Kouma & Kouma
[2023] FedCFamC2F 261
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kouma & Kouma [2023] FedCFamC2F 261
File number(s): PAC 250 of 2021 Judgment of: JUDGE MYERS Date of judgment: 10 March 2023 Catchwords: FAMILY LAW – property proceedings. Legislation: Family Law Act 1975 (Cth), Part VIIIAB, ss 75(2) , 75(2)(b), 79 Cases cited: Stanford v Stanford [2012] HCA 52 Division: Division 2 Family Law Number of paragraphs: 86 Date of hearing: 29 June 2022 Place: Parramatta Counsel for the Applicant: Ms Kaiti Solicitor for the Applicant: Dean Lawyers The Respondent: Self-represented litigant ORDERS
PAC 250 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KOUMA
Applicant
AND: MR KOUMA
Respondent
order made by:
JUDGE MYERS
DATE OF ORDER:
10 MARCH 2023
THE COURT ORDERS THAT:
1.That within 28 days of today’s Orders, the parties do all things and sign all documents necessary to cause the property known as B Street, Suburb C to be listed with a real estate agent as 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 said property shall occur no more than four (4) weeks from the date of listing.
2.In the event that B Street, Suburb C does not sell by public auction in accordance with order 1 above then the property shall be resubmitted for sale by public auction at two (2) monthly intervals from the last public auction until the said property shall be sold and that the reserve price of any and all subsequent auctions shall be two percent (2%) less than the reserve price of the preceding auction.
3.In the event that the parties are unable to agree as to an agent to act on the sale of B Street, Suburb C then the Wife 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. That the cost charged by the said President shall be paid equally between the parties.
4.The parties shall cooperate with the said real estate 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 pay the cost of maintaining full insurance on the property at all times.
5.That the parties shall be equally liable for paying the loans owed to the National Australia Bank secured over B Street, Suburb C from the date of these orders until settlement of the sale of B Street, Suburb C.
6.That both parties shall be entitled to register as bidders and thereafter bid at all public auctions for the sale of B Street, Suburb C. Should either party be a successful bidder on B Street, Suburb C the parties are granted leave for the purposes of relisting the matter before the court for the purposes of seeking ancillary orders that would alleviate the need for the payment of stamp duty on the transfer of the property to one of the parties.
7.That the proceeds of the sale of B Street, Suburb C shall be applied as follows:
(a)Payment of all real estate agent’s commission, advertising expenses and auction fees on sale;
(b)Payment of all legal and all other proper costs of acting on the conveyance for the sale;
(c)Pay all adjustments for council rates, taxes and other charges;
(d)Pay a sum sufficient to payout Energy Australia for the outstanding electricity account owing in respect of B Street, Suburb C;
(e)Payout out all loans owing to the National Australia Bank discharging the mortgage registered over B Street, Suburb C;
(f)Pay the sum of $4,238 owed to D School for outstanding school fees or such other sum that is owing and payable;
(g)Pay the sum of $26,189.20 to the Wife;
(h)Pay the sum of $75,808 to the Husband;
(i)Pay the then remaining balance equally between the Wife and Husband.
8.That the parties shall divide the furniture and furnishings located in and about B Street, Suburb C in the following manner:
(a)The parties shall flip a coin with the Wife to call the toss;
(b)The winner of the toss shall be entitled to make first pick of any item of furniture and furnishings located in and about B Street, Suburb C;
(c)The parties shall thereafter take about turns picking items of furniture and furnishings located in and about B Street, Suburb C until such time as all of the furniture and furnishings located in and about B Street, Suburb C has been divided between the parties;
(d)The Wife is to place a pink sticker on items she has selected and the Husband blue stickers on the items he has selected.
9.That otherwise as provided for in these orders the parties are declared to be the beneficial owners of all items of property including chattels, motor vehicles, superannuation, money in bank accounts, shares in public or private companies, real property, insurance policies and the like that stand in that parties name or are in that parties possession as at the date of these Orders.
10.That should either party neglect to do any act and or things signing 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 to sign such documents on behalf of such party.
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 Kouma & Kouma has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MYERS J:
This is a final property decision in the matter of Kouma & Kouma.
The Applicant is Ms Kouma (aged 59 years).
The Respondent is Mr Kouma (aged 60 years).
The Applicant Wife seeks orders as contained in her Case Summary Document filed on 29 March 2022, as follows:
(1)That pursuant to section 79(1)(a) of the Family Law Act 1975 an order as follows:
(2)That within 90 days from the date of this order, the respondent husband will transfer to the applicant wife his interest in B Street, Suburb C (“the property”) and simultaneously with the transfer the parties will discharge the existing mortgage with NAB.
(3)Contemporaneously with the transfer in order 2, the applicant wife will pay to the respondent husband $100,000 (one hundred thousand dollars), by transferring the funds into the respondent husband’s nominated bank account.
(4)Applicant wife to refinance the mortgage under her name
(5)Both parties jointly pay conveyancing fees and any outstanding statutory charges on the property to the date of settlement.
(6)The applicant wife indemnifies and keep the respondent husband indemnified in relation to all debts in the applicant wife’s sole name and debts held jointly in the name of the applicant wife and any other person.
(7)The respondent husband indemnifies and keep the applicant wife indemnified in relation to all debts in the respondent husband’s sole name and debts held jointly in the name of the respondent husband and any other person.
(8)Subject to these orders, the applicant wife and respondent husband shall be and hereby are declared to be the sole and absolute owners at law and in equity of:
(a)All items of furniture in their use, furnishings, chattels and jewellery in their possession custody and control;
(b)All monies held in cash or in bank accounts solely in their respective names;
(c)All motor vehicles held in their respective names;
(d)All contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent, or expectant, held in their possession, title or name, which are not otherwise dealt with in these orders.
(9)In the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these orders then pursuant to Section 106A Family Law Act that the Registrar of the Federal Circuit and Family Court of Australia, Parramatta Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as necessary to give validity and operation to same.
The Respondent Husband seeks orders as contained in his Case Summary Document filed 14 June 2022, as follows:
(1)That pursuant to section 79(1)(a) of the Family Law Act 1975 an order as follows:
(2)That within 90 days from the date of this order, the Applicant Wife will transfer to the Respondent Husband her interest in B Street, Suburb C (“the property”) and simultaneously with the transfer the parties will discharge the existing mortgage with NAB.
(3)Contemporaneously with the transfer in order 2, the applicant wife will pay to the respondent husband $7,400 (seven thousand four hundred dollars), by transferring the funds into the respondent husband’s nominated bank account.
(4)Respondent Husband to refinance the mortgage under his name.
(5)Both parties jointly pay conveyancing fees and any outstanding statutory charges on the property to the date of settlement.
(6)The applicant wife indemnifies and keep the respondent husband indemnified in relation to all debts in the applicant wife’s sole name and debts held jointly in the name of the applicant wife and any other person.
(7)The respondent husband indemnifies and keep the applicant wife indemnified in relation to all debts in the respondent husband’s sole name and debts held jointly in the name of the respondent husband and any other person.
(8)Subject to these orders, the applicant wife and respondent husband shall be and hereby are declared to be the sole and absolute owners at law and in equity of:
(a)All items of furniture in their use, furnishings, chattels and jewellery in their possession custody and control;
(b)All monies held in cash or in bank accounts solely in their respective names;
(c)All motor vehicles held in their respective names;
(d)All contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent, or expectant, held in their possession, title or name, which are not otherwise dealt with in these orders.
(9)In the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these orders then pursuant to Section 106A Family Law Act that the Registrar of the Federal Circuit and Family Court of Australia, Parramatta Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as necessary to give validity and operation to same.
By way of background
The Husband was born in 1962 and the Wife was born in 1963.
The Husband gave evidence that the Wife is a graduate of E University and that he is a graduate of the F University. It is not disputed that at the time of the hearing the Wife worked as a health care worker and the Husband as an educator.
The Wife suggests that that the parties met in Country G in 1989, were working at the time, liked each other and decided to get married. The Husband suggests that the parties met sometime around 1990 and decided to marry each other on the basis (amongst other things) of their educational qualifications and how these “could be harnessed to improve their overall financial wellbeing because education especially in Country G remains a strong predictor of income”.
For the purposes of these proceedings it is unimportant to make a finding as to the exact date the parties first met or formed a relationship particularly where there is no contest that either party was in a better financial position than the other at that time. What the court does accept is that the parties met and formed a relationship in about 1989 to 1990.
Sometime in 1990 the Husband travelled and stayed in the United Kingdom (‘UK’) on a working visa and then returned to Country G whereupon the parties married. It is not disputed that the parties married in 1990.
It is the Wife’s evidence that after the marriage the Husband returned to the UK and that in 1991 the Wife then moved to the UK to join the Husband.
Both parties agree that they immigrated to Australia in 1992. In 1992, the parties’ son Mr H was born.
The Wife suggests that sometime in 1993, the Husband commenced employment as an allied health worker and then later in the same year started working for the Employer J.
The Husband gave evidence that he was employed by the Employer K in 1993 and all his income went into the joint account for the parties’ mutual benefit.
The Wife gave evidence that sometime in 1993, the Husband established what she described as “a side business buying, selling and repairing secondhand machinery”.
The Wife gave further evidence that in around 1993, she commenced working on a part time basis at a “Employer L” and that at that time she would leave the parties’ son in childcare and then collect him after she finished work.
The Wife deposed that in 1994, she commenced full time work at Employer M. The Husband gave evidence that in 1994, he was employed by the Employer J as an educator.
In 1995, the parties’ second child Mr N was born.
The Wife suggests that sometime in 1996, she returned to work on a part-time basis and at that time would to drop the parties’ children to day-care.
The Husband gave evidence that around 1996/97 his employer decided to close the Employer M and that the Wife opted to take the redundancy package that was offered and decided to open what he described as a “shop on Location O”.
The Husband suggested that in order to pay for the cost of refurbishing the shop the Wife asked him to establish an overdraft facility with the Bank P.
The wife gave evidence that in 1999, the Husband received a compensation payout of approximately $40,000.00 from the Employer M. The wife suggested that out of the payment he gave the Wife $2,000.00 and sent the rest of the money to Country G allegedly telling the wife he was investing the money in a business venture in Country G.
The wife suggests that it was actually in 1999 that she was made redundant and that she then started her own business. The Wife suggested the business did not go too well and that sometime in 2000, she re-commenced work as an allied health worker.
It is uncontroversial that in 2001, the parties’ third child Ms Q was born.
Both parties gave evidence significantly critical of the other having travelled to Country G at various times during the period of their marriage. Vague evidence was given and assertions made by both parties that the other had business and or property interests in Country G. That evidence fell well short of the court accepting that either party owned or had an interest in any continuing business interests in Country G.
It is not disputed that the parties purchased land in B Street, Suburb C NSW and then built a home on that land.
On the topic the Husband deposed that:
·Sometime towards the end of 2001 or early 2002, he bought land from Company R with a small mortgage from the National Australia Bank and a 15% deposit saved from what he described as a part-time business.
·He engaged a draftsperson to design a plan which he submitted to the Council in the form of a Development Application.
·He obtained a license for the Department of Fair Trading as an Owner Builder, obtained construction finance from the National Australia Bank to build the home that the parties have remained living in since moving in around late 2002.
The court notes that despite the Husband suggesting that “he purchased the land” the husband conceded at paragraph 25 of his affidavit that the loans for the purchase of the land and construction of the home were obtained in both names and the property was jointly owned by the parties.
The Wife gave evidence at paragraph 28 of her affidavit that in 2002, she and the Husband purchased property at B Street, Suburb C NSW, for $360,000.00. The Wife further deposed as to being unsure how much deposit they paid, but that she knew the parties paid a minimum deposit from their joint savings.
The parties were significantly critical of the other party for what they saw as the other’s lack of contributions, poor work ethic and poor business acumen.
The Wife criticised the Husband suggesting he would at times go overseas for months and she would have to look after the children on her own. While the Wife conceded the Husband would pay the mortgage she deposed to having to provide for the children’s food, clothing and all other needs. The Wife suggested this was very difficult for her but that she continued on providing for the children’s needs because she was the mother and had no choice. The Wife admitted in cross examination that she had travelled to Country G in 2000 for about 12 weeks and then in 2008 for about 10 weeks. The Wife gave evidence that during her time in Country G she sold second hand clothes and that she earned a few thousand dollars that she used to purchase 5 blocks of land in Country G. It appeared that the Wife did not secure title to the land. It was the Wife’s evidence that she ultimately lost the land when there was a change of Chief’s.
The Wife was critical of the Husband in 2004, when he planned to invest some money in a new business venture in Australia. The Wife suggested the Husband forced her to borrow money against the matrimonial home. The Wife conceded that while she did not agree at first, after a lot of arguments she gave in. The Wife further suggested that the Husband had promised her that he would give her half of whatever money he withdrew. The Wife suggested the Husband went on to withdraw $90,000.00 from the line of credit account against the former matrimonial home, failed to give her any money, and used all the funds on his business venture.
At paragraph 34 of the Wife’s affidavit, the Wife suggested that the Husband promised her that he would return the $90,000.00 into the line of credit account but that he never did. Instead the Wife gave evidence at paragraph 35 of her affidavit that the sum of $90,000.00 was used by the Husband to purchase bathrooms supplies from China and that the Husband went to China and to Country G, with a Chinese man, as part of the business venture. The Wife suggested that the bathroom supplies were sold, but was not sure what happened with the proceeds of the sale.
The Wife also suggested that the Husband had an interest in a property development deal in S Street, Suburb T. Having heard the evidence on the topic the court finds that the Husband with other business partners obtained an option to purchase property in S Street, Suburb T with a view to obtaining a DA, and then developing the property. Ultimately the option to purchase expired, the option fee was lost and any work done on obtaining a DA came to nothing. The Husband has no interest in a property development deal in Suburb T. The court does not accept that the Husband engaged in any wasteful behaviour in his failed business dealings and ventures, rather the court views the Husband’s attempts to start these ventures was a genuine attempt by the Husband to better the parties’ financial position.
The Husband suggested that about a month or two after the parties moved into their new house, the applicant decided to stop work. The Husband criticised the Wife where he suggested she stopped work without any prior consultation with him and that her decision had a negative impact on the parties’ finances.
The Husband further criticised the Wife suggesting that during what he described as a critical phase of the house construction, he had to obtain a personal loan to “accelerate” work before the final drawdown on the parties’ construction loan was possible.
The Husband deposed that:
·Paying the mortgage and a personal loan was extremely hard where he did not earn enough money to pay both loans.
·At that time there was a dire need to refinance to consolidate and pay off the personal loan where the two loans together cost where costing him over $3200 a month.
·He told the wife to hold off stopping work until they complete a refinance to consolidate the debt where they were in danger of losing the house and that the wife refused and told the Husband that “God asked me to stop work”.
·That in order to forestall a default on the mortgage, the Husband had to make what he described as difficult choices including doing lots of extra work to secure a loan consolidation that significantly reduced the monthly mortgage instalments.
·That the Wife stayed at home and made no contributions to the financial maintenance of what he termed the “estate” for the next five years or more and that the Wife made limited non-financial contributions.
The Husband complained bitterly at paragraph 30 of his affidavit he had to “go out, spending hours after my regular work, to earn extra cash to keep the estate afloat, denying me the enjoyment of life and the pursuit of happiness”. While at paragraph 31 he suggested the Wife “spent her time attending one prayer meeting after another, waking up exceedingly early to pray thus disturbing our sleep, and then going back to bed in the morning” when the children and Husband “needed her most to prepare for school”.
The Husband blames the wife for having conceived his ultimately failed business ventures where he stated that the “idea to start a construction business and later a transport business was necessitated by her (the Wife’s) unwillingness to help with the family finances”. Having heard the Wife’s evidence the court does not accept the husband’s criticisms as legitimate, rather the court accepts that at times the Wife did not work because she was looking after the parties young children.
The Husband suggested at paragraph 35 of his affidavit that the Wife had registered a church called “U Church” and that he was not sure what happened to the registered entity. The court does not accept that the Wife has any financial interest in a church.
The Husband is further critical of the wife where he suggests that he lost various family members and sought the wife’s permission to put mortgage payments on hold with the National Australia Bank on the basis of hardship while the Husband travelled overseas to attend funerals but that the wife refused to sign the form. Ultimately the Husband travelled overseas, for a period did not pay the mortgage and then on his return had to make arrangements with the National Australia Bank (NAB) to catch up on mortgage payments and capitalise some of the arrears.
It is hard for the court to accept the apportionment of blame each party heaps on the other. The relationship between the parties was strained at times, and the court views the parties criticism of one another as a retrospective view of their failed relationship tainted by their own hurt and dissatisfaction rather than legitimate complaints about the other’s conduct the court would take into account when determining a just and equitable property adjustment between the parties.
At paragraph 60 of the Husband’s affidavit he accepted that the Wife started paying the full mortgage from October 2020 to date, while at paragraph 61 the Husband suggested that he continues to make a small contribution to the line of credit, pay the rate, which he suggested are is deeply in arrears, some utility bills that are in arrears. The parties remain living separated under the same roof.
The Husband disclosed holding insignificant sums of superannuation given his history of work namely interests in Super Fund 1 approximately $7,151.00, Super Fund 2 $2,682.00 and a self-managed superannuation fund worth $3,734.00. Counsel for the Wife cross examined the Husband on the topic of his superannuation balances that enlightened the court as to how much superannuation the Husband actually had that is set out below:
Ms Kaiti: “Sir, you were working with the [Employer M] since 1994, I think you said earlier, is that right?”
Mr Kouma: “Yes”
Ms Kaiti: “Would you agree with me that you would have accumulated a large amount of super in that 28-year period”
Mr Kouma: “I don’t know”
Ms Kaiti: “Now you’re saying that you have approximately $2682 in [Super Fund 2]; is that right, that’s your evidence?”
Mr Kouma: “Yes, I think so”
Judge: “At some stage did you transfer some money out of your [Super Fund 2] fund into your self-managed super fund”
Mr Kouma: “yes”
Judge: “How much did you transfer into your self-managed super fund, approximately, to the best of your recollection”
Mr Kouma: “It could be about 130,000”
The Husband was further cross examined on the whereabouts of the monies transferred into the self-managed superannuation fund. What became apparent was that the Husband’s self-managed superannuation fund was not a compliant fund and that the Husband has used the funds to buy property in some form in Country G. Given the complete lack of disclosure around the use of the superannuation funds by the Husband the court proposes to add back the sum of $130,000 as notional superannuation held by the Husband to be apportioned between the parties by the court.
Issues regarding the inclusion of certain debts were a topic of cross examination and submissions. In particular the Husband sought the inclusion of two debts that he asserted related to the failed transport business. Despite the Husband being self-represented and his ineffectual cross examination of the Wife, on the topic of the debts, the court is able to and does find that the debts being the Husband’s ANZ credit card debt and Company V loan both related to the operation of the failed business and should be included as a liability of the parties. The Husband made submissions during the hearing that a credit card debt he alleges to owe to the National Australia Bank should be taken into account as a liability of the parties. The Husband suggested that the debt was incurred supporting the family. However given the husband’s failing around disclosure in respect of this alleged debt the court does not take it into account. The court was however satisfied that despite failing around the Husband’s evidence, submissions and disclosure with respect to the Husband’s ATO debt, that it is a debt that accrued during the running of the Husband’s business during the period of the parties’ relationship and on that basis the takes into account the ATO debt.
The court finds the assets and liabilities of the parties available for distribution as follows:
Description
Value
ASSETS
B Street, Suburb C
$1,050,000
Wife’s Motor Vehicle 1
$10,000
Wife’s CBA account #...27
$27
Wife’s Bank W account #...57
$88
Wife’s Bank Y #...31
$6000
Husband’s Bank Y
$100
Husband’s Motor Vehicle 2
$10,000
Furniture, furnishings and effects
(to be divided)
Total: $1,076,215.00
Ownership
Description
Value
LIABILITIES
Joint
Joint Mortgage with NAB (including line of credit)
$339,378
Wife
Car loan with Company Z
$6,903.00
Husband
Bank AB credit card
$13,059
Husband
ANZ Business credit card
$6,900
Husband
Company V Loan
$45,000
Husband
ATO GST Debt
$1,737
Husband
Company Z
$10,000
Joint
outstanding council rates
Approx. $5,000
Joint
Electricity Account Energy Australia
Approx. $3,000
Joint
D School (school fees)
$4,238
Total: $435,215
Ownership
Description
Value
SUPERANNUATION
Wife
Super Fund 2
$25,834
Wife
Super Fund 3
$52,260
Husband
Super Fund 1
$7,151
Husband
balance in Self-Managed Superannuation Fund
$3,734
Husband
Addback - notional superannuation SMSF
$130,000
Husband
Super Fund 2
$2,682
Total: $221,661
In Stanford v Stanford [2012] HCA 52, the High Court observed that in most cases a just and equitable requirement is readily satisfied by observing that, as the result of choices made by one or both of the parties, the husband and wife are no longer living in a marital relationship and it will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of the property by the husband and wife. No less importantly, the express or implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship.
The court, firstly, finds that it is just and equitable to make an adjustment of property as between the wife and husband, noting the assets and liabilities are not evenly distributed between the parties.
The court is required to consider the legislative pathway outlined at Part VIII of the Family Law Act.
The court having initially found that that it is just and equitable to make a property settlement order now turns to the question of the parties’ contributions.
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 parties started their relationship in an equal financial position where neither party had any discernible property and certainly no real property assets. Despite the significant criticism laid at the feet of the other, both parties work to the level of their ability and at times when the Husband was working in paid employment and the Wife was not, she was busy looking after the children. The court does not accept any arguments advanced in the proceedings that either party was wasteful. The court does not accept that the monies lost in any failed business ventures should be held against the husband as diminishing his contributions. It is always important to take into account together financial wins and losses. The parties are clearly both entrepreneurial and to their credit tried hard to better their financial position through hard work. Unfortunately some business ventures were unsuccessful.
The court notes that the Husband is currently employed full-time as an educator at Employer D and has done so since the beginning of 2022. In cross examination the Husband conceded that his income is close to $120,000 a year and that he had not paid monies towards the mortgage since 2020 where the following exchange took place:
Ms Kaiti: “You haven’t made any mortgage repayments since 2020. Is that right, sir?”
[Mr Kouma]: “Yes, that’s right. I haven’t made mortgage payments since 2020. Yes.”
It was submitted on behalf of the Wife that the evidence is that the Husband is living in the former matrimonial home earning an income and paying a pittance towards the mortgage and line of credit. While over the period of the parties’ relationship this is not a significant period it is still a factor the court takes into account.
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. While the court notes that Husband managed the build of the former matrimonial home the evidence on the topic is scant and as such that it is hard for the court to make a significant adjustment for the Husband based on this factor however his work should not go unnoticed by the court.
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 were greater than those of the Husband.
The court finds the Husband’s and the Wife’s contributions balancing out such that there should be no adjustment between them taking into account contributions.
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) of the Act as they are relevant to the facts in the proceedings.
At the date of the hearing the Wife was aged 59 years and the Husband 60 years.
The Wife made no submissions in relation to health while the Husband submitted that he suffers several medical conditions and suffers PTSD and anxiety disorders and mental health vulnerabilities partly caused by the Wife. The Husband is not an expert such that the court could give weight to his opinions regarding his health and the likelihood of surgery.
The Wife works as a health care worker and the Husband an educator. The parties have what might be best regarded as similar incomes and work hard in important jobs. They do not have financial resources available to them the type of which is referred to at section 75(2)(b). Despite the Husband suggesting poor health the court finds that both parties have the physical and mental capacity for appropriate gainful employment.
Neither party has the care or control of a child of the marriage who has not attained the age of 18 years.
This is not a case where there are commitments beyond what would normally be expected for each of the parties that are necessary to enable that party to support himself or herself and neither party has a duty to support or maintain a child or another person.
Neither party appears eligible for 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 their adult children.
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.
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 adjustment between the parties based on these factors.
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. While 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 50% to the Husband and 50% to the wife it is necessary to consider two matters in order that the court make orders that are in all the circumstances just an equitable. The first issue is that of the adjustment that will need to be made between the parties based on superannuation. The court has notionally added back to the husband the sum of $130,000. The superannuation pool is $221,661. An equal adjustment of superannuation would see each party receive $110,830.50. The Husband has superannuation in the sum of that pool the husband $136,416. The Husband would ordinarily need to split to the wife the sum of $25,585.50. As the court has notionally added back the sum of $130,000 the Husband has only $13,567 available to him to split. If the husband retained his superannuation interests the wife would therefore need to receive the sum of $32,736.50 so as to make even the superannuation interests of the parties. Given the issues around lack of disclosure by the Husband in respect of his superannuation the court is concerned that making a splitting order against the husband’s superannuation could be fraught where the husband could conceivably transfer around funds including transferring further monies from his self-managed superannuation fund to Country G. Rather than risk the possibility of a S.79A application being made in the future the court finds it is just an equitable to adjust the disparity in superannuation by awarding the wife cash from the sale of the former matrimonial home in lieu of superannuation but at a discount of 20% where the funds are immediately available to her without need for release from her superannuation fund or liability for tax on the release. As such the Wife will receive an adjustment of some $26,189.20 from the sale proceeds of the former matrimonial home.
The second issue is that of the parties’ desire to retain the former matrimonial home. There are usually significant financial benefit where one of the parties to property proceedings retains and receives the other’s share pursuant to orders made under the Act by this court. That can include savings on Stamp Duty and real estate agent’s commission. Sadly it appears to the court both parties have on their own evidence a poor credit rating and the court doubts either party’s ability to refinance the existing mortgage and pay the other out that party’s share. As a means of resolving the issue the court proposes to allow the former matrimonial home to be sold by public auction and allow the parties to bid at the auction or auctions of their home.
In order that there be an equal distribution of property between the parties it will be necessary to make a cash adjustment between then from the proceeds of sale of the former matrimonial home noting the non-superannuation assets and liabilities are distributed unevenly between them.
The wife has assets being:
Description
Value
ASSETS
Motor Vehicle 1
$10,000
CBA account #...27
$27
Bank W account #...57
$88
Bank Y #31
$6000
The wife has liabilities being:
Description
Value
LIABILITIES
Car loan with Company Z
$6,903.00
Net: $9,212
The Husband has assets being:
Description
Value
ASSETS
Bank Y
$100
Motor Vehicle 2
$10,000
The Husband has liabilities being:
Description
Value
Bank AB credit card
$13,059
ANZ Business credit card
$6,900
Company V Loan
$45,000
ATO GST Debt
$1,737
Company Z
$10,000
Net: - ($66,596)
Taking into account the Wife’s net positive position and the Husband’s net negative position of property and debts in their name, excluding superannuation it will be necessary to make an adjustment to the Husband of $75,808 in order to achieve an equal distribution between the parties.
The court will make an order for the purposes of dividing the furniture and furnishings in the former matrimonial home on turn-about pick basis.
For the reasons set out above the Court makes the following orders:
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Myers. Associate:
Dated: 10 March 2023
0