Kenyatta & Borghi
[2024] FedCFamC1F 300
•10 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kenyatta & Borghi [2024] FedCFamC1F 300
File number(s): SYC 7834 of 2021 Judgment of: ALTOBELLI J Date of judgment: 10 May 2024 Catchwords: FAMILY LAW – PROPERTY – Short marriage – Where there are five properties on the balance sheet – Where both parties wish to retain the Suburb B property – Where the wife’s parents have provided financial assistance throughout the years – Issues of non-disclosure – It is ordered that property be divided as to 62.5:37.5 in the wife’s favour. Legislation: Family Law Act 1975 (Cth) ss 75, 79 Cases cited: Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
CCD & AGMD (2006) FLC 93-300; [2006] FamCA 1291
Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
NHC & RCH (2004) FLC 93-204; [2004] FamCA 633
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Trevi & Trevi [2018] FamCAFC 173
Division: Division 1 First Instance Number of paragraphs: 70 Date of last submission/s: 10 April 2024 Date of hearing: 8–10 April 2024 Place: Sydney Counsel for the Applicant: Ms McMahon Solicitor for the Applicant: O’Sullivan Legal Counsel for the Respondent: Mr Antill Solicitor for the Respondent: Jurisbridge Legal ORDERS
SYC 7834 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KENYATTA
Applicant
AND: MR BORGHI
Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
10 MAY 2024
THE COURT ORDERS THAT:
1.Within 28 days from the date of these orders, the Respondent Husband (“the Husband”) is to do all acts and things and sign all documents necessary to transfer to the Applicant Wife (“the Wife”) Motor Vehicle 1 (“Motor Vehicle 1”) including all insurance policies and the Wife pay all costs associated with the transfer of Motor Vehicle 1.
The Suburb C property
2.Within 60 days of the date of these orders, the Husband shall do all such things and sign all such deeds, documents, authorities and instruments as may be necessary to transfer to the Wife all his right title and interest in the property situated at and known as D Street, Suburb C NSW (“the Suburb C property”) being the whole of the land and all its improvements contained in folio identifier ….
3.Simultaneously with the said transfer referred to in Order 2 above, the Wife shall do all such acts and things and sign all such deeds, documents, authorities and instruments as may be necessary to refinance the existing mortgage secured over the Suburb C property into her sole name PROVIDED HOWEVER that the Husband shall sign and return the appropriate discharge authority within seven days of same being submitted to him.
4.In the event the Wife is unable to refinance the mortgage of the Suburb C property within 60 days of the transfer referred to in Orders 2 and 3, the parties shall list the Suburb C property for sale in accordance with the machinery provisions contained in Orders 16 and 17 herein, save that the Wife shall receive the total sale proceeds, and further save that reference to the “property” is to be substituted with reference to the “Suburb C property”.
The Suburb F property
5.Within 60 days of the date of these orders, the parties shall do all such acts and things and sign all such deeds, documents, authorities and instruments as may be necessary to refinance the existing mortgage to the Husband secured over the property situated at and known as G Street, Suburb F NSW (Folio Identifier: …) (“the Suburb F property”) into his sole name PROVIDED HOWEVER that the Wife shall sign and return the appropriate discharge authority within seven days of same being submitted to her.
6.In the event the Husband is unable to refinance the mortgage of the Suburb F property into his own name within 60 days, the Husband shall list the Suburb F property for sale in accordance with the machinery provisions contained in Orders 16 and 17 herein, save that the Husband shall receive the total sale proceeds, and further save that reference to the “property” is to be substituted with reference to the “Suburb F property”.
The Suburb B property
7.Within 60 days of the date of these orders, the Husband is to transfer the sum of $446,852.75 to the Wife.
8.Simultaneously with Order 7, the Wife shall do all such things and sign all such deeds, documents, authorities and instruments as may be necessary to transfer to the Husband all his right title and interest in the property situated at and known as H Street, Suburb J NSW (“the Suburb B property”) being the whole of the land and all its improvements contained in folio identifier ….
9.Simultaneously with the said transfer in Order 7 above, the Husband shall do all such acts and things and sign all such deeds, documents, authorities and instruments as may be necessary to refinance the existing mortgage secured over the Suburb B property into his sole name PROVIDED HOWEVER that the Wife shall sign and return the appropriate discharge authority within seven days of same being submitted to her.
10.In the event the Husband is unable to pay the transfer of the sum in Order 7 or refinance the mortgage of the Suburb B property within 60 days of the transfer referred to in Orders 8 and 9, the Husband shall list the Suburb B property for sale in accordance with the machinery provisions contained in Orders 16 and 17 herein, save that out of the net proceeds of sale, $549,994.63 is to be given to the Wife and the balance to the Husband, and further save that reference to the “property” is to be substituted with reference to the “Suburb B property”.
The Suburb K property
11.Within 14 days of these orders, the Wife is to elect whether she wishes to retain the property situated at and known as L Street, Suburb K NSW (“the Suburb K property”).
12.If she does wish to retain the Suburb K property:
(a)Within 60 days of the Wife informing the Husband that she wishes to retain the property, the Husband shall do all such things and sign all such deeds, documents, authorities and instruments as may be necessary to transfer to the Wife all her right title and interest in the Suburb K property being the whole of the land and all its improvements contained in folio identifier …;
(b)Simultaneously with the said transfer referred to in Order 12(a) above, the Wife shall do all such acts and things and sign all such deeds, documents, authorities and instruments as may be necessary to refinance the existing mortgage secured over the Suburb K property into her sole name PROVIDED HOWEVER that the Husband shall sign and return the appropriate discharge authority within seven days of same being submitted to him; and
(c)Simultaneously with the said transfer, the Wife is to transfer to the Husband the sum equivalent to 37.5 per cent of the value of the Suburb K property pursuant to the joint balance sheet.
13.If she does not wish to retain the Suburb K property or in the event the Wife is unable to refinance the mortgage of the property or transfer the sum equivalent to 37.5 per cent of the value of the property to the Husband referred to in Order 12(c) then:
(a)The parties shall list the Suburb K property for sale in accordance with the machinery provisions contained in Orders 16 and 17 herein, save that reference to the “property” is to be substituted with reference to the “Suburb K property”, and further save that the balance of the net proceeds of sale are to be divided 62.5 per cent to the Wife and 37.5 per cent to the Husband.
The Suburb M property
14.Upon the completion of the sale of the property situated at and known as N Street, Suburb M NSW (“the Suburb M property”) by private treaty, the parties shall distribute the proceeds of sale, in the following order and priority:
(a)In discharge of the mortgage presently encumbering the Suburb M property;
(b)In discharge of any outstanding council, strata and water rates;
(c)In payment of real estate agents’ proper commission arising from the sale;
(d)In payment of proper legal costs and expenses arising from the sale;
(e)In payment of any other expenses which may have been reasonably incurred in respect of such sale, including valuer’s fees if appropriate; and
(f)In payment of the balance as follows:
(i)62.5 per cent to the Wife; and
(ii)37.5 per cent to the Husband.
15.In the event that the Suburb M property is not sold by private treaty within three (3) months, the property shall be listed for sale by auction in accordance with the machinery provisions in accordance with Orders 16 and 17 herein, save that reference to the “property” is to be substituted with reference to the Suburb M property, and further save that the balance of the net proceeds of sale should be divided as to 62.5 per cent to the Wife and 37.5 per cent to the Husband.
Machinery Provisions
16.In the event that it is necessary for the sale of one of the above-mentioned properties, the property shall be sold subject to the following conditions:
(a)Within 60 days, the person(s) whose name is on the title of the property is to engage a real estate agent for the purposes of the sale and where the property is held in joint names the following shall apply:
(i)The parties are to engage such real estate agent for the purposes of the sale as is agreed between them or, failing agreement, the Wife is to nominate three real estate agents (“the nominated agents”) to the Husband and, within seven days after that nomination is made, the Husband is to select one of the nominated agents (“the selected agent”) and the parties are to engage the selected agent.
(b)Within 75 days, the person(s) whose name is on the title of the property is to engage a solicitor to undertake the legal work associated with the sale and where the property is held in joint names the following shall apply:
(i)The parties engage a solicitor to undertake the legal work associated with the sale as is agreed by them or, failing agreement, the Wife is to nominate three solicitors (“the nominated solicitors”) to the Husband and, within seven days after that nomination is made, the Husband is to select one of the nominated solicitors (“the selected solicitor”) and the parties are to engage the selected solicitor.
(c)The property is to be sold by auction, unless otherwise agreed between the parties, with such auction to take place within six weeks after the property is placed on the market for sale;
(d)In the event the property is held in joint names by the parties, the property shall be listed for sale at a price agreed between the parties and failing agreement the parties shall instruct the selected agent to provide the parties a recommended listing price or price range and the property shall be listed for sale as per that recommendation;
(e)The auctioneer shall be nominated by the selected agent marketing the property in the event there is no agreement;
(f)If the property is held in joint names by the parties, they shall do all acts and sign all documents and authorities necessary to ensure that the selected agent nominated to act in relation to the sale is instructed to liaise at all times and in all respects pertaining to the sale with both parties, and that this instruction include but not be limited to both parties executing the agency agreement, taking their instructions and relaying offers to purchase the property to both parties; and
(g)In the event that the property is not sold at the first auction held for its sale, then the parties are to do all acts and things and sign all documents necessary to arrange for a second auction to take place within two months of the first auction, at which auction, unless otherwise agreed by the parties, the property is to be sold to the highest bidder.
17.Upon the completion of the sale of the property in accordance with Order 16 herein above the parties shall distribute the proceeds of sale in the following order and priority:
(a)In discharge of the mortgage presently encumbering the property;
(b)In discharge of any outstanding council and water rates;
(c)In payment of real estate agents’ proper commission arising from the sale;
(d)In payment of proper legal costs and expenses arising from the sale;
(e)In payment of any other expenses which may have been reasonably incurred in respect of such sale;
(f)In payment of any other debts and/or outgoings associated with the property, including any capital gains tax payable by the party acquiring the property in accordance with these orders on the sale of the property; and
(g)In payment to the parties in accordance with the relevant Order above.
Other
18.Within 14 days of the date of these orders, the parties shall do all acts and sign all documents necessary to close all joint account held between them, and simultaneously with the same, to divide the proceeds evenly between them.
19.Save as otherwise provided in these orders the Wife shall be declared the sole owner both at law and in equity of:
(a)The Suburb C property;
(b)Her motor vehicle;
(c)Any chattels, goods, furnishings and other property of whatsoever kind or nature which are, as at the date of the orders, in her possession; and
(d)Any monies, shares, debentures, employee emoluments and superannuation entitlements, which stand in her sole name as at the date of the orders.
20.Save as otherwise provided in these orders the Husband shall be declared the sole owner both at law and in equity of:
(a)The Suburb F property;
(b)The Suburb B property;
(c)His motor vehicles inclusive of Motor Vehicle 2;
(d)His company, O Pty Ltd;
(e)Any chattels, goods, furnishings and other property of whatsoever kind or nature which are, as at the date of the orders, in his possession; and
(f)Any monies, shares, debentures, employee emoluments and superannuation entitlements, which stand in his sole name as at the date of the orders.
21.Except as specifically provided for by any order to the contrary, as against the Husband, the Wife is the sole owner of, and the Husband has no interest in, all personal property (including choses in action) or other property of whatsoever nature and kind in the possession or name of the Wife at the date of the making of this order.
22.Except as specifically provided for by any order to the contrary, as against the Wife, the Husband is the sole owner of, and the Wife has no interest in, all personal property (including choses in action) or other property of whatsoever nature and kind in the possession or name of the Husband at the date of the making of this order.
23.Each party retains their respective superannuation.
24.Except as specifically provided for by any order to the contrary:
(a)The Husband shall indemnify the Wife from and in respect of all actions, claims, suits and demands as may be made against the Wife in relation to all liabilities in the name of the Husband; and
(b)The Wife shall indemnify the Husband from and in respect of all actions, claims, suits and demands as may be made against the Husband in relation to all liabilities in the name of the Wife.
25.Leave is granted to the parties to file consent orders in chambers within 14 days of the date of these orders.
26.Each party shall do all acts and things and sign all documents necessary to give effect to these orders whensoever and howsoever requested or required to do so as soon as practicable.
27.In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kenyatta & Borghi has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the orders made in a dispute between the applicant wife (“the wife”) and the respondent husband (“the husband”) about alteration of property interests.
BACKGROUND
The wife is 33 years old and is employed as a finance professional. The husband is 38 years old and describes himself as a manager. They commenced cohabitation in 2013, married in 2016, separated on 20 April 2021 and divorced in 2022. There are no children of the marriage.
On day two of the final hearing, counsel for the husband was instructed to inform the Court for the first time that the husband has remarried and has a child. This information had never been disclosed before and the Court does not have any further information about this.
It is agreed that at the commencement of cohabitation, each party brought in one property that they had purchased off the plan. The husband purchased a property in Suburb F (“the Suburb F property”) off the plan in 2012 and the wife purchased a property in Suburb K (“the Suburb K property”) off the plan in 2013. The husband paid a deposit of around $50,000 for the Suburb F property and the wife paid a deposit of around $50,000 for the Suburb K property.
In 2014, the parties purchased a property in Suburb M (“the Suburb M property”) off the plan for over $700,000 with a deposit of around $70,000. In 2014–2015, the parties purchased a land parcel in Suburb C (“the Suburb C property”) for around $400,000. In 2015, the parties purchased a property in Suburb P (“the Suburb P property”) off the plan for $800,000 with a deposit of $80,000. In late 2015, the wife’s parents entered into a contract to purchase property in Suburb B (“the Suburb B property”) for over $500,000. Due to changes in Commonwealth laws regarding lending to foreign investors, the wife’s parents were unable to fulfill the contract, so they transferred the property into the wife’s sole name. In late 2015, the parties transferred the Suburb P property to the husband’s parents and they transferred $197,908 into a joint account of the parties.
In 2016, the parties were married in Country Q and it is agreed that the wife’s parents paid for the wedding.
In late 2016, the husband’s parents migrated to Australia and began living with the parties in the Suburb C property. In mid-2017, the Suburb B property settled and the parties entered into a home building contract. In late 2017, the husband commenced a business. In mid-2019, the parties and the husband’s parents moved into the Suburb B property.
Following separation on 20 April 2021, the wife commenced proceedings on 26 October 2021. On 31 March 2022, interim orders were made by a Senior Judicial Registrar granting exclusive occupancy of the Suburb B property to the husband and exclusive occupancy of the Suburb C property to the wife. On 11 December 2023, interim orders were made by consent for the Suburb M property to be listed for sale. At final hearing the Court was informed the parties received an offer of $1,070,000 for the property.
It is agreed that throughout the relationship the wife’s parents transferred a total of $390,000 to the parties to help in the purchase of the above properties. However, the husband disputes that all of this amount was a gift and rather alleges it was a repayment of monies going to the wife’s parents that the wife earned through a side business.
The wife is the legal owner of a property in City R, Country Q worth approximately $2,000,000. The wife’s evidence has always been that the property is beneficially owned by her parents and that it is held on trust for them. The husband disputed the asserted beneficial ownership throughout these proceedings. However, his counsel conceded at final hearing that the property can be removed from the balance sheet. The wife’s counsel also conceded that the husband’s property in City S, Country Q can be removed from the balance sheet.
The matter proceeded for three days of final hearing on 8–10 April 2024. The wife and both of her parents were cross-examined as well as the husband and his father.
COMPETING PROPOSALS
By the time of closing submissions, the wife proposed orders that reflect her receiving 70 per cent of the matrimonial pool and the husband 30 per cent. In order to implement this, she proposed that the husband retain the Suburb M property, the Suburb K property and the Suburb F property. The wife would then retain the Suburb C property and the Suburb B property.
The husband seeks an overall division of 56:44 in his favour. In order to implement this, he proposes that he retain the Suburb B property and the Suburb F property, and the wife retains the Suburb C property, the Suburb K property and Motor Vehicle 1. The husband further proposes that the Suburb M property be sold, and he receive 60 per cent of the net sale proceeds and the wife receive 40 per cent.
EVIDENCE BEFORE THE COURT
In support of her case, the wife relies on the following documents:
(1)Further Further Amended Initiating Application filed 2 April 2024;
(2)Her affidavit filed 4 April 2024;
(3)Affidavit of Ms T filed 4 April 2024;
(4)Affidavit of Ms U filed 5 April 2024;
(5)Affidavit of Mr V filed 5 April 2024;
(6)Financial Statement filed 4 April 2024;
(7)Outline of Case Document filed 7 April 2024; and
(8)Various documents tendered during the proceedings, and marked Exhibits A1–A14.
In support of his case, the husband relies on the following documents:
(1)Further Amended Response filed 29 March 2024;
(2)His affidavit filed 4 April 2024;
(3)Affidavit of Mr W filed 4 April 2024
(4)Financial Statement filed 4 April 2024;
(5)Outline of Case Document filed 7 April 2024; and
(6)Various documents tendered during the proceedings, and marked Exhibits R1–R11.
THE APPLICABLE LAW
This is an application under s 79 of the Family Law Act 1975 (Cth) (“the Act”) which relevantly provides:
79 Alteration of property interests
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them—altering the interests of the parties to the marriage in the property; or
(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage—altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d)an order requiring:
(i) either or both of the parties to the marriage; or
(ii) the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
…
(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)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, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)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, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)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; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Section 79(4) incorporates the provisions contained in s 75(2) of the Act, which states:
(2) The matters to be so taken into account are:
(a)the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party’s role as a parent; and
(m)if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
In Bevan & Bevan (2013) FLC 93-545 (“Bevan”), the Full Court considered the High Court’s decision in Stanford v Stanford (2012) 247 CLR 108, which provided guidance on how s 79 was to be interpreted and implemented. Bevan endorsed the continuing application of the four‑step approach articulated by the Full Court in Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 (“Hickey”), but on the basis that it is a shorthand distillation of the words of s 79, as opposed to being a statutory edict. The four steps articulated in Hickey at [39] are:
(1)Identify and value the property, liabilities and financial resources of the parties;
(2)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property;
(3)Identify and assess the other facts relevant under s 79(4)(d)–(g) including s 75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
(4)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.
Another legal issue that arises is whether I should notionally add back assets to the property pool. In the Full Court’s decision of Trevi & Trevi [2018] FamCAFC 173, Murphy J explains at [27]:
The Full Court held in Omacini and Omacini that addbacks fall into “three clear categories”: where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets; and “waste” or wanton, negligent, or reckless dissipation of assets.
(Footnotes omitted)
Relevant to this case is the first category—that is, the question of adding back expenditure on legal fees. In this regard, the Full Court in NHC & RCH (2004) FLC 93-204 at [55] and [57] states:
55.This decision appears to confirm the principle that where the payment of legal costs can be regarded as a premature distribution of funds (in which both parties have an interest), it is appropriate to add back those costs as a notional asset. It also confirms the principle that where funds have been borrowed to pay legal fees, and such liability is still outstanding, neither the payment of the fees nor the liability should be taken into account. The decision also supports the proposition that where it is determined that a payment of legal fees should be taken into account as a notional asset, any outstanding liability in respect of those fees should also be taken into account.
…
57.If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party, who has had the benefit of them.
CREDIT ISSUES
The Court prefers the financial evidence of the wife, over that of the husband, wherever it conflicts. The husband was both cavalier and ambivalent in terms of his compliance with his duty of disclosure. Even making allowances for the speed at which this matter was prepared for final hearing, both his affidavit and Financial Statement were deficient in significant respects. For example, he failed to disclose to the Court, before the concession was made by his counsel on day two of the final hearing, that he had remarried and had a child. Thus, none of the financial issues consequential upon this were placed before the Court.
Another example is that he failed to disclose the nature and extent of the financial contribution that must, the Court finds, have been made by his parents who were cohabiting with him in the Suburb B property. The evidence is quite clear that his parents are of substantial means. The husband’s father, who is 66 years old, gave evidence that he recently purchased a $140,000 motor vehicle, as well as an unspecified vehicle. In cross-examination he explained that he had hundreds of thousands of dollars in savings. Quite apart from the fact that the husband contends that he could not meet mortgage payments as required by Court order made on 31 March 2022, the husband contends that he did not ask his parents to financially contribute to the cost of the accommodation that they occupied for free. This cavalier approach to the management of joint finances with the wife contributes to the Court’s lack of confidence about the financial evidence that he gave.
BALANCE SHEET
During closing submissions the following joint balance sheet was formulated with the assistance of counsel. Some obvious mathematical errors have been corrected.
Ownership Description Wife’s value Husband’s value ASSETS 1 J NAB Classic Banking Account …24 as at 22.03.24 NIL NIL 2 J NAB Classic Banking Account …77 as at 22.03.24 NIL NIL 3 J X Bank Account …41 as at 22.03.24 NIL NIL 4 J N Street, Suburb M Property $1,070,000 $1,070,000 5 J D Street, Suburb C Property $1,375,000 $1,375,000 6 W H Street, Suburb B Property $1,650,000 $1,650,000 7 W L Street, Suburb K Property $580,000 $580,000 8 W Property in Country Q (and car space)
(“Country Q Property 1”)NIL NIL 9 W CBA Complete Access Account …85 as at 22.03.24 $1,711 $1,711 10 W CBA Term Deposit …56 held on trust for the Mother of the Wife as at 22.03.24 NIL NIL 11 W CBA …08 as at 22.03.24 $1,621 $1,621 12 W CBA …24 as at 22.03.24 NIL NIL 13 W NAB Classic Banking Account …38 as at 22.03.24 $4,722 $4,722 14 W NAB ISaver Account …92 as at 22.03.24 NIL NIL 15 W Y Bank Account $470 $470 16 H O Pty Ltd NIL NIL 17 H Motor Vehicle 1 [in possession of Wife] $8,900 $8,900 18 H Motor Vehicle 2 $18,750 $18,750 19 H G Street, Suburb F Property $580,000 $580,000 20 H City S, Property in Country Q
(“Country Q Property 2”)NIL NIL 21 H X Bank Account …29 $579 $579 22 H X Bank Account …71 NIL NIL 23 H Z Bank Account …21 NIL NIL 24 H Z Bank Account …91 $274 $274 25 H NAB …35 NIL NIL 26 H CBA Term Deposit …83 $10,000 $10,000 27 H Shares (1000 shares) $3,700 $3,700 Total $5,305,727 $5,305,727 ADDBACKS 28 H Funds from sale of jointly owned Motor Vehicle 3 received into the Husband’s X Bank account in late 2021 $39,000 NIL 29 H Funds from NAB #...77 on 2 July 2021 and 26 August 2021 transferred to parents of the Husband without explanation $19,000 NIL Ownership Description Wife’s value Husband’s value 30 H Funds from sale of Motor Vehicle 4 per correspondence from the Husband of mid-2023 $8,000 NIL 31 W Funds withdrawn by wife from joint account to pay mother’s permanent residency NIL $53,600 Total $66,000 $53,600 LIABILITIES 32 J Suburb M Mortgage #...00 & #...01 & #...02 as at 22.03.24 $676,506 $676,506 33 J Suburb C Mortgage #...23 & #...87 as at 22.03.24 $721,552 $721,552 34 W Suburb B Mortgage #...37 & #...34 as at 22.03.24 $749,686 $749,686 35 W Suburb K Mortgage #...10 & #...82 as at 22.03.24 $434,530 $434,530 36 W AMEX …01 as at 22.03.24 $33 $33 37 W CBA Low Fee Mastercard Account …86 as at 22.03.24 $252 $252 38 W E Finance Credit Card as at 22.03.24 $1,814 $1,814 39 W Loan owed to Ms T NIL NIL 40 H Loan owed to parents of Husband NIL NIL 41 H Suburb F Mortgage #...00 as at 22.03.24 $493,018 $493,018 42 H ANZ Visa Account #...58 $4,461 $4,461 Total $3,081,852 $3,081,852 SUPERANNUATION Member Name of Fund Type of Interest Wife’s value Husband’s value 43 W Superannuation Fund 1 Accumulated $135,448 $135,448 44 H Superannuation Fund 2 Accumulated $115,359 $115,359 Total $250,807 $250,807 FINANCIAL RESOURCES Ownership Description Wife’s value Husband’s value Total NIL NIL
There are four issues for the Court to determine: items 28–31 of the balance sheet which are all addbacks. The wife sought the addbacks in items 28–30 and the husband sought the addback in item 31. The Court allows each of the addbacks, except for the last one.
In relation to item 28, the Court does not accept the husband’s uncorroborated evidence that the sale proceeds of his motor vehicle were applied towards the mortgage. His counsel conceded in closing submissions that there is no evidence in relation to this. Quite apart from the adverse credit findings the Court has made about the husband’s financial evidence, his contention is inconsistent with the broader and clearer evidence about non-payment of the mortgage.
Item 29 is the sudden and unexplained transfer by the husband of money to his parents, supposedly in reimbursement of expenses incurred and non-financial contributions by the husband’s parents in relation to his business. The husband gave examples of their expenditure as being laundry and petrol and his counsel submitted that these are not tasks where receipts can be easily produced. Once again, the Court does not accept the husband’s evidence in the absence of any attempt at particularity of the expenses supposedly incurred, particularly given the overall finding the Court makes about the lack of transparency of the financial affairs of the husband and his parents.
In relation to item 30, the husband’s evidence is that he applied the funds towards the mortgages and at this stage he was still paying for the shortfall in the mortgage for the Suburb M property. For the same reasons as in relation to the preceding two items, the Court does not accept the husband’s evidence that he used joint funds in the manner he alleges.
In relation to item 31, the addback that the husband seeks, the wife’s corroborated evidence clearly establishes that the funds in question originated from her parents and were used for the specific purpose of their permanent residence visa application.
Accordingly, the Court finds the balance sheet in this matter to be as follows:
Ownership Description Value ASSETS 1 J NAB Classic Banking Account …24 as at 22.03.24 NIL 2 J NAB Classic Banking Account …77 as at 22.03.24 NIL 3 J X Bank Account …41 as at 22.03.24 NIL 4 J N Street, Suburb M Property $1,070,000 5 J D Street, Suburb C Property $1,375,000 6 W H Street, Suburb B Property $1,650,000 7 W L Street, Suburb K Property $580,000 8 W Property in Country Q (and car space)
(“Country Q Property 1”)NIL 9 W CBA Complete Access Account …85 as at 22.03.24 $1,711 10 W CBA Term Deposit …56 held on trust for the Mother of the Wife as at 22.03.24 NIL 11 W CBA …08 as at 22.03.24 $1,621 12 W CBA …24 as at 22.03.24 NIL 13 W NAB Classic Banking Account …38 as at 22.03.24 $4,722 14 W NAB ISaver Account …92 as at 22.03.24 NIL 15 W Y Bank Account $470 16 H O Pty Ltd NIL 17 H Motor Vehicle 1 [in possession of Wife] $8,900 18 H Motor Vehicle 2 $18,750 19 H G Street, Suburb F Property $580,000 20 H City S, Property in Country Q
(“Country Q Property 2”)NIL 21 H X Bank Account …29 $579 22 H X Bank Account …71 NIL 23 H Z Bank Account …21 NIL 24 H Z Bank Account …91 $274 25 H NAB …35 NIL 26 H CBA Term Deposit …83 $10,000 27 H Shares (1000 shares) $3,700 Total $5,305,727 ADDBACKS 28 H Funds from sale of jointly owned Motor Vehicle 3 received into the Husband’s X Bank account in late 2021 $39,000 29 H Funds from NAB #...77 on 2 July 2021 and 26 August 2021 transferred to parents of the Husband without explanation $19,000 30 H Funds from sale of Motor Vehicle 4 per correspondence from the Husband of mid-2023 $8,000 31 W Funds withdrawn by wife from joint account to pay mother’s permanent residency NIL Total $66,000 LIABILITIES 32 J Suburb M Mortgage #...00 & #...01 & #...02 as at 22.03.24 $676,506 33 J Suburb C Mortgage #...23 & #...87 as at 22.03.24 $721,552 34 W Suburb B Mortgage #...37 & #...34 as at 22.03.24 $749,686 35 W Suburb K Mortgage #...10 & #...82 as at 22.03.24 $434,530 36 W AMEX …01 as at 22.03.24 $33 37 W CBA Low Fee Mastercard Account …86 as at 22.03.24 $252 38 W E Finance Credit Card as at 22.03.24 $1,814 39 W Loan owed to Ms T NIL 40 H Loan owed to parents of Husband NIL 41 H Suburb F Mortgage #...00 as at 22.03.24 $493,018 42 H ANZ Visa Account #...58 $4,461 Total $3,081,852 SUPERANNUATION Member Name of Fund Type of Interest Value 43 W Superannuation Fund 1 Accumulated $135,448 44 H Superannuation Fund 2 Accumulated $115,359 Total $250,807 NET POOL (INCLUDING SUPERANNUATION): $2,540,682
The balance sheet having been established, the Court finds that in this case there should be three pools of assets.
In the first pool of assets, the property known as Country Q Property 1 will be located. This is a property in the wife’s name, but it is unequivocally clear from the evidence that she made no contribution to it, has never resided there except when visiting her parents, is exclusively occupied by her parents, and the wife and her parents have an understanding that the property will be hers on their death. For all practical purposes, this property was put in the wife’s name as an inheritance tax management initiative. The husband agrees that he made no contribution to this property. He agrees that it should be in a separate pool of assets.
In the second pool of assets, the property known as Country Q Property 2 will be located. This is a property in the husband’s name. He did not pay for it. He has never lived there. His parents purchased it and at some stage before the husband and the wife cohabited, transferred it into his name. The wife agrees that she made no contribution to this property. She also agrees that the property should be placed in a separate pool of assets.
The third pool of assets is represented by all of the remaining non-superannuation assets and liabilities, notional property consisting of addbacks, and the husband and the wife’s superannuation entitlements. In relation to the latter, the parties agree that no superannuation splitting order is sought and that as part of any order altering property interests in their favour, they should each retain their own superannuation entitlements.
ASSESSMENT OF CONTRIBUTIONS
In closing submissions counsel for the wife contended that the wife should receive 70 per cent of what was, in effect, the third pool. She asserted that the wife made a greater contribution both during the marriage, and from the date of separation to the date of the hearing.
By contrast, the husband asserted that he made the greater contribution during the marriage and counsel submitted the overall percentage to be awarded to the husband would be 56 per cent. However, when counsel was pressed to provide a reason as to how the husband could have made a greater contribution, he could not provide an explanation.
The polarisation of the parties’ proposals merely reflects both the evidence of the husband and the wife, and their supporting witnesses, and the manner in which the case was conducted. As I warned the parties in the clearest possible terms before the evidence commenced, they could not possibly both be right, and there was a high prospect of a costs order if one party were found to be unsuccessful, and the grounds for making a costs order was otherwise established.
Based on the evidence of the husband and the wife, the evidence of their parents, and the totality of the documents before the Court, I am satisfied that contribution as at the date of cohabitation, or shortly thereafter, should be assessed as being equal. They each had interests in property that were acquired with the assistance of their parents. They each had a motor vehicle. They each had superannuation. It is likely they each had savings. The husband’s contention that he had savings of $90,000 is not established to the Court’s satisfaction. There was no corroborating evidence. The adverse credit findings against the husband also militate against a finding being made in his favour about this item. In any event, the husband’s counsel conceded in closing submissions that the parties had similar assets at the commencement of their relationship.
Putting aside the issue of contribution made by each of the parents of the husband and the wife during the relationship, each of the husband and the wife contend that they made a greater financial and non-financial contribution than the other until the date of separation.
The Court rejects the following submissions and contentions as being contrary to principle and family law jurisprudence.
Assessment of contribution, in particular financial contribution, is not an accounting exercise and it is not rendered so even in a relatively short marriage such as the present one. Even if it were the case, therefore, that the wife earned more than the husband during their relationship, it is not necessarily the case that her contribution will be assessed as being greater. Regardless, it is conceded that the husband earned more than the wife at the commencement of the relationship. Assessment of contribution is a holistic exercise, even in a relatively short marriage, and even though the cases suggest that greater attention to specific aspects of contribution may be given in short marriages (CCD & AGMD (2006) FLC 93-300). The approach contended for by the wife is highly problematic in this case. The financial affairs of both the husband and the wife were inextricably interwoven with the financial and non‑financial support they received from their parents. The approach contended for by the wife minimises the reality that what was a joint enterprise in the form of the business conducted by the husband suffered disproportionately as a result of the COVID-19 global pandemic, whereas her income flow was not affected. The Court has no doubt that the wife would have claimed the benefits of the seeming profitability of this business but for the pandemic, but now seeks to sheet home the losses only to the husband. That is contrary to principle and reflects the emotional overlay that permeated this case.
The husband’s attempt to somehow construe his contributions by way of sourcing the investment properties as some form of special contribution that was worthy of greater weight than that of the wife was plainly contrary to principle, and again reflected the emotional overlay permeating this case.
The Court completely rejects the undignified, indeed childish, attempts by each party to minimise the non-financial contributions they each made, particularly with the assistance of two sets of parents.
If there is a difference at the time of separation in relation to financial contribution it emanates from the financial support that was provided to each party, through their parents. The focus turns to this. The failure by each party to make sensible concessions about the contributions that the other spouse’s parents made extended this litigation unnecessarily, added unnecessary cost, and no doubt accentuated the emotional burden of the case.
The husband’s counsel conceded the quantum of the amounts transferred from the wife’s parents to the wife. The wife’s evidence was as follows.
The wife’s parents contributed nearly $50,000 towards the party’s equity in the Suburb M property in early 2014.
The wife’s mother gifted the husband and the wife $10,000 each in cash, when they visited them in Country Q in late 2014. The Court rejects any contention that any cash gift given to the husband and/or the wife from the wife’s parents was, in fact, sourced (in part or in whole) from a cash gift from the husband’s parents to the wife’s parents on the occasion of the husband and the wife’s engagement. The Court accepts that a gift was given from the husband’s parents to the wife’s parents, and this seems to have been a culturally based gift which could possibly be construed as a contribution towards the costs of the wedding which was predominately borne by the wife’s parents. There was also a $10,000 wedding present from the wife’s parents to the parties in 2016.
In August 2015 the wife’s parents made another gift of $10,000 cash to the wife.
The wife’s parents contributed nearly $57,000 between 2014–2015 towards the party’s equity in the Suburb C property.
The wife’s parents in 2015–2016 contributed $291,000 towards the party’s equity in the Suburb B property.
The total dollar value of the contribution made by the wife’s parents is approximately $438,000.
However, the husband contends that a part of this money should actually be attributed to repayment of monies owed to the wife by her parents in relation to her business. At paragraph 23 of his affidavit, he deposes to the wife acting as an agent, buying various goods in Australia and reselling them to her clients in Country Q. At paragraph 24, he states these goods were bought with joint matrimonial funds and her clients in Country Q transferred payment for the goods to the wife’s mother. Exhibit R2 is screenshots of the wife’s social media account where she advertises various goods for sale. One particular post in 2015 states as follows:
Today I made two deliveries, both times the car was this full. […] Thanks everyone for your support this week…
(As per the original)
In cross-examination, the wife conceded that she did run this business for a period of time. Her explanation for this is that in 2014 when she went to Country Q for her engagement celebrations, the parties brought gifts (the goods referred to above) for their relatives and family friends and everyone enjoyed them. Then in 2015, the relatives and family friends requested more of the same products and she sent the products without making any profits. In or about that time until 2016, she decided to try to profit from the sale of these goods and pursued this business venture for a period of time. However, she estimates she only made around $2,000 to $3,000 and her mother repaid her this amount in cash when she travelled to Country Q as it was not large enough to warrant paying the transfer fees for an electronic transfer. She contended she did not make any money from this business in 2017 and 2018.
The Court was not provided with any further disclosure in relation to this alleged business. This is a failure to disclose by the wife. Exhibit R9 is a letter from the husband’s solicitors to the wife’s solicitors on 1 September 2023 where disclosure is specifically requested in relation to the business and none was provided. The Court is faced with the difficulty of attempting to discern how much the wife actually earned from this business with no corroborative evidence. However, in circumstances where the husband agrees joint matrimonial funds were used, and in some cases his own personal credit card (paragraph 24 of his affidavit), the husband could have provided the Court with this evidence himself. The husband does not even provide the Court with an estimate of how much money the wife may have earned from this business and merely asserts that a part of $438,000 should not be counted as a contribution by the wife’s parents. It seems that if the wife was earning significant amounts of money from items, she would have been expending large sums of money in purchasing these goods and the husband had easy access to these bank statements. The Court cannot accept the husband’s contention without further evidence.
The Court is satisfied that the husband’s parents also made cash gifts to the husband and the wife including €6,000 on their wedding.
In closing submissions, counsel for the husband submitted that the husband’s parents contributed $100,000 around the time the Suburb P property was transferred from the parties to the husband’s parents. At paragraph 26 of his affidavit, the husband deposes to paying a deposit of $80,000 for the Suburb P property in 2015. He then explains at paragraphs 31–32 of his affidavit that the parties decided to transfer this property to the husband’s parents and that they transferred the parties $197,809 in consideration for the transfer of the property. In closing submissions, counsel for the husband submitted that the difference in these two amounts should be considered a contribution by the husband’s parents. In reply, counsel for the wife submitted that it was never mentioned in the husband’s case that this should be considered a contribution and the wife’s case is that it was always assumed that the amount the parties were transferred ($197,809) was the exact figure that the parties were owed. Without corroborative evidence, there is no way for the Court to know the equity in the Suburb P property at the time of transfer. The Court agrees that if this was going to be the husband’s contention, it needed to be expressly stated in his affidavit and the husband’s father’s affidavit to give the wife’s counsel an opportunity to cross-examine them. It would be a denial of procedural fairness for the Court to accept the husband’s contention.
The Court also accepts the substance of the husband’s evidence that his parents assisted him in the running of his business, and in the works associated with the finalisation, fitting out, and landscaping of the Suburb B property. His attempts to quantify the value of this is not accepted by the Court. The wife’s attempts to minimise the contribution of the husband’s parents is noted and rejected. Her attempts to quantify the benefits received by the husband’s parents is likewise rejected. Neither party is qualified to provide a quantification of the benefits purportedly provided, or received, in the circumstances.
The net value of the third pool in this matter is just over $2.5 million. The wife’s parents contributed $438,000, or about 20 per cent of this amount. Of course, the husband’s parents also made contributions as identified above. The contributions made by the parents were different in nature, as well as in quantum, but each were valuable contributions for the benefit of the husband and the wife.
The totality of the contributions of the husband and the wife must still be viewed holistically, whilst not ignoring the reality that her parents made a greater contribution than his. In all the circumstances, and doing the best the Court can on the evidence, as at the date of separation, contribution is assessed as to 60 per cent in favour of the wife.
The wife contends that she made a greater post-separation contribution. This arises primarily because the party’s various mortgages fell into arrears after separation, notwithstanding her diligence in making the mortgage payments for which she was made responsible by order of the Court. The Court accepts her contention that considerable arrears accrued because of the husband’s failure to make the mortgage payments on the properties for which he was made responsible. The Court accepts her evidence, corroborated by bank statements, which tends to establish that the mortgages are about $70,000 in arrears because of the husband’s intransigence. The husband’s evidence to the Court about the mortgage arrears is that he did the best he could in circumstances where the pandemic substantially reduced the income from his business, as well as the rental from the rooms in the Suburb M property. He applied for mortgage repayment relief through his lenders, and this was granted, and the Court infers that this contributed to the mortgage arrears.
Acceptance of the husband’s evidence is made more difficult, however, by a number of features of his evidence. Firstly, for reasons stated, the Court has reservations about the veracity of his financial evidence generally. Secondly, in cross-examination about rentals received from the Suburb M property it is clear that at least part of these rentals was received in cash, and that both parties before separation, and the husband after separation, had access to substantial cash, at least until such time as the wife was excluded from the matrimonial home. No accounting is given in relation to this cash. The husband does not contend that the wife has access to cash which was derived during the relationship. Thirdly, the Court does not accept what little explanation the husband gave about why his (only recently disclosed) wife, who was earning $2,000 a month, could not contribute to the household. Moreover, his obviously wealthy parents seemingly made no substantive, meaningful financial contribution to the household despite their residence there. Collectively, these three factors make it very difficult to accept, and indeed the Court rejects, the husband’s contention that he simply could not afford to pay the mortgage in the post-separation period.
When counsel for the wife was asked in closing submissions to explain how an order altering property interests as to 70 per cent in favour of the wife could be justified, she explained the contribution as at the date of separation should be assessed at 60 per cent (a submission the Court has accepted, in fact) with the remaining 10 per cent attributable to the differential in contribution towards the preservation of the assets by the wife meeting mortgage payments as ordered, that the husband has not. The Court does not accept that this post-separation contribution should be assessed at a further 10 per cent. Indeed, the Court specifically rejects counsel’s submission that an order as to 70:30 in the wife’s favour is just and equitable having regard to what counsel contended was the husband’s pervasive nondisclosure about his financial affairs. No attempt was made to explain how, in a case where no one was seeking a future needs adjustment under s 75(2), and where there was no attempt to explain the consequences, or even the potential consequences, of the husband’s supposed nondisclosure, a figure of 70 per cent could be found to be just and equitable. Indeed, there was no evidence in this case suggesting the existence of assets that the husband owned or controlled that was not on the balance sheet. The husband’s nondisclosure was ultimately to his detriment, because it led to adverse credit findings against him. It does not mean that there should be a further adjustment in the wife’s favour.
In all the circumstances the Court agrees that there should be a further adjustment in the wife’s favour for her post-separation contribution, and the husband’s negative post-separation contribution, in relation to the mortgage payments. Doing the best the Court can, the Court assesses this at 2.5 per cent.
Accordingly, the Court assesses contribution in the wife’s favour of 62.5 per cent, and the husband at 37.5 per cent, but based on the third pool only.
A JUST AND EQUITABLE ORDER
In circumstances where the third pool will be divided as to 62.5 per cent to the wife and 37.5 per cent to the husband, and the wife will receive the property in the first pool, and the husband will receive the property in the second pool, the Court is satisfied that these orders are just and equitable.
The implementation of these orders may prove complex, time-consuming, and problematic for these two fractious parties. By the time of closing submissions, the parties were in general agreement that the Suburb M property was to be sold. The minutes of order provided by each party after closing submissions recognises that each party proposes that the Suburb C property is retained by the wife, and the Suburb F property retained by the husband. Mortgages secured over these properties may need to be refinanced, of course. The wife, who currently owns Suburb K, proposes that it be transferred to the husband. The husband proposes that the wife retain it. As this judgment only provides for the wife to retain the Suburb C property so far, she will be given an opportunity to elect whether or not she wishes to retain the Suburb K property. Otherwise, it will need to be sold.
Both parties seek to retain the Suburb B property. The Suburb B property is in the wife’s sole name but is occupied by the husband and his family consisting of his wife, child and parents. The husband has had exclusive occupancy of the Suburb B property since interim orders were made on 31 March 2022. Counsel for the wife did not make any submissions in relation to why the wife should retain the Suburb B property. She also does not provide any reasons in her trial affidavit. The rationale for her proposed order is by no means clear from the evidence. It is the husband’s family home and he should be given the opportunity to acquire ownership of it, subject to financial capacity to refinance existing secured loans.
The parties should otherwise keep what they have, including their respective interests in the Country Q properties and pools one and two. As no superannuation splitting orders were proposed, those funds will remain where they are.
Therefore, the Suburb M property and the Suburb K property are likely to be sold and the net proceeds of sale are to be divided 62.5 per cent to the wife and 37.5 per cent to the husband. Further, if the husband is given an opportunity to retain the Suburb B property, then the parties’ assets and liabilities will be as follows:
Assets to be retained by the wife Value D Street, Suburb C Property $1,375,000 CBA Complete Access Account …85 as at 22.03.24 $1,711 CBA …08 as at 22.03.24 $1,621 NAB Classic Banking Account …38 as at 22.03.24 $4,722 Y Bank Account $470 Motor Vehicle 1 [in possession of Wife] $8,900 Total $1,392,424 Liabilities to be retained by the wife Value Suburb C Mortgage #...23 & #...87 as at 22.03.24 $721,552 AMEX …01 as at 22.03.24 $33 CBA Low Fee Mastercard Account …86 as at 22.03.24 $252 E Finance Credit Card as at 22.03.24 $1,814 Total $723,651 Superannuation to be retained by the wife Value Superannuation Fund 1 $135,448 Total: $804,221 Assets to be retained by the husband Value H Street,Suburb BProperty $1,650,000 Motor Vehicle 2 $18,750 GStreet,Suburb FProperty $580,000 X BankAccount…29 $579 Z BankAccount…91 $274 CBA Term Deposit …83 $10,000 Shares(1000shares) $3,700 Addback: Funds from sale of jointly owned Motor Vehicle 3 received into the Husband’s X Bank account in late 2021 $39,000 Addback: Funds from NAB #...77 on 2 July 2021 and 26 August 2021 transferred to parents of the Husband without explanation $19,000 Addback: Funds from sale of Motor Vehicle 4 per correspondence from the Husband of mid-2023 $8,000 Total $2,329,303 Liabilities to be retained by the husband Value Suburb B Mortgage #...37 & #...34 as at 22.03.24 $749,686 Suburb F Mortgage #...00 as at 22.03.24 $493,018 ANZVisaAccount#...58 $4,461 Total $1,247,165 Superannuation to be retained by the husband Value Superannuation Fund 2 $115,359 Total: $1,197,497 Pool total: $2,001,718
If the wife is to receive 62.5 per cent of the total pool, she would need a total of $1,251,073.75. This means she needs an additional $446,852.75. Therefore, the husband will be given 42 days to refinance the Suburb B mortgage and pay the wife this sum.
If the parties agree to a better way of altering their property interests consistent with the Court’s decision, they are free to file consent orders in chambers within 14 days.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 10 May 2024
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