His interest in life insurance policies standing in his sole name;
(j)All right, title and interest in any companies in which he has at the date of these orders;
(k)All interests in the Fund and any other superannuation entitlements which he may be entitled to.
(11)That subject to the preceding orders the respondent wife shall retain all interests and all entitlement to:
(a)The apartment located at F Street, City G, Country H;
(b)The Motor Vehicle 5;
(c)All personal property now in her possession or control;
(d)All shares, debentures, units and unit trusts, bank, building society or credit union accounts standing presently in her sole name;
(e)Any interest in life insurance policies standing in her sole name;
(f)All right, title and interest in any companies in which she has at the date of these orders;
(g)All interests in any other superannuation entitlements which she may be entitled to.
(12)That each party shall bear and pay their own costs of these proceedings.
The Wife seeks orders as contained in the minute of order that provide:
(1)That the respondent wife shall receive a sum the equivalent of 45% of the net property pool with this sum to be made up as follows:
(a)by a transfer to the wife of the funds in the sum of $217,775 held in the trust fund of Benetatos White solicitors;
(b)by a roll-over of the funds held by the SMSF in the sum of $104,000 to the wife’s complying superannuation fund;
(c)by transfer to the wife of the property at D Street, Suburb E Victoria ($350,000)
(d)The balance to be paid by the husband within 90 days of the date of these orders (‘the Sum’).
(2)Within 90 days of the date of these orders the Applicant shall pay the Sum in order 1(d) to the Respondent.
(3)Upon compliance with Order 1, the Respondent shall transfer her right title and interest in the property known as B Street, Suburb C, NSW being the property contained in Folio Identifier … (the Suburb C property) to the Applicant.
(4)In the event that the Applicant fails to pay the said sum pursuant to order 1(d) to the Respondent in accordance with Order 2, then the parties will do all things and sign all documents necessary to cause the property known as B Street, Suburb C, NSW being the property contained in Folio Identifier … (the Suburb C property) to be listed with an agent to be agreed upon by the parties, for sale by public auction with a reserve price to be agreed by the parties but failing such agreement at a reserve price to be nominated by the auctioning agent, and such auction of the property shall occur no more than eight weeks from the date of listing, unless sold prior, and the proceeds of sale shall be applied as follows:
(a)in payment of all agent’s commission and auction fees on sale;
(b)in payment of legal and all other proper costs of sale;
(c)in payment of the sum to the respondent together with interest payable on such sum at the rate prescribed by the Family Law Act Rules and Regulations calculated from the date which is 90 days from the date of these orders until the date of completion of the sale of the property;
(d)in payment of the balance to the Applicant.
(5)In the event that the Suburb C property does not sell by public auction in accordance with clause 3 then the property shall be submitted for sale by private treaty and the property shall be resubmitted for sale by public auction at three (3) monthly intervals from the last public auction and be resubmitted for sale by private treaty between such auctions, until the property shall be sold and upon such sale either by public auction or private treaty the proceeds of sale shall be applied as provided in Order 3 above.
(6)In the event that the parties are unable to agree as to an agent to act on the sale of the Suburb C property or as to a listing price or reserve price for the sale/auction of the property then the Respondent is authorised to request the President of the Real Estate Institute (NSW) to nominate an agent to act on the sale in relation to the appointment of an agent and the parties shall do all things and sign all documents necessary to cause the nominated agent to act in relation to the sale of the property.
(7)The applicant husband shall cooperate with the agent to facilitate the sale and shall maintain and present the property in good order to maximise the sale price, and shall be responsible for payment of all outgoings and expenses for the property and shall maintain full insurance on the property at all times.
(8)Within seven days of the date of these orders the Applicant and the Respondent shall sign all documents and do all things necessary to instruct Benetatos White Solicitors to distribute the monies held by Benetatos White Solicitors in Trust on behalf of Keech Family Pty Limited as Trustee for the Keech Family Trust to the Respondent, and in the event that either party fails to provide such authority to Benetatos White Solicitors, Benetatos White Solicitors are authorised to release such funds to the Respondent within seven days of the date of these orders.
(9)Simultaneously with the payment referred to in clause 7, the Respondent shall sign all documents necessary to cause the following:
(a)The transfer of all of the Respondent’s shares in Keech Family Pty Limited to the Applicant;
(b)The Respondent to resign all offices and positions with Keech Family Pty Limited;
(c)The Respondent to transfer all of her interest and units in the Keech Family Trust to the Applicant.
(10)
(a)The Applicant shall do all things necessary to obtain the release of the Respondent from all liability, if any, that the Respondent may have in respect of all debts, mortgages, financial facilitate and charges in relation to Keech Family Pty Limited and the Keech Family Trust;
(b)The Applicant shall indemnify and keep indemnified the Respondent against all claims that might be made against the Respondent in respect of all liabilities of the Keech Family Trust and Keech Family Pty Limited including but not limited to all taxation liabilities of the Trust;
(c)The Applicant shall forthwith do all things necessary to cause the Respondent to be released and discharged from any liabilities the Respondent may have or owe to the Keech Family Trust and Keech Family Pty Limited and the Applicant shall indemnify the Respondent against any tax liability that the Respondent may incur as a result of such discharge.
(11)The parties shall do all things and sign all documents necessary to cause the funds currently held in trust by Shaw and Partners stockbroker, on behalf of the trustee of the Keech Family Superannuation Fund (K Pty Ltd) to be transferred to the bank account held by K Pty Ltd as trustee for the Keech Family Superannuation Fund and thereafter cause the trustee to rollover the sum of $104,000 from the Keech Family Superannuation Fund to the Respondent’s Super Fund 1 account.
(12)It is noted that K Pty Ltd (ACN …) (“the Corporate Trustee”) is the Corporate Trustee of Keech Family Superannuation Fund (“the Fund”) and the parties are the directors of the Corporate Trustee. Accordingly, both parties warrant that the trustee has been afforded procedural fairness in relation to the proposed superannuation splitting order.
(13)That in accordance with Section 90XT(1)(b) of the Family Law Act 1975:
(a)the Applicant is entitled to be paid the specified percentage, out of the Respondent’s superannuation interest in the Fund;
(b)the Respondent’s entitlements in the Fund, is correspondingly reduced by force of this order; and
(c)the percentage specified for the purposes of this order is 100% of the Respondent’s entitlements in the Keech Family Superannuation Fund remaining after the rollover of the sum of $104,000 from the Keech Family Superannuation Fund to the Respondent’s Super Fund 1 fund as provided for in order 9 above.
(14)The Applicant and Respondent, in their capacity as Directors of the Corporate Trustee do all such acts and things and sign all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Family Law Act I975, the entitlement created in Order 11 of these Orders;
(b)pay the entitlements whenever a splitable payment becomes payable; and
(c)direct the accountant of the Fund to lodge any documentation required and otherwise notify the Australian Taxation Office of the intention of the parties to transfer the Respondent’s interest in the Fund to the Applicant and that the Applicant remain the sole director of the Corporate Trustee of the Fund.
(15)That Order 12 has effect from the operative time and the operative time is four days from the date of the rollover of $104,000 to the respondent’s Super Fund 1 account pursuant to Order 9 above.
(16)Within fourteen (l4) days of the Trustee of the Keech Family Superannuation Fund complying with Order 12, the Respondent shall, do all acts and things necessary including signing all documents necessary to resign as Director of the Corporate Trustee and relinquish any position or shareholding she has in the Fund and transfer to the Applicant all of her shareholding in the Corporate Trustee.
(17)That simultaneous with the Respondent’s compliance with Order 14, the Applicant shall do all acts and things necessary and sign all such documents as are necessary to indemnify, and keep indemnified, the Respondent in relation to any and all liabilities including claims, actions, suits or demands of whatsoever nature arising out of, or in connection with, the Fund.
(18)Within 30 days of the date of these orders, the Applicant shall do all things and sign all documents necessary to transfer the property known as D Street, Suburb E, Victoria, to the Respondent in an unencumbered state except for any existing lease of the property.
(19)That subject to the preceding Orders, the Applicant shall retain all interest in and entitlement to:
(a)Motor Vehicle 1;
(b)Motor Vehicle 2;
(c)Motor Vehicle 3;
(d)Motor Vehicle 4;
(e)his shareholding in J Pty Ltd;
(f)all personal property now in his possession or control;
(g)all shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his sole name;
(h)all interests in life insurance policies standing in his sole name;
(i)all right, title and interest in any companies standing in his sole name;
(j)all interests in the Fund and any other superannuation entitlements which he may be entitled to.
(20)That subject to the preceding Orders, the Respondent shall retain all interest in and entitlement to:
(a)the apartment located at F Street, City G, Country H;
(b)Motor Vehicle 5;
(c)all personal property now in her possession or control;
(d)all shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in her sole name;
(e)all interests in life insurance policies standing in her sole name;
(f)all right, title and interest in any companies standing in her sole name;
(g)all interests in any other superannuation entitlements which she may be entitled.
(21)That in the event that either party refuses, neglects or fails to sign any such document which is necessary to give effect to the orders herein within fourteen (14) days of a written request to do so then the Registrar of the Family Court of Australia at Parramatta is hereby appointed under Section 106A of the Family Law Act 1975 to sign or execute such document on behalf of the party upon lodgement of such document and the filing of an affidavit on behalf of the requesting party as to the said neglect or refusal.
(22)The defaulting party shall pay the other party’s costs of and incidental to such request and production of documents to the Registrar.
(23)That either party have liberty to apply as to the implementation and enforcement of these orders upon the giving of seven (7) days written notice to the other.
(24)That the Applicant pay the Respondent’s costs of these proceedings.
By way of background, the Husband was born in 1967 and the Wife was born in 1979.
The parties met online sometime in late 2005 while the wife was living in Country H and the Husband in Australia.
At the time the parties met the Husband owned no Real property and the wife an apartment that she had purchased in City G in 2002 that was encumbered by way of a mortgage. The wife conceded in cross examination that the apartment was worth $80,000 that she owed $40,000 odd and therefore the net equity was $40,000.
The parties met in person for the first time in Country H in early 2006 and commenced their relationship about a month later. The husband gave evidence that he then returned to Australia in mid-2006, that he began to send the wife money in the later part of 2006. The wife conceded in Cross examination that before she came to Australia, she received money from the husband that included funds that helped with payments for the apartment.
The wife gives evidence that in about 2008 the parties became engaged and that the parties married with a celebration taking place in 2009 and the marriage certificate then being signed in 2009.
Although the evidence is not clear it appears that sometime in 2009 the Husband advanced the wife monies so that the parties could purchase an investment apartment or otherwise place for the husband in City G. The husband suggests that he advanced $20,000 that was used to purchase an apartment together with funds obtained by way of a mortgage. Ultimately the repayments towards the mortgage on the apartment were not maintained and the mortgagee took possession with the monies paid towards the purchase by the Husband being lost.
It is uncontroversial that the parties made arrangements for the wife to obtain a temporary resident’s visa in mid-2009 and that the wife then travelled to Australia in late 2009. The wife left completing her tertiary studies in Country H and thereafter resided with the Husband together in Australia.
In 2011 the Wife obtained permanent residency in Australia.
The wife gave evidence that between 2010 to 2011 she worked casually in retail and hospitality and that between 2011 to 2013 she worked 5-6 days a week except for a two month period from August to October 2012. The husband gives evidence he was working at the time of the parties’ marriage until 2015 running a business, which the wife suggests she worked in some 15 hours a week.
Both parties give evidence that the husband’s Aunt Ms L died in mid-2012 leaving the Husband her estate worth close on three million dollars.
The Husband later sold a property included in the estate at Suburb M Victoria.
The Husband gave evidence that following that sale he then made the following purchases and investments:
·Purchase of B Street, Suburb C in join names of the parties for $500,000 plus costs of the purchase.
·Invested a total of $540,000 into six accounts of $90,000 each with two accounts in the wife’s name, two accounts in the husband’s name and two in joint names. The Husband gives evidence that the wife has had the benefit of $270,000 of those funds.
·Purchase of a residential property at O Street, Suburb P placing the property into a family trust created by the Husband known as the Keech Family Trust. It is uncontroversial that the wife was made sole director of the corporate trustee being Keech Family Trust Pty Ltd. The property was subsequently sold in early 2009 for about $360,000. Both parties received a distribution of some $20,000 each following the sale with a balance of $219,000 then being reinvested in the trust.
In 2013 the parties’ son X was born.
The husband gave evidence that the husband paid for the wife’s mother to visit Australia in late 2013. The wife’s mother subsequently resides with the parties for some 12 months.
The husband suggests that the parties separated in April 2014 when the Wife left sleeping with him in the matrimonial bedroom at which time the husband suggests sexual relations between the parties ceased.
In late 2014 the wife travelled with X to Country H.
In mid-2014 the husband purchased a residential property at Q Street, Suburb R for $140,000 plus costs on the purchase. The property was purchased in a self-managed superfund. It is uncontroversial that the said property requires significant renovation.
The wife gave evidence that between early to mid-2015, after returning from Country H, she lived with the husband and X at the Suburb C property. The Wife suggests that X and the wife begin living at a friend’s house in Suburb N for one week and then live in the property at Suburb R owned by the superannuation fund at the instigation of the husband because of the ongoing building works at the Suburb C property.
It was submitted on behalf of the wife that the husband wasted monies renovating the Suburb C property.
By way of an estimate of the parties it seems agreed that the husband expended some $1 million in renovations in addition to purchase price of $500,000. The husband it appears dedicated himself to working on the home and did not engage in paid employment.
While the husband at times engaged builders, the work on the property was largely undertaken by the husband as an owner builder. The husband gave evidence in cross examination that he had undertaken a unique custom luxury build where handmade materials were used and that the home featured recycled materials purchased from a demolished building. The husband advised the court during cross examination that the home featured many expensive items including a stove that cost $20,000 to install, imported tapware in the kitchen costing some $7,000 and other Tapware throughout rest of the house bought from overseas with the shipping cost being some $10,000-$20,000. Additionally two Antique toilets costing some $20,000 were installed as was a lamp from Country S. There was no forensic accounting evidence presented to the court that might go towards the husband concealing monies under the guise of building costs and no evidence from a quantity surveyor that would support the court making any finding against the Husband as to wastage by way of expenditure on the renovations. Accordingly the argument made by the wife regarding wastage by the husband falls flat and is rejected by the court.
During cross examination the husband conceded that he was not in paid employment from 2014 until late 2019. The husband advised the court that he lived off rental income, roughly $800 per week and said that during this period he was working on the renovation at home.
In late 2015 the wife’s mother, sister and brother-in-law came to Australia to visit. The wife and X return to living in the Suburb C property.
The Husband suggested that in 2015 he discovered that the wife had sent some $25,000 being proceeds of the inheritance to her family in Country H without his permission.
The wife gives evidence that in late 2015 she rented a cabin at Suburb T for one week and thereafter a house in Suburb U where she lived with X until about mid-2016. During this time, the husband came to the Suburb U property for dinner a couple of times a week and the wife went to the Suburb C home to clean and pick up the husband’s laundry, which she washed and ironed at the Suburb U property.
The wife suggests that in mid-2016 the husband developed a severe medical condition and asked the wife to return to the Suburb C property to care for him. The wife began cleaning the Suburb C house to make it more liveable for the wife and X to live with the husband.
The wife suggested that on the day that X and the wife were to move back to Suburb C, the husband decided to take the wife’s property to the Suburb R superannuation property so that X and the wife would return to living there. The wife and X subsequently remain living at Suburb R between late 2016 to early 2017.
In early 2017 the wife and X returned to live in the Suburb C property with the husband. In mid-2017 the Husband pays for the wife and X to travel to Country H to see the wife’s mother who has suffered a medical episode and remained there for four weeks.
The wife suggested that in February the husband walks into the family home bathroom and pushed X against a doorway. When confronted by the wife about his behaviour, it was alleged the husband put his hands against the wife’s chest as if he was going to push her but in doing so lost his balance and fell against the bathroom sink. The wife moved out of the home for one week to a friend’s house in Sydney with X. The Husband denied this allegation. The Husband deposed in his affidavit that in early 2018 he moved out of the Suburb C property as a result of what he described as the “toxic environment” created by the wife.
In about mid-2018 the husband moved back to the Suburb C property to live with the wife and X.
The wife alleges that in mid-2018 that the wife returned home from work to find her bedroom in disarray. When she asked the husband about this, the husband is alleged to have said to her:
“If you don’t leave the room, I will….”
And then pulled his arm back as though he were about to hit the wife. The wife further alleges that five days later, X came to the wife’s room about 6:45am and falls asleep. When the husband awakes, he screams at X:
“What are you doing here? That’s not your bed”.
He then screamed to X:
“Get out, go to your bed”.
The Husband denies these allegations.
The husband did concede that he had sent the wife a text that provided:
“Go and live with your precious family in the gutter and take your sook son with you… it makes me sick in the stomach.”
The husband conceded that he had called X a filthy rat and that he had sent the mother a text messages about X including that he had run away from him when the wife was at work and that it made it difficult for the wife to work. The husband conceded that the Y Centre records showed that he sent the mother text messages hassling her about money.
The husband conceded that he verbally berated the wife for what the court regards as extremely petty things including that the wife had given guests at the Suburb C property some of the husband’s beer without his permission or the wife having overfilled a bin. Ultimately, the husband conceded that his text messages were abusive and amounted to family violence. The wife advanced what is best described as a Kennon argument in the proceedings that the court will consider further in this decision when making finding regarding the parties’ contributions.
It is uncontroversial that in 2018 the wife received a scholarship to study at Z University. Her income from the scholarship was $27,082 per year for three and a half years, renewed annually. The scholarship expired in 2022 and the court accepts that the wife has completed her studies.
The wife suggests that the parties separated on 4 January 2019.
On 20 May 2019 the Husband commenced proceedings seeking parenting orders and financial orders.
On 15 July 2020 the parties agree to interim orders by which the Keech Family Trust paid the sum of $85,000 to the lawyers for the wife from monies held in trust by V Solicitors to be used for the following purposes:
(a)As to $75,000 for payment of the wife’s costs and disbursements and ongoing living expenses and $10,000 to be used for payment of expenses incurred and payable by the Keech Family Trust including payment of building insurances for the Suburb C property.
On 1 March 2021 the parties reached final parenting orders by consent and the property proceedings were referred to Arbitration.
On 12 March 2021 the husband withdrew his consent to the proceedings being heard by way of arbitration. The proceedings where then removed from the National Arbitration List and referred back to the court for final hearing.
There is significant disagreement about the date of separation. It is clear to the court that the parties’ relationship was on and off between 2014 to January 2019 the parties moving in and out from living with one another.
The court notes the contents of the joint balance sheet jointly tendered that forms exhibit “D” in the proceedings. While the vast majority of the items are agreed. I deal with the joint balance sheet and find the assets, liabilities and add backs of the parties available for distribution as follows:
Ownership Description Value ASSETS Joint B Street, Suburb C $1,025,000.00 Husband D Street, Suburb E $350,000.00 Wife F Street, City G - The husband suggests the property is worth $85,000 being a little over the value the wife ascribes the property at about the time of the commencement of the relationship. The wife suggests that the property is worth $53,607 based on an updated valuation in 2021 taking into account an exchange rate as at 27 February 2022. The court notes that there was a translator’s affidavit annexing a translation copy of an expert valuation. It is in the proceedings the best evidence available to the court and as such the court accepts the value ascribed by the wife. The court finds a value of: $53,607 Motor Vehicle 5 (held by wife) The wife suggests a value of $10,000 based on a Redbook valuation while the husband suggests $12,000. The wife seeks to rely on Redbook valuations and what is referred to as ‘Shannon’s Auction Sale Price’. Again there was no affidavit of an expert that could be tested in respect of any of the parties’ motor vehicles and in that regard the curt makes finding in respect of the Motor Vehicle 5 and the parties other vehicles based on the parties respective admissions as against interest as follows: Wife Motor Vehicle 5 $10,000.00 Husband Motor Vehicle 4 Nil Husband Motor Vehicle 3 $1,000.00 Husband Motor Vehicle 2 $1,500.00 Husband Motor Vehicle 1 $2,500.00 Wife Bank Accounts held in Wife’s name $20,575.00 Joint Keech FT, Monies held in Solicitor’s trust account $217,775.00 Husband Bank Accounts in Husband’s name that the wife neither accepts nor denies as being correct. In the absence of the wife adopting a position beyond that set out in exhibit D the court finds the value as being $5,300. $5,300.00 Total Assets: $1,687,257
The parties agree addbacks as follows:
Wife Legal Fees $79,000.00 Husband Legal Fees $50,000.00 Total Addbacks $129,000.00 Liabilities
The wife suggests that she has a personal loan within the balance sheet of $8,000. The Husband suggests the alleged loan should be disregarded. The court notes that at paragraph 89 of the wife’s affidavit she deposes that she owes:
Approximately $6,000 to a friend, [Ms W], as she has been paying the rent on a storage unit in which I keep belongings.
The evidence falls well short of being a liability the court is prepared to take into account as a matrimonial liability. The said liability is not included for the purposes of the determination in these proceedings.
SUPERANNUATION Wife Wife’s Interest in Super Fund 1 $4,352.00 Husband Husband’s interest in Keech Family Super $228,258.00 Wife Wife’s interest in Keech Family Super $125,611.00 Husband Husbands interest in Super Fund 2 $28,811.00 Total Superannuation $387,032.00
Total Pool available for distribution inclusive of Assets, Addback and Superannuation: $2,203,289
Contributions:
The Court is required to consider the legislative pathway outlined at Part VIII of the Family Law Act.
The court initially finds that it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.
The court deals with the wife’s Kennon argument that finds foundation in the Full Court decisions in Kennon and Kennon [1997] FamCA 27 (10 June 1997) where violence was considered as being relevant to proceedings under Section 79 that provides:
The actions in question are variously referred to in discussions as 'conduct', 'misconduct', or 'fault'. Those terms seem to be used interchangeably. As a matter of convenience, we will use the term 'conduct'. …
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s 79. We prefer this approach to the concept of 'negative contributions' which is sometimes referred to in this discussion.
The court finds that the husband engaged in a course of conduct towards the wife where he berated the wife and sent her emails the contents of which falls within the definition of family violence found at section 4B of the Family Law Act. The court further finds that the husband’s conduct had a discernible impact on the wife and that the wife’s contributions to the relationship in terms of her ability to work making direct financial contributions and contributions as a homemaker and parent were made significantly more arduous as a result of the husband’s conduct.
The court considers the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property.
The wife brought into the marriage the apartment in City G with equity of some $40,000. The court accepts that the wife worked when moving to Australia and contributed financially to the marriage and then at times in the husband’s business. As set out above the wife’s ability to work was made more arduous as a result of the husband’s conduct and as such the court gives greater weight to the wife’s work. The court notes the overwhelming financial contribution made by the husband in the form of his inheritance of some $3 million an amount that is greater than the current property pool.
The court considers the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property. Ordinarily the court would give weight to contributions made by a party who managed, worked on and oversaw the construction of a home. However in this case the husband gave up working in paid employment and embarked on a construction where he has spent more on the purchase of the Suburb C property and its renovations than it is currently worth.
The court considers 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. The wife’s contributions as a homemaker and parent where significantly greater and those of the Husband that the court notes where made more arduous by the conduct of the Husband.
The court finds the husband’s contributions as overwhelming those of the wife and allows and adjustment in favour of the husband of some 30%.
The court finds that the effect of the proposed property orders sought by either party will make no difference to the parties’ respective earning capacity.
The court considers the provisions of Section 75(2) as they are relevant to the facts in the proceedings.
The husband was born in 1967 and the wife born in 1979. The wife is some 12 years younger than the husband. The wife’s working career will as a factor of the parties’ respective ages be greater than that of the husband’s. While the husband suggest in his affidavit that he is in fair health but suffers from work related injuries the court cannot give that opinion weight whee the husband is not an expert to express such an opinion. The court notes the report of Ms W dated 22 February 2022 that suggests the wife suffers PTSD.
The husband works full time in the service industry and the wife a recently graduated tertiary student. Both parties incomes are best described a modest. The court has noted the parties’ property and there are no what is termed in the legislation as financial resources available to the parties. The evidence even taking into account the wife’s PTSD diagnosis is such that the parties each have the physical and mental capacity for appropriate gainful employment.
The wife has the majority of the care for the parties’ son X who is not yet 18 years.
This is not a case where there are commitments beyond what would be normally expect for each of the parties that are necessary to enable the party to support himself or herself and apart from X neither party has a duty to support or maintain a child or another person.
At times the wife has been eligibility a pension, allowance or benefit through Centrelink.
Neither party receives a pension from a superannuation fund or scheme.
The assets available for division are such that based on either parties proposed orders both parties will be afford a standard of living that in all the circumstances is reasonable.
The duration of the marriage has not adversely affected the earning capacity of either party.
The orders proposed by both parties are such that they will have no adverse impact on either party’s capacity to continue their role as a parent of X.
There is no evidence to suggest that either party is cohabiting with another person.
The court has considered the terms of the orders proposed to be made by both parties under section 79 in relation to the property of the parties.
Neither party is bankrupt.
The court notes the modest child support paid by the husband for X under the Child Support (Assessment) Act 1989.
There are no other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
There is no financial agreement that is binding on the parties and no Part VIIIAB financial agreement that is binding on the parties.
Having taken into account those matter at section 75(2) the court finds that there should be an adjustment of 5% in the wife’s favour.
The court notes the parenting orders made by consent between the parties with respect to X on 1 March 2021. The court has noted the modest child support paid by the Husband to the Wife.
The court stands back and considers the effect of the adjustment between the parties having regard to their contributions and adjustment for section 75(2) factors. The court is satisfied that, in all the circumstances, it is just and equitable to make the orders between the parties that will see an adjustment of 75% to the Husband and 25% to the wife.
The court notes that the wife has the following assets and addbacks in her sole name:
Property in City G $53,607.00 Motor Vehicle 5 $10,000.00 Money in Bank Accounts $20,575.00 Addbacks $79,000.00 Total: $163,182
The pool of assets and addback total : $1,816,257
The wife is to receive 25% : $454,064.25
Taking into account the wife’s assets and addbacks the wife is to receive a further cash adjustment of $290,882.25.
The court notes that the wife has total superannuation in the sum of $129,963 and the total pool of superannuation is $387,032. The wife should receive 25% of the superannuation pool that equates to $96,758. It will therefore be necessary for the wife to split part of her superannuation entitlements being the amount of $33,205 in the Keech self-managed superannuation fund to the husband.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Myers. Associate:
Dated: 8 March 2023
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