Leon & Bonnay (No 2)
[2024] FedCFamC1F 305
•9 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Leon & Bonnay (No 2) [2024] FedCFamC1F 305
File number: MLC 2058 of 2021 Judgment of: HARTNETT J Date of judgment: 9 May 2024 Catchwords: FAMILY LAW – PARENTING –Where the parties agree to equal shared parental responsibility – Where the parties have a highly conflictual co-parenting relationship – Where credit issues – Where the mother’s evidence is preferred – Where the ambit of the dispute was narrowed to the children’s spend time with each of the parents during school terms – An intractable dispute – Where the mother demonstrated a willingness to support the children’s relationship with the father – Where the father pursued an equal time arrangement – Where the children’s best interests are promoted by the proposal of the mother namely the children live with the mother for nine nights a fortnight and with the father for five nights a fortnight.
FAMILY LAW – PROPERTY – Where each of the parties sought an alteration of property interests – Where financially controlling and coercive behaviour found resulting in a Kennon adjustment – Where husband failed in his duty of disclosure – Where a s 75(2) adjustment is made – Where orders made for the sale of real properties – Where orders made for the retention of other real properties.
Legislation: Evidence Act 1995 (Cth) ss 131, 140
Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 61C, 61DA, 65DAA, 75, 79, 90SM, 102NA, 106A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.01, 6.06
Cases cited: Akhtar & Gaber (No 3) [2018] FamCAFC 208
Bevan & Bevan (2013) FLC 93-545
Black v Kellner [1992] FamCA 2
Blandford & Esmore [2022] FedCFamC1A 67
Blinko & Blinko [2015] FamCAFC 146
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Farrah & Cisek [2024] FedCFamC1A 38
Goode & Goode (2006) FLC 93-286
Kennon & Kennon (1997) 22 Fam LR 1
Lovine & Connor (2012) FLC 93-515
M & M (1988) 166 CLR 69
Maine & Maine (2016) 56 Fam LR 500
Mallet v Mallet (1984) 156 CLR 605
Mulvany & Lane (2009) FLC 93-404
Petruski v Balewa (2013) 49 Fam LR 116
Roverati & Roverati (2021) FLC 94-027
Russell & Close [1993] FamCA 62
Stanford v Stanford (2012) 247 CLR 108
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Weir & Weir (1992) 16 Fam LR 154
Division: Division 1 First Instance Number of paragraphs: 464 Date of last submissions: 24 April 2024 Date of hearing: 14-17, 21 November 2022; 9-10 March 2023; 12 February 2024; and 15 April 2024 Place: Melbourne Counsel for the Applicant
(15 April 2024)Dr Smith Counsel for the Applicant
(12 February 2024):Mr Bartfeld KC Counsel for the Applicant
(9-10 March 2023):Dr Smith Solicitor for the Applicant
(9 March 2023 – 15 April 2024):Lander & Rogers The Applicant
(14-21 November 2022):Litigant in Person Counsel for the Respondent: Mr Tatarka Solicitor for the Respondent: Taussig Cherrie Fildes ORDERS
MLC 2058 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LEON
Applicant
AND: MS BONNAY
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
9 MAY 2024
THE COURT ORDERS THAT:
PARENTING
1.All previous parenting orders be discharged.
2.The applicant husband (“the husband”) and the respondent wife (“the wife”) have equal shared parental responsibility for the children X born 2012 and Y born 2014 (“the children”).
3.The children live with each of the husband and the wife:
(a)in a fortnightly cycle during school terms:
(i)with the wife for nine consecutive nights from the commencement of school (or 9.00am if a non-school day) on Monday until the conclusion of school (or 4.00pm if a non-school day) on Wednesday of the following week; and
(ii)with the husband for five consecutive nights from the conclusion of school (or 4.00pm if a non-school day) each second Wednesday of the term to the commencement of school (or 9.00am if a non-school day) on the following Monday.
(b)during all school term holidays:
(i)in each odd numbered year, for the first half with the wife and the second half with the husband; and
(ii)in each even numbered year, for the first half with the husband and the second half with the wife.
(c)During the long summer holidays:
(i)in each odd numbered year:
A.from the conclusion of the children’s Term 4 (if the children attend different schools, the later concluding date) until 6.00pm on 24 December, on a week about basis or so much as is left of the week prior to 24 December, with the wife to have the first week; and
B.from 6.00pm Boxing Day to 12.00pm noon on the day two days prior to the commencement of school (if the children attend different schools, the earlier commencement date), on one two‑week about basis, with the wife to have the first two week period, followed by an equal sharing (to commence with the wife) of the remaining days between the expiration of the husband’s two week period and 12.00pm noon on the day two days prior to the commencement of school as described herein.
(ii)in each even numbered year:
A.from the conclusion of the children’s Term 4 (if the children attend different schools, the later concluding date) until 6.00pm on 24 December, on a week about basis or so much as is left of the week prior to 24 December, with the husband to have the first week; and
B.from 6.00pm Boxing Day to the commencement of school (if the children attend different schools, the earlier commencement date), on one two-week about basis, with the husband to have the first two week period, followed by an equal sharing (to commence with the husband) of the remaining days between the expiration of the wife’s two week period and 12.00pm noon on the day two days prior to the commencement of school as described in Order 3(c)(i)(b) above.
(iii)in each year:
A.from 12.00pm noon on the day two days prior to the commencement of the new school year (if the children attend different schools, the earlier commencement date) the children live with the wife.
4.For the purpose of Order 3(a) herein:
(a)a “non-school day” is a non-curriculum day as determined by the children’s school (or each of their schools if the children attend different schools) or public holiday (and does not include, for example, a school day when the children are remote learning or are unwell); and
(b)the timing of the rotating fortnightly cycle during school terms shall continue throughout the calendar year as though such time is not interrupted by the school term holidays or long summer holidays.
5.For the purpose of Order 3(b) herein:
(a)the school term holidays shall commence at the conclusion of school on the last day of the school term (and if the last day of the school term differs for each of the children, the later of the two days is deemed to be the last day of the school term for both children);
(b)the school term holidays shall conclude at the commencement of school on the first day of the school term (and if the first day of the school term differs for each of the children, the earlier of the two days is deemed to be the first day of the school term for both children); and
(c)changeover shall occur at 9.00am on the middle day of the school term holidays where such holidays have a total uneven number of days, and where there are a total even number of days, the children shall spend an additional night with the parent with whom the children are spending time during the first half of the holidays and changeover shall occur at 9.00am the following morning.
6.Order 3 herein be suspended in its operation on the following special occasions, and the children spend time with each of the husband and the wife as follows:
(a)on Mother’s Day, the children spend time with the wife from 9.00am until 5.00pm;
(b)on Father’s Day, the children spend time with the husband from 9.00am until 5.00pm;
(c)on each of the children’s birthdays, if the husband and the wife are otherwise unable to agree or convene a joint celebration and the children are not otherwise spending time with both of their parents on that day, the children spend time with the parent with whom they do not wake up that morning from:
(i)10.00am to 2.00pm if the children are not attending at school or remote learning that day; or
(ii)after school to 7.00pm if the children are at school or remote learning.
(d)on each of the parents’ birthdays, from 9.00am on their birthday until 9.00am the following day;
(e)if the children do not spend alternate Easter with the parties by virtue of the operation of Order 3(b) herein, the children shall, from 9.00am on Good Friday until 5.00pm on Easter Monday, spend time:
(i)with the wife in each odd numbered year; and
(ii)with the husband in each even numbered year.
(f)for Christmas, unless otherwise agreed:
(i)from 6.00pm on 24 December until 3.00pm Christmas day in each even numbered year with the wife, and in each odd numbered year with the husband; and
(ii)from 3.00pm on 25 December until 6.00pm Boxing Day in each odd numbered year with the wife, and in each even numbered year with the husband.
7.For the purpose of changeover, where changeover does not take place at the children’s school, the wife (or her agent) collect the children from the husband’s residence at the commencement of the children’s time with her and the husband (or his agent) collect the children from the wife’s residence at the commencement of the children’s time with him.
8.Each of the husband and the wife be at liberty to telephone or video call the children during periods in which they are not in their care between 6.00pm and 7.00pm provided that such communications are no longer than 15 minutes in duration and the parents otherwise facilitate the children contacting the other party whenever they request and ensure an electronic device is available for them to use for this purpose.
9.Each of the husband and the wife are permitted to travel interstate and overseas with the children during times the children are in that parent’s care, provided that such travel occurs outside school hours unless otherwise agreed, and that:
(a)for interstate travel, the travelling parent give to the other parent no less than 7 days written notice of their intention to travel, the details of the destination, accommodation and contact telephone numbers for the children during such travel; and
(b)for overseas travel, the travelling parent give to the other parent:
(i)no less than 30 days written notice of their intention to travel, the details of the destination, accommodation, and contact telephone numbers for the children during such travel; and
(ii)no less than 14 days prior to their departure, copies of the children’s airline tickets and travel itineraries.
10.The wife retain possession of the children’s passports and release the passports to the husband at least 14 days prior to the children’s departure for overseas travel with the husband (in accordance with Order 9) and the husband return the children’s passports to the wife no later than 7 days after returning from overseas.
11.If the wife or husband travel either interstate or overseas and are unable to care for the children for two or more consecutive nights during which the children are in their care pursuant to these orders, the other parent be provided with the first opportunity to care for the children during that period.
12.Each of the husband and the wife:
(a)are permitted to attend school and extracurricular events to which parents would ordinarily be invited, including but not limited to concerts and parent teacher interviews; and
(b)do all such things and sign all documents necessary to permit each of them to obtain all documents relating to each of the children’s education, including but not limited to reports, notices and newsletters, applications, and extracurricular activities.
13.If one or both children are ill or otherwise require medical attention:
(a)the husband and wife forthwith inform the other of the child’s condition and provide details of any treatment (including medication and other matters which must be attended to); and
(b)each parent be permitted to attend the children’s medical appointments, including when the children are not in their respective care.
14.Each of the husband and the wife provide to the other 28 days’ written notice of any proposed change of address and otherwise keep the other always informed of their telephone numbers and email addresses.
15.Each of the husband and the wife by themselves and/or their agents are hereby restrained by injunction from:
(a)abusing, insulting, belittling, or otherwise denigrating the other, or any member of the other parent’s family, to, or in the presence and/or hearing of, the children and/or allowing the children to remain in the presence of, or within the hearing of, any third party engaging in such behaviour; and
(b)discussing these proceedings in the presence and/or hearing of the children and allowing the children to remain in the presence of, or hearing of, any third party engaging in such behaviour save for explaining to the children the living arrangements pursuant to these orders; and
(c)showing to, or leaving accessible to, the children, any document connected with these proceedings.
PROPERTY
16.Within 10 days of the date of these orders the parties do all such acts and things, and sign all documents as may be required to sell by unconditional sale contract the real property situate at and known as CC Street, Town R in the State of New South Wales (“the Town R property”) on the following terms and conditions:
(a)the wife have the sole conduct of the sale;
(b)within 5 days of these orders the wife engage and instruct a real estate agent (“the selling agent”) and within 2 days thereafter the husband make the keys available to the wife and/or to the real estate agent (“the selling agent”);
(c)the reserve price and manner of sale be as determined by the wife, having regard to the recommendations of the selling agent, subject to the reserve price being not less than $2,150,000;
(d)the marketing costs for the sale of the Town R property be no more than $15,000 and be otherwise as determined by the wife with each of the husband and wife to pay one half of such costs and to pay such costs immediately upon being so requested by the selling agent;
(e)settlement of the sale of the Town R property occur within such timeframe as may be agreed between the parties in writing and within 21 days of the date of these orders and failing agreement as determined by the wife solely save that the settlement date shall not exceed 90 days;
(f)the wife solely engage and instruct the conveyancer to undertake the conveyance of the sale of the Town R property; and
(g)the husband ensure that the Town R property is neat and tidy (including removal of general rubbish and overgrowth) at the time of any inspection and on the day of any auction.
17.Upon settlement of the sale of the Town R property the proceeds of sale be applied in the following manner and priority:
(a)firstly, to pay all outstanding costs (including conveyancing costs) and commissions of the sale;
(b)secondly, to discharge the NAB Town R Land loan account number …57 (as secured over the Town R property and/or as secured over B Street, Suburb C (“the B Street property”)) and the NAB Town R Construction loan account number …86 (as secured over the B Street property); and
(c)thirdly, the balance then remaining (“the net proceeds”) to the wife subject to Order 18 herein.
18.If the net proceeds of sale of the Town R property exceed the sum of $290,013 then the equity differential between $290,013 and the actual sale price derived equity, shall be divided between the parties as to 70 per cent to the wife and 30 per cent to the husband.
19.The husband is to pay all outstanding utilities, rates, outgoings, council fees, and land taxes for the Town R property up to the date of settlement of the sale of the property.
20.Within 7 days of a request by the wife, the husband provide to the wife such documents and information as may be required by the wife to enable her to obtain advice to calculate the capital gains tax (if any) payable by her in relation to the sale of the Town R property.
21.Liberty is granted to the husband to bid on and/or purchase the Town R property.
22.Liberty is granted to the wife to provide a copy of these orders to:
(a)the selling agent;
(b)National Australia Bank (NAB); and
(c)the conveyancer engaged by her to undertake the conveyance in relation to the sale of the Town R property.
23.Any remaining balance in the trust account of the wife’s solicitors from the sale of 2 K Street, Town L in the State of Victoria be forthwith transferred to the wife and each party do all acts and things and sign all documents as may be required to effect such transfer.
24.Within 120 days of the date of these orders, or upon the settlement of the sale of the Town R property, whichever is the later, the husband do all acts and things and sign all documents necessary to:
(a)transfer to the wife all his right, title, and interest in the B Street property, at the wife’s expense as to conveyancing costs; and
(b)pay all outstanding rates in relation to the B Street property up until the time of the transfer.
25.Within 60 days of the date of these orders the parties shall do all such acts and things and sign all documents as may be required to sell by unconditional sale contract the real property situate at and known as 1 DD Street, Suburb EE in the State of Victoria (“1 DD Street property”) on the following terms and conditions:
(a)the wife have the sole conduct of the sale;
(b)within 14 days of these orders the wife engage and instruct a real estate agent (“the selling agent”) and within 2 days thereafter the husband make the keys available to the wife and/or to the real estate agent (“the selling agent”);
(c)the reserve price and manner of sale be as determined by the wife, having regard to the recommendations of the selling agent and subject to the reserve price being not less than $1,200,000;
(d)the marketing costs for the sale of the 1 DD Street property be no more than $15,000 and be otherwise as determined by the wife with each of the husband and wife to pay one half of such costs and to pay such costs immediately upon being so requested by the selling agent;
(e)settlement of the sale of the 1 DD Street property occur within such timeframe as may be agreed between the parties in writing and within 21 days of the date of these orders and failing agreement as determined by the wife solely save that the settlement date shall not exceed 90 days;
(f)the wife solely engage and instruct the conveyancer to undertake the conveyance of the sale of the 1 DD Street property; and
(g)the husband ensure that the 1 DD Street property is neat and tidy at the time of any inspection and on the day of any auction.
26.Upon settlement of the sale of the 1 DD Street property the proceeds of sale be applied in the following manner and priority:
(a)to pay all costs, commissions and expenses of sale;
(b)secondly, to discharge the balance of the FF Bank mortgage secured against 1 DD Street;
(c)thirdly, in payment of any outstanding rates or taxes due and owing against the property; and
(d)fourthly, the balance then remaining (“the net proceeds”) to the wife subject to Order 27 herein.
27.If the net proceeds of sale of the 1 DD Street property exceed the sum of $586,000 then the equity differential between $586,000 and the actual sale price derived equity, shall be divided between the parties as to 70 per cent to the wife and 30 per cent to the husband.
28.The husband is restrained from entering any lease with respect to the 1 DD Street property without first obtaining the wife’s written consent.
29.The husband retain, to the exclusion of the wife, his sole proprietorship of GG Street, Suburb EE in the State of Victoria (“the GG Street property”).
30.The husband pay, or reimburse the wife with respect to, and remain liable for and indemnify the wife for:
(a)all claims, demands and judgments (including legal costs, penalties and interest) by or on behalf of HH Pty Ltd including pursuant to or arising from (to not include the wife’s costs of the District Court of NSW proceeding):
(i)the construction contract signed mid-2020 between HH Pty Ltd and the parties;
(ii)the NSW Civil and Administrative Tribunal (“NCAT”) proceedings file number … and …;
(iii)the Supreme Court of NSW proceedings; and
(iv)all legal costs as taxed/assessed or agreed between the parties from JJ Lawyers incurred and payable by the wife in respect of the NCAT and Supreme Court of NSW proceedings;
(b)all past, current and/or future liabilities in relation to KK Pty Ltd; and
(c)all past, current and/ or future liabilities in the name of either of the parties to LL Pty Ltd including any Director’s Loans to include that any amount owing by the wife to LL Pty Ltd is assigned to the husband.
31.The husband pay, indemnify the wife and keep her indemnified (and procure a release from any primary liability where possible) in relation to any and all liabilities including taxation liability of, or arising from, the wife’s involvement or association with the Leon Trust (including LL Pty Ltd, the interest in MM Pty Ltd as trustee of the NN1 Unit Trust, the interest in OO Pty Ltd as trustee for the NN2 Unit Trust) or any other entities directly or indirectly with which the husband has been involved.
32.The wife within 14 days hereof provide to the husband any of his remaining watch collection that she has in her possession and control.
33.In default of the husband complying with any of his obligations pursuant to these orders and remaining in default of any obligation for 7 days, then pursuant to s 106A of the Family Law Act 1975 (Cth):
(a)the wife Ms Bonnay be and is hereby appointed to execute all deeds and/or instruments in the name of the husband Mr Leon as required and to do all acts and things to give validity and operation to the deed and/or instruments; and
(b)in respect of any transfer of land, Kylie Sanders of Taussig Cherrie Fildes (solicitor for the wife) be and is hereby appointed to do all such acts and things required on behalf of the husband to effect the electronic conveyance of the transfer of properties and/ or any property referred to in these orders via PEXA.
34.Unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all property (including chooses in action) in the possession of such party as at the date of these orders and without limiting the generality thereof:
(i)the wife retain:
A.the contents of the B Street property;
B.the partial property settlement which she received pursuant to previous orders of the Court;
C.her Motor Vehicle 3;
D.her superannuation; and
E.all cash in her bank account.
(ii)the husband retain:
A.the partial property settlement which he received pursuant to previous orders of the Court;
B.his household contents including paintings as they appear in the assets of the parties and the watches, jewellery, art and furniture possessed by him;
C.the Leon Trust (including LL Pty Ltd, the interest in MM Pty Ltd as trustee of the NN1 Unit Trust, the interest in OO Pty Ltd as trustee for the NN2 Unit Trust);
D.PP Pty Ltd;
E.his superannuation; and
F.all cash in his bank account.
(b)monies standing to the credit of the parties in any joint bank account be retained by the wife;
(c)insurance policies remain the sole property of the owner thereof;
(d)each party forego any claims he or she may have to any superannuation or related benefits belonging to or earned by the other; and
(e)each party pay, be solely liable for and indemnify the other against:
(i)any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(ii)any liability in that party's sole name including credit cards or loans.
35.There is liberty to apply with respect to the implementation of these property settlement orders.
36.All previous extant property orders be discharged.
37.Otherwise, all extant applications be dismissed, and the matter removed from the list.
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 Leon & Bonnay has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
PRELIMINARY
The parties in this matter are the applicant husband (“the husband”) and the respondent wife (“the wife”). The matter commenced in the Family Court of Australia (now the Federal Circuit and Family Court of Australia (Division 1)) on 25 February 2021 upon the husband filing an Initiating Application for final and interim property orders. He sought primarily a sale of the parties’ former matrimonial home in Melbourne, in which the wife and the children were residing, and a transfer of the parties’ joint interest in their New South Wales Town R property to him. In the wife’s Response to Initiating Application filed on 11 March 2021, the wife sought both final and interim property and parenting orders. She sought, in essence, that the children reside with her to a greater extent during school terms and otherwise equally between the parties; that the former matrimonial home be transferred from the parties’ joint proprietorship to her; and that the parties New South Wales property be transferred to the husband as sought by him, but subject to various conditions. Each of the parties sought other and further orders in respect of their remaining real property and business interests.
The matter was listed for final hearing in January 2022 and was adjourned, at the request of the parties to July 2022. The husband became self-represented on occasion, being from 24 September 2021 to 20 December 2021 and from 19 April 2022 to 6 June 2022. The final hearing in July 2022 was further adjourned at the request of the parties to November 2022. The husband became again self-represented on 4 November 2022.
The final hearing commenced on 14 November 2022. Although the husband wished to mediate the matter at that time, the Court was of the view that the trial needed to proceed, and the wife was opposed to any further delay. As became apparent during the trial and its aftermath, a mediated outcome was never a possibility in this proceeding.
The husband proceeded as a litigant in person at the commencement of the final hearing. An order pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”) was made on 14 November 2022, however the husband did not make the requisite application to Victoria Legal Aid. Instead, he obtained privately funded legal representation being solicitors who had acted for him previously.
The final hearing ran over the course of eight days, being 14-17, 21 November 2022 and 9-10 March 2023. Judgment was reserved. Written submissions were provided for by order of the Court with the parties subsequently seeking an extension of that time such that final submissions were not completed until late July 2023.
The matter was re-opened for further evidence in relation to property matters, following the wife indicating an intention to seek to re-open the evidence, and subsequently filing an Application in a Proceeding on 10 November 2023. Consent orders were made on 23 November 2023, for the filing of material and provision of disclosure by the husband to the wife. The matter was further listed to 12 February 2024 for hearing. That hearing proceeded.
On 4 March 2024, the husband filed an Application in a Proceeding seeking leave to file further written submissions. That application was heard on 15 April 2024. Orders were made providing for the filing of limited further submissions by each party.
The ambit of the parenting dispute was narrowed throughout the course of the final hearing and shortly thereafter. Ultimately, the Court was asked to determine the care arrangements for the children, with the parties having agreed to equal shared parental responsibility and each of the children’s future place of schooling. Child Support matters were dealt with in a Child Support Agreement.
Property issues were litigated such that the Court is required to make findings in relation to the assets, liabilities, and superannuation that exist for division between the parties and consider the financial resources of the parties, and any other facts and circumstances that the justice of the case requires to determine orders which in all the circumstances of the case are just and equitable.
Statements of fact in these reasons are findings of fact on the balance of probabilities unless the context indicates otherwise.[1]
[1] Evidence Act 1995 (Cth) s 140.
Relevant factual background
The husband was born in 1977 and was aged 45 years at the time of trial. The husband is a contractor and the Director of LL Pty Ltd, a company which he created and developed with the wife (“the LL Pty Ltd business”) and which he solely controls. His receipt of income and profits from the business is, since separation and in particular post COVID-19, opaque, a matter to which I shall return later. The LL Pty Ltd business services large corporations and provides services at major Australian events. The husband, in 2023, re-partnered with Ms QQ with whom he commenced living, on his evidence, in early 2024.
The wife was born in 1977 and was aged 45 years at the time of trial. Her employment with the LL Pty Ltd business was terminated by the husband following separation, and in the following year she obtained employment as a contractor with RR Organisation earning approximately $130,000 including superannuation. Her income is now $180,000 including superannuation per annum. She has an ability to earn a yearly bonus which was approximately $5,400 in her first year with her employer. She has not re-partnered.
The parties’ relationship commenced initially in 2002. I find their cohabitation commenced in early 2006. I find that both were working in the business LL Business by mid-2006. The factual matters going to these findings are set out commencing at [127] below. They cover a period between 2001 and 2007.
In early 2007, the parties purchased commercial property at GG Street, Suburb EE (“the GG Street property”). The property was registered in the husband’s sole name in late 2007. The LL Business commenced to operate out of this property following settlement of the sale and at trial continued to do so.
In late 2007, the parties purchased an off the plan property at SS Street, Suburb TT (“the SS Street property”). The property was registered in their joint names when completed in mid‑2009.
In late 2007, the parties purchased commercial property at 1 DD Street, Suburb UU (“the 1 DD Street property”). The property was registered in the husband’s sole name. The VV Business, as referred to hereafter, is operated from this property by the husband and his third-party partners/now partner (“VV Business”).
In early 2008, the parties purchased the property at 2 DD Street, Suburb UU (“2 DD Street”) for $800,000.
In mid-2008, the wife sold WW Street, Suburb UU (“the WW Street property”), her purchase of same being canvassed in [137] for $310,000 and applied the net proceeds of sale, in indeterminate sum, toward the purchase of the 2 DD Street property. The husband applied his savings, in indeterminate sum, to the purchase. The parties otherwise obtained a mortgage to complete the purchase. Upon settlement, the parties moved into the property.
In 2009, the parties married. They separated under the one roof on 26 May 2020 after approximately 14 and a half years of cohabitation. They physically separated on 26 March 2021. Further facts going to the period around their separation are set out below.
In 2010, ZZ was born. ZZ died in 2010.
In 2011, the registered business of LL Business was incorporated by the parties and became the LL Pty Ltd business as earlier defined.
In 2012, X was born. The wife was the primary carer of X, assisted in that care and supported by the husband. The wife continued to have significant input to the LL Pty Ltd business operations but commenced to work part-time. Ms XX, a current employee of the business became the General Manager.
At trial, X was aged 10 years. She attended W School where she was in Grade 5. X was involved in many extracurricular activities. Her participation was facilitated mostly by the wife.
In late 2013, the parties sold the SS Street property and placed those net proceeds into their acquisition of the B Street property as described below.
In late 2013, the parties purchased the former matrimonial home being the property at B Street, Suburb C (“the B Street property”) for the sum of over $1,800,000. The parties undertook extensive renovations to the property, including landscaping and the installation of an inground pool as project managed by the wife over a 12 month period. In the first four months of the renovations, the family did not reside in the B Street property. They remained residing at the 2 DD Street property. The cost of the renovations was approximately $1,500,000. It was the husband’s evidence that the renovation costs were funded by Director’s loans of the husband and wife from the LL Pty Ltd business.
In 2014, Y was born (he and X are hereafter referred to in these reasons as “the children”). The wife continued her primary care giving role with participation and support from the husband. The wife also continued her more limited involvement in the LL Pty Ltd business operations. The husband otherwise continued to work long hours in the business, which included considerable travel both to Sydney every second week and occasionally overseas or elsewhere interstate. During his absences, the wife cared for the children.
Y was aged 9 years at trial. He attended W School where he was in Grade 3. Y was diagnosed at birth with a medical condition. His condition has been managed by his specialist, Dr YY, at the AB Hospital. He is generally well. Like his sister, Y participated in many extracurricular activities as facilitated mostly by the wife.
In early 2015, MM Pty Ltd was registered by the husband. The company is the trustee of The NN1 Unit Trust which was subsequently settled in early 2015. The Trust owns the VV Business which is a hospitality venue operating from the 1 DD Street property. The parties worked together, prior to separation, to develop this business. The husband retained significant cash takings from this business, $300 to $5,000 each month on the wife’s evidence, throughout the business operations prior to separation.
In 2016, the wife became less involved in the LL Pty Ltd business as her obligations in respect of the children became a greater part of her focus.
In early 2016, the husband purchased in his sole name commercial property at 1 K Street, Town L in the State of Victoria.
In mid-2016, the parties purchased the property at CC Street, Town R in the State of New South Wales for over $950,000 (“the Town R property”). There was an existing house on the property which the parties demolished. The parties obtained finance for a loan secured on the title of the property of $722,000. The loan was refinanced to the National Australia Bank (“NAB”) (“the Town R land loan”) with that loan being also secured by the B Street property.
In or around 2016/early 2017, the husband purchased in his sole name further commercial property at 2 K Street, Town L in the State of Victoria.
In late 2017, the parties sold the 2 DD Street property for $1,600,000. The net proceeds of sale received by the parties were $805,336. The wife applied those monies to payment of the parties’ existing expenses and liabilities and provided a summary of the application of those funds to the husband by way of disclosure in October 2020, the husband having not challenged her application of those funds before separation. The husband thereafter made no complaint to the wife about the allocation of the sale funds by reference to that disclosure. Rather, he vaguely referred in his evidence to the wife having retained these funds for her own use and/or claimed that such funds remained available to her for application by her toward the parties’ post separation debts which was not correct.
In late 2018, the husband sold a property in Town L that he had purchased sometime prior for $300,000. It was sold for $350,000. Those net proceeds were applied by the husband in a way unknown, and their quantum was unknown, but nothing turns on that.
In mid-2019, the parties entered a contract with HH Pty Ltd for construction works to the Town R property. The contract was for the sum of $2,699,258.10. The contract however did not include the costs of a retaining wall of $25,000; landscaping of $300,000; fixtures and fittings, white goods and appliances estimated to be $200,000; additional upgrades of $40,000; and a purified air conditioning unit of $100,000.[2] Before entering the contract, the parties had engaged an architect to draw plans for a large home to be built on the site. The parties were pleased with the architectural drawings and looked forward to the prospect of developing the site in accordance with the architectural plans. Despite this satisfaction with the work done by the architect, the parties did not pay him that which was owed, a sum of approximately $64,000, which was required to be paid pursuant to Orders made 26 August 2021. I note that for a considerable time in which this sum was owing, it was only the husband with access to income and/or JobKeeper and other payments.
[2] Wife’s affidavit filed 13 May 2020, paragraph 200.
The parties obtained a further loan from NAB for the construction of the home on the Town R property. This second loan was and remains secured against the B Street property (“the Town R construction loan”). Construction works were commenced.
On 26 May 2020, the parties separated under the one roof. The parties had prior thereto spoken of separation from time to time, and on this occasion, at the husband’s suggestion, and with the wife’s acquiescence, they proceeded to separate. The husband’s evidence, that he was completely blindsided by this turn of events is not supported by the evidence, and not accepted by me.
In around June 2020, the wife’s income, habitually received from the business was reduced unilaterally by the husband from $3,000 per month to $1,600 per month. These monies derived from the JobKeeper payments (then payable to qualifying businesses) which the business received in respect of the wife’s role.
In June 2020, the parties had some discussions about their financial settlement. The husband threatened the wife that he would sell all the real properties in his name and keep the proceeds for himself, and that he would close the LL Pty Ltd business before he acknowledged the wife financially. Following the husband’s threats, the wife caused caveats to be lodged on the properties registered in the husband’s sole name.
On 9 June 2020, the Town R property was valued by the single expert AC Valuers, as land only, at the husband’s insistence, with a valuation of $2,150,000. The parties did not seek to revalue this property. It was a matter of cost. It is an agreed fact that considerable building works have been constructed on the site and that the building remains in a partially exposed and unfinished state.
On 23 June 2020, the husband received written notification from the wife’s solicitors that the wife had lodged caveats on each of the real properties registered in the husband’s sole name. The husband was infuriated. He became aggressive toward the wife, screaming at her and abusing her. The wife suggested to the husband that he leave the B Street property. The husband refused.
On 1 July 2020, the husband, by email to the wife, unilaterally and without notice, terminated the wife’s employment as a consultant with the LL Pty Ltd business. I observe, the parties’ business. That correspondence was as follows:[3]
HI [Ms Bonnay] – Just a quick follow up to our conversations of late around the effects of Covid 19 on [LL Pty Ltd]. Unfortunately we’ll have to bring your consulting fees to an end. I know its only $1600 a month, but the business can’t afford anything at the moment – Hopefully you’ll be able to pick up some more […] gigs […]? I’ve also made the decision with [Ms AD] today to give [LL Pty Ltd] a rent holiday for an initial 3 months (July through to Sept)…..officially time for us to tighten our belts!
Happy to discuss, but given our current personal situation, I thought it best to also put this in writing.
See you soon!
[Mr Leon]
[3] Wife’s trial affidavit filed 13 May 2022, Annexure MB-26.
The effect of such termination was to immediately deprive the wife of funds for expenditure on those necessities she usually made payment of, for instance the utilities in respect of the former matrimonial home. I find the husband terminated the wife’s income from the parties LL Pty Ltd business as an act of financial control and coercion over the wife. I find that action was the first step in the husband making good on his threats to the wife around the time of separation that he would not let her keep the B Street property; that the LL Pty Ltd business would be wound up; and that she would “get nothing”.
On 4 August 2020, the wife noticed the children’s passports were missing from the safe in the B Street property. The wife asked the husband as to their whereabouts, and the husband informed her that the passports were in his backpack. The wife retrieved them.
On 11 August 2020, in response to a letter sent by the wife’s solicitors to the husband’s solicitors requesting the husband vacate the B Street property, the husband’s solicitors proposed a “nesting arrangement” be implemented or alternatively the B Street property be sold.[4]
[4] Wife’s affidavit filed 13 May 2022, paragraph 16.
From October 2020 to January 2021, the parties attended upon Mr F for reportable family therapy over eight sessions.
On 18 September 2020, the wife obtained an appraisal from Ms AE of AF Accountants which estimated the enterprise value of the LL Pty Ltd business on 30 June 2020 to be between $2,484,589 and $2,851,761. After deduction of the Director’s loans, at that time $1,735,735, the net value of the parties’ interest in the business was estimated to be between $748,855 and $1,116,027. I acknowledge this was simply an appraisal obtained by one party, and that COVID-19 impacted the value of the business subsequently but for a limited period of time.
On 4 December 2020, Mr F wrote to the parties and outlined he thought it “is more likely that over a 14-night cycle the children will live in a 9:5 split”.[5]
[5] Wife’s affidavit filed 13 May 2022, paragraph 20.
In December 2020, HH Pty Ltd pressed the parties for a progress payment. Ultimately, a payment was made by virtue of Court orders in March 2021, in the sum of $202,444.
In early 2021, the car being driven by the wife but owned by the KK Pty Ltd entity, of which the husband was the sole director, broke down and was towed to a garage. The husband refused to make available to the wife the necessary funds to pay a mechanic so that she could have the car returned to her in working order. The car was needed by the wife to transport not just herself, but the children, and to safely transport them. The husband wished to control the wife’s ability to drive anywhere and suggested the wife could ask him for a car when she needed one. The wife did not have any funds to apply to the car repairs and was required to seek financial assistance from her father. That advance by her father, some $3,000, remains outstanding to him, a matter I take into account in my s 75(2)(o) of the Act considerations .
On 13 January 2021, Mr F wrote to each of the parties’ solicitors saying words to the effect of:[6]
21.1 the husband and wife cannot continue to live under the one roof.
21.2 one of them needs to move out.
21.3 nesting is “bad in the short term” and a “disaster in the long term”.
21.4 it would be appropriate for [Mr F] to meet with the children and formally prepare a family report.
[6] Wife’s affidavit filed 13 May 2022, paragraphs 21.1-21.4.
In early 2021, the wife having obtained new employment, commenced her employment with RR Organisation.
In early 2021, the parties received a reminder notice in relation to the preceding December fee account for the children’s W School attendance which was due to be paid in early 2021. The amount outstanding at that time was $15,230 and payment was due to be made later that month. In early 2021 and mid-2021, the parties received two further overdue notices from W School.
On 14 February 2021, there was an incident at the B Street property wherein the wife and the children were playing in the backyard, the husband turned the sprinkler system on causing them to be sprayed by water and to become wet. Y became upset and told the husband “That was really mean daddy” to which the husband responded, “mummy needs to learn to stay away”.[7] X was teary and upset by what the husband had done.
[7] Wife’s affidavit filed 13 May 2022, paragraph 27.8.2.
On 15 February 2021, the wife caused her solicitors to send a letter to the husband about the sprinkler incident the previous day, requesting the husband provide an undertaking that he would not engage in family violence, and requesting, again, that he vacate the B Street property. On the evidence, there was already considerable conflict between the parties whilst they remained separated under the one roof, which impacted adversely upon the children, as confirmed by Mr F in January 2021.
The husband’s response to receipt of the above letter was to yell at the children “Your mummy is trying to get me out of the house. Your mummy is going to call the police to have me removed”.[8] He yelled at the wife, in the presence of the children “You are taking the children away from me. You are greedy and lazy and destroying the children”.[9]
[8] Wife’s affidavit filed 13 May 2022, paragraph 27.10.1.2.
[9] Wife’s affidavit filed 13 May 2022, paragraphs 27.10.1.3 - 27.10.1.4.
The husband then proceeded to place the children in his car and drove off with them, without notifying the wife of his intention to do so and nor did he tell her where he was taking the children. X was distraught, and the husband, fairly immediately, returned to the home and deposited her there. He then again drove off with Y in the car. The wife was fearful of the husband, and contacted her father who attended the home and remained with the wife and X. The husband later demanded of the wife that, as a condition of his return to the home with Y, her father leave the B Street property. The wife complied with that condition. Some five and a half hours after he had taken the children, the husband returned with Y.
At trial, the husband gave evidence that was inconsistent with his affidavit evidence. In his affidavit material, the husband claimed he told the wife he was taking Y to a local park then to a mutual friend’s home to watch a movie, that friend apparently having “a home cinema in their basement which does not have phone reception”.[10] At trial, the husband gave evidence as to what more probably occurred. Namely, that he took Y to DD Street in Suburb UU, then to a park, to meet a friend of the husband who cared for Y while the husband spoke to his lawyers. Y and the husband then ate pizza and watched a movie at a cinema.
[10] Husband’s affidavit filed 22 June 2023, paragraph 22.
On 26 February 2021, the husband commenced the proceeding. This was only as to property matters.
On 9 March 2021, the first Family Report by Mr F was released. Mr F proposed three options which appear at [204] below.
On 11 March 2021, the wife filed a Response to Initiating Application wherein she sought sole use and occupation of the B Street property, and interim parenting orders.
In early 2021, at the B Street property, the husband said to Y that the wife was “trying to get me kicked out of this house” and “mummy is trying to take me away from you”.[11] The husband then told the wife he wanted the children “50/50” and that he was not leaving and asked her “why don’t you want them to know that you don’t agree to me having them 50%?”.[12]
[11] Wife’s affidavit filed 13 May 2022, paragraphs 32.5.1 and 32.5.2.
[12] Wife’s affidavit filed 13 May 2022, paragraphs 32.5.9.1 and 32.9.3.
An altercation then occurred between the husband and the wife as initiated by the husband and in the presence of Y. The wife was fearful that the husband was going to hit her. He did not. The husband left the home, leaving the wife to console the child Y who was crying. The husband immediately attended the Suburb H Police Station and made a complaint about the wife being openly aggressive toward him and yelling at him. The wife called the Police alleging the husband was violent to her. A Safety Notice was issued against the husband by Victoria Police and the husband was not permitted to return to the B Street property unless accompanied by the Police. Subsequently, that day an interim Intervention Order (“IVO”) was made against the husband with the wife and children named as protected persons.
The husband entered a residential lease at AG Street, Suburb TT at approximately $8,690 per month ($104,280 per annum) exceeding the servicing costs of the monthly mortgage on the home, and moved in.
On 16 March 2021, the Court made orders by consent including that the children live with the husband during school terms from the conclusion of school on Thursday until the commencement of school on Tuesday commencing 25 March 2021; and with the wife at all other times. There was provision for the children to spend equal time with each of their parents during school term and summer holiday periods; special occasion time; for changeover to occur at the parties’ residences; for the parties to be permitted to communicate with the children electronically when not in their care, and for the parties to be permitted to travel interstate and internationally with the children. Property orders made by consent included that the amount of $202,444 be paid from for the construction loan secured on the former matrimonial home, to the builder, with such payment to be characterised by the trial judge. The husband was ordered not to take any further steps to authorise HH Pty Ltd to continue the construction at the Town R property or incur any further liability pursuant to the construction contract pending the adjourned hearing save to the extent necessary to incur the stage payment due on completion of the installation of the roof; and otherwise the husband was not to draw down any further funds from the NAB construction loan other than to meet the progress payment required on the installation of the roof, with that payment to be characterised by the trial judge.
Significantly, the above orders provided that the husband was to pay all instalments on the mortgage loans of the parties (the construction loan, home loan secured on the B Street property, and the original Town R property land loan) as and when they fell due and indemnify the wife in respect of same. At no stage in the history of the litigation thereafter, did the husband comply with that order.
In mid-2021, the operative interim IVO was varied by consent to remove the children as protected persons.
Three days later, the wife was contacted by Victoria Police requesting that the husband be permitted to attend the home in the company of the Police. The husband attended the home one week later to collect various personal items belonging to the husband. The wife had carefully packed and photographed (as she packed) the husband’s clothing and other belongings and was not challenged as to this evidence. She placed such photographs in evidence before the Court. All items were, I find, in an intact state as asserted by the wife. There were 17 bags of clothes, a suitcase, four further bags of shoes, accessories, toiletries, books, and family photos. The husband requested the Police check the safe and house for other items he said were missing possessions. The Police checked the safe. A few days later, the husband’s lawyers contacted the wife noting some items were missing. Importantly, they made no allegation of the husband’s clothing being damaged.
About one week later, the wife was contacted by Victoria Police and informed the husband had made a formal statement to them of “alleged property damage” in relation to the items returned to him.[13] The wife was required to attend upon the police for questioning. The wife was presented with several photographs allegedly taken by the husband of some of the husband’s clothes, which had been cut or slashed. The husband did not place these photographs before the Court in evidence. The wife denied that she had damaged the husband’s clothing. The Police did not proceed further with the husband’s claim of criminal property damage against her.
[13] Wife’s affidavit filed 13 May 2022, paragraph 157.
I accept the wife’s evidence that she caused no damage to the husband’s clothing nor damage to any of his returned belongings. I reject the evidence of the husband and his sister, Ms J Leon, that the wife damaged the husband’s clothing. I observe that the husband’s sister gave some inconsistent evidence as to what occurred on that day. Otherwise, on her evidence, the bags of clothing travelled with the husband in his car, before she and her brother met at his home and unloaded them. If there was damage to the husband’s clothing as claimed by, he and his sister, as observed by them on the date of collection, in all probability the husband would have immediately reported that to the Police, or at the very least, to his solicitors prior to their communication to the wife claiming missing items – but no damaged clothes. I observe the wife’s belief that if the clothes were damaged, then the husband had slashed the clothing himself for the purpose of making false allegations against her. I find that probable. This undermining of the wife by the husband was a constant feature in the parties’ relationship, at the very least, in the post-separation period. It was something which existed below the surface and which did not diminish or cease at any time. This example was an extraordinarily vindictive one.
In mid-2021, the husband unilaterally and without notice to the wife declared a dividend to each of them from KK Pty Ltd in the sum of $109,553. The parties did not receive such funds as the dividend was declared as part of the husband’s decision to wind up this entity. The husband remained in sole control of the parties’ assets at this time, and payment of the resulting tax liability, if he chose to make it, was possible for him. This was a calculated move by the husband to adversely impact the wife financially, as the dividend was required to be included in the wife’s personal taxation return for that financial year, and the taxation on it became a liability for her to meet in the context of her having no ability to meet that obligation. The husband, as was his approach to the wife, provided the wife with no financial advice as to the need to close an entity of the parties.
On 13 July 2021, the Court made further parenting orders which in essence continued those earlier made in March 2021.
In mid-2021, the parties received correspondence from the director of finance and operations of W School in relation to an outstanding school fee balance of $46,962.45. The wife made various attempts to negotiate a joint payment plan with the husband, but the parties could reach no agreement.
In mid-2021, the wife was contacted by the applicant police prosecutor who advised her that the husband had sought a variation to the interim IVO. The husband sought to have the meterage limit restriction around the wife’s home reduced from 200 metres to 10 metres. The husband stated this was due to the husband having “business clients in the area” and it was “unmanageable” with the children.[14] The husband’s evidence did not support his application and it was dismissed.
[14] Wife’s affidavit filed 13 May 2022, paragraph 161.
On 20 August 2021, the parties received a letter from AH Lawyers, solicitors engaged by HH Pty Ltd, enclosing a Notice of Termination of the building contract.
On 26 August 2021, the Court made orders including single expert valuation orders and an order that certain artworks owned by the parties be sold, with the proceeds to be applied to meet various expenses in priority. The proceeds were to be applied as follows:
(i) First, [AJ Real Estate] for the costs of Valuations.
(ii) Second, [Ms Q] for the valuation of the parties’ business entities pursuant to Order 3 herein.
(iii) Third, any fees payable to a jointly appointed mediator.
(iv) Fourth, the arrears of school fees for 2021 owing to [W School] in respect of school fees for the parties’ children as payable by the parties or either of them.
(v) Fifth, [AK Architects] in the sum of $64,746.
(vi) Sixth, $2,601.30 to pay the New South Wales Government Overdue Land Tax owed in relation to the [Town R] property.
(vii) Seventh, [HH Pty Ltd] stop works in the sum of $17,426 subject to the wife’s consent following proper disclosure by the husband as to those matters as sought by the wife.
(viii)Eighth, $3,233 to the [T Council] to pay the overdue rates and charges in relation to [B Street].
(ix) Ninth, $1,273.11 to the [S Council] to pay the overdue rates and charges in relation to the [Town R] property: and
otherwise as agreed by the parties in writing.
A further order made on 26 August 2021 provided, relevantly, that the husband be restrained from incurring any cost or fee in relation to the construction of or project (including but not limited to project management fees, landscaping or architect fees) at the Town R property other than as specifically provided for in the simple works contract with HH Pty Ltd signed by the wife or with the prior written approval of the wife.
In late 2021, the husband registered the business name LL Consulting.
In late 2021, the husband registered the business name PP Pty Ltd.
In October 2021, the husband ceased paying the family health insurance. The wife was left uninsured, and the husband obtained alternative insurance for him and the children.
In late 2021, the husband caused a company AL Pty Ltd to be registered. The husband also caused a business called AL2 Business to be registered with ASIC that day.
In late 2021, five of the parties’ artworks were sold at auction pursuant to Orders made on 26 August 2021. The purchaser was claimed to be the husband’s sister. She placed three of the artworks in the husband’s rental property and left them in his possession.
In late 2021, the parties were served with proceeding number … filed by HH Pty Ltd in the District Court of New South Wales. HH Pty Ltd alleged that there was $212,000 outstanding pursuant to the construction contract which the husband had not paid. It was the husband’s evidence that the outstanding monies were not able to be paid from the Town R construction loan, as the builders stopped work on the property during the middle of a building stage, and the bank only permitted payments at the end of each construction stage.
On 3 February 2022, Court orders were made for the parties to borrow further against the B Street property in a sum of $100,000. The monies so obtained were to be applied to the arrears of school fees then existing, and the balance of school fees for the children’s attendance at W School for the 2022 school year. The parties were ultimately unable to obtain further borrowings from the bank.
In early 2022, the parties communicated about the wife making a birthday cake for Y for his birthday. The wife texted the husband telling him that Y had told her that the husband was planning a birthday party for Y, and that Y had asked the wife to make a birthday cake. The wife outlined to the husband she was happy to make the cake for Y and told the husband to let her know if he needed help with anything. The husband responded to the wife saying that Y had told the husband that the wife wanted to make the birthday cake. He was happy for that to occur.
In early 2022, the husband requested that the wife agree to meet one half of an $11,000 fee for an expert to inspect and provide a report about the Town R property in relation to the NSW District Court proceedings.
The following day, the wife’s solicitors wrote to the husband’s solicitors and requested a copy of the advice given by any building and construction lawyer engaged by the husband. The wife did so to understand the basis upon which any defence could be made to paying the amount owing to HH Pty Ltd including whether that defence was likely to succeed before she agreed to any funds being further expended on the litigation. The husband did not provide the wife the requested advice. Although the husband asserted through his lawyers that he had “not received a copy of a written advice”, the evidence was that AM Pty Ltd as engaged by the husband had issued an invoice to the husband with the narration “prepare draft advice”.[15] The wife did not provide the husband with any funding. Nor did the wife wish for the husband to continue to defend the litigation. She made clear that she did not support it or the funding of it. I find, beyond the proceeding being instituted with a consideration by the parties as to the claim, the wife had no further involvement in the litigation as the matter proceeded to New South Wales Civil & Administrative Tribunal (“NCAT”), and then the Supreme Court of NSW. The wife was unable to stop the husband who refused to cease engaging in the litigation. I find that the husband should be liable for any costs and payments, including damages which flow.
[15] Wife’s affidavit filed 5 July 2022, paragraph 21.
In early 2022, the wife received an email from a Senior Police Officer of Victoria Police stating that: [16]
…
I recently received correspondence from the Respondent’s Lawyer stating that [Ms Bonnay] is planning to attend [Mr Leon’s] residence this Friday (against his wishes) to attend her son’s birthday party, and potentially put [Mr Leon] in breach of the IVO.
…
[16] Wife’s affidavit filed 13 May 2022, Annexure MB-42.
The following day, the husband purchased a smashed pinata lolly cake for Y.
A few days later, the husband texted the wife outlining that Y had asked him if the wife was still baking Y’s birthday cake, and if the wife was attending the birthday party. The husband indicated to the wife that he had a “backup cake in case you don’t want to do it anymore”.[17] The wife responded to the husband’s text message stating that the husband did not provide to her any details with respect to the birthday party; that she had been contacted by the police; and that she would not (and had not intended to) be dropping a birthday cake off at the husband’s home. This episode is otherwise referred to later in these reasons.
[17] Wife’s affidavit filed 13 May 2022, paragraph 280.12.
Also in early 2022, the husband disposed of Motor Vehicle 1, which was owned by the LL Pty Ltd business, and through the business acquired Motor Vehicle 2. Further details pertaining to this are referred to hereafter. The husband did not consult the wife about his purchase of Motor Vehicle 2 as an asset of the parties LL Pty Ltd business. The purchase price of the new vehicle was $264,093. The monthly repayments required to be paid by the LL Pty Ltd business exceeded $2,500.00 a month. At the time, the husband was still asserting that the business was worthless. He justified his obtaining of a luxury car as “all part of the business”.[18] He saw nothing bizarre in his spending $264,093 on this vehicle and his refusal to pay a $3,000 maintenance bill to enable the wife to have a car in which to drive the children around.
[18] Wife’s written closing submissions filed 11 July 2023, paragraph 204.6.
Also purchased in 2022 by the LL Pty Ltd business, was a second motor vehicle which the husband acquired in late 2022, claiming such vehicle was purchased to provide it to the general manager, Ms XX, for her use and as part of her remuneration package. The cost of the car was approximately $90,000. The husband maintained that despite this largesse, the LL Pty Ltd business was in “more than” dire straits at that point in time.[19] Ms XX was in receipt of a salary of $150,000 additional to provision of the car. She worked a four day week. The husband again did not consult with the wife in respect to his decision to purchase the vehicle. Furthermore, the husband failed to disclose this purchase to the wife even though the husband had received, and disregarded, the wife’s request for disclosure in respect of the vehicle. The wife sought all documents relating to the finance and/ or lease with respect to the vehicle including the husband’s loan application and bank statements regarding payment of the vehicle lease. The husband did not provide a copy of the loan application and the Court infers that the assets of the husband and/or the LL Pty Ltd business as set out in that loan application are probably contrary to his stated position before the Court.
[19] Wife’s written closing submissions filed 11 July 2023, paragraph 195.
In early 2022, the husband caused PP Pty Ltd to be registered. He is the director and secretary of that entity and holds all its issued shares. He failed to make proper disclosure of its existence and operations to Ms Q or the wife. The husband caused this company to be registered because, on his evidence “in the event that [LL Pty Ltd] winds up, that I can do consulting work if it arises”.[20] He stated categorically at trial that the company had “no operation whatsoever”.[21] He was “surprised” to hear that the company had issued invoices to the LL Pty Ltd business for work done in the total sum of approximately $50,000. I find the husband moved some work away from the LL Pty Ltd business to this new company to have the option of operating the parties’ business through another entity following the conclusion of this proceeding.
[20] Transcript 15 November 2022, p.95 lines 3-4.
[21] Transcript 15 November 2022, p.95 line 8.
In early 2022, the parties received correspondence from W School stating that if the school fee arrears (at that time $76,964.70) were not paid by the following month, the children’s enrolment would be cancelled.
On 16 April 2022, while the children were in the husband’s care, the wife asked the husband to have the children call her and the husband responded that “I wish I could do that [Ms Bonnay], but you know I can’t call you or accept a call from you outside of 5 to 6pm with the way things stand at the moment.”[22] There was no order to that effect. The husband was simply not facilitating the children speaking with their mother.
[22] Wife’s written closing submissions filed 11 July 2023, paragraph 48.3.
In early 2022, the wife spoke to W School principal who agreed to accept $50,000 in payment of the arrears for the children to attend W School in Term 2. As of mid-2022, the amount of $29,964.70 remained outstanding and owing to W School for the children’s school fees.
In mid-2022, the husband withheld the child Y from school, citing that Y was sick and unable to attend school that day. The wife asked the husband for details about Y’s sickness and asked if she could collect Y at 3.30pm that day. It was the husband’s position the wife could collect Y at 6.00pm that day, he claiming it was a non-school day for Y. Further, the husband stated that he would inform the wife “if and when I feel the children require professional medical care whilst they are with me”. The husband did not take Y to the doctor and did not provide the wife with details of Y’s health, save that Y had an elevated heart rate. The wife attended the children’s school to collect X at 3.30 pm in accordance with the orders, and then was required by the husband, to attended upon his home approximately two hours later to collect Y.
In mid-2022, the parties received an email from NAB advising that the Construction Loan facility had expired, as it was an interest only facility, and otherwise advising as to the respective mortgage arrears:
“Without Prejudice”
Home loan- […05]
Arrears- $49,257.06
Days past due- 198 days
Home loan- […57]
Arrears- $21,100.43
Days past due- 198 days
Home loan- […86], BICOE stage has expired.
…
As of 4 July 2022, the balance of the Town R land loan was $720,689.97 DR and the balance of the Town R Construction Loan was $1,071,031.49 DR.
On 7 July 2022, the Court made orders, by consent, as to valuation and discovery matters, and other orders which went to ensuring ongoing payment of the children’s school fees and arrears.
The wife wished for the sale of the Town L properties. The husband remained steadfast in his determination not to sell even as the arrears on the parties’ mortgages were accumulating with accompanying cost to the parties. The husband was given an opportunity to borrow against the Town L properties. The borrowings were to enable the parties’ payments of their debts. In the event the husband could not obtain the necessary borrowings, Court orders made provision for a sale of one of the Town L properties. Ultimately, a sale proceeded despite the obstruction of the husband and his sister.
In September 2022, Services Australia assessed the wife to make child support payments to the husband in the amount of $218 per month.
On 14 September 2022, the wife’s solicitors received an email from AH Lawyers, the solicitors acting on behalf of HH Pty Ltd in the NSW proceedings. The wife was not, at the time, joined to a cross-claim, initiated solely by the husband, against the builder. The letter particularised that a Senior Member of NCAT highlighted:[23]
…multiple deficiencies in [Mr Leon’s] cross claim namely that the cross claim seeks specific performance which cannot be brought after the Contract is terminated and also identified [Mr Leon’s] lack of standing to bring either defence or cross claim for reason that he lacks the consent and participation of [Ms Bonnay].
[23] Exhibit W-1, pp.114-115.
The correspondence went on to say that:
Accordingly, any application to the Supreme Court will require the consent and participation of [Mr Leon], and needless to say; any Supreme Court application will be vigorously defended, and our client will be seeking costs.
Our respectful view is that the history of this matter clearly indicates the [Mr Leon] involves himself in delay tactics when it is obvious to all and sundry that he and [Ms Bonnay] have patently breached an essential term of the Contract (complete failure to pay stage payments) giving our client every right to terminate the Contract and seek damages.
In late 2022, the husband, as required pursuant to Court order, sold the 1 K Street property for the sum of $315,000 on his evidence. It was unencumbered.
At the commencement of the hearing on 14 November 2022, counsel for the wife sought that the husband not be permitted to cross-examine the wife (the husband had been aware of the s 102NA of the Act provisions since at least 3 February 2022) and that a s 102NA order be made in circumstances where the husband’s solicitor had filed a Notice of Ceasing to Act on 4 November 2022; where there were allegations of family violence; and where there was an interim intervention order against the husband listing the wife as a protected person.
On the evening of 16 November 2022, following the third day of trial, the child Y was admitted to hospital for a medical episode. The wife took Y to hospital where the husband later visited.
On 21 November 2022, the Court made order, relevantly, that:
1.All extant applications for final orders are adjourned part heard to the 9 and 10 of March 2023 at 10.00am before the Honourable Justice Hartnett.
2.The husband do all acts and things to authorise the immediate release and application of the deposit for [1 K Street, Town L (“1 K Street”)] if the purchaser agrees as follows:
(a)first, in payment of the amount owing to [Ms Q] for payment of her invoice for the Second Report, being $15,931.96; and
(b)second, to deposit same into loan account number ending […05] (“[B Street] Loan”) in partial discharge of arrears.
3.Upon settlement of the sale of [1 K Street] the proceeds be applied as follows:
(a)first, in payment of any legal costs of conveyance and commissions of sale (if any) provided an invoice for same is first disclosed to the wife;
(b)second, in the event that the deposit has not been released, in payment to [Ms Q] in accordance with Order 2(a) hereof;
(c)third, such sum to NAB (estimated in the sum of $77,000) in payment of the arrears due and owing in relation to the [B Street] mortgage.
(d)fourth, such sum to NAB (estimated in the sum of $33,000) in payment of the arrears due and owing in relation to the [Town R] loan;
(e)fifth, the amount of $7,337 due and owing to [T Council] in payment of the outstanding rates due and owing over [B Street];
(f)sixth, the amount of $6,577.10 due and owing to the [S Council] in payment of the outstanding rates due and owing over [Town R];
(g)seventh, to pay to each of the husband and wife the sum of $50,000 by way of partial property settlement; and
(h)finally, the balance thereafter to be held on trust by Taussig Cherrie Fildes lawyers, such funds to be applied to meet the mortgage repayments due and owing over the [B Street] and [Town R] properties as and when they fall due.
4.Until further order, each party be and is hereby restrained from drawing down or making any withdrawal from the [B Street] Loan.
…
7.Within 7 days of the date of these Orders, the parties each provide by way of disclosure a list of jewellery, artwork and luxury items in their possession including but not limited to the husband complying with a call for the lists provided by him to Kenna Teasdale and/or Lander & Rogers.
…
In May 2023, the wife’s solicitors retained $60,927 in their trust account from the sale of 1 K Street and the orders provided for the ongoing payment of the B Street and Town R mortgage repayments. Upon the adducing of further evidence in early 2024, it was clear that the mortgages were again in arrears such that NAB was pressing foreclosure in respect of the properties.
In early 2023, NCAT made orders, relevantly, that the wife be joined as a respondent to the cross-claim of the husband in the Supreme Court building litigation.
On 14 February 2023, the Court made orders, relevantly, that leave be granted to the wife to join the husband’s sister, Ms J Leon as a second respondent to an Application in a Proceeding; for Ms J Leon to remove her caveat lodged against 1 K Street, Town L to enable settlement of the sale to occur; and for Ms J Leon pay the wife’s costs of and incidental to the Application in a Proceeding on a party and party basis fixed in the sum of $1,895.
In early 2023, the child Y fell ill at school. Staff at W School called an ambulance to transport Y to hospital. At the resumption of the trial on 9 March 2023, the Ambulance Victoria invoice of approximately $1,300 remained outstanding. The husband had necessary insurance cover for Ambulance expenses but had given the bill to the wife to pay – without telling her he had such cover.
On 2 March 2023, the wife filed an application for change of assessment of child support with Services Australia on the basis that the child support assessment was unfair because of a parent’s income, property and financial resources or earning capacity.
In mid-2023, the interim IVO against the husband for the protection of the wife was struck out.
On 14 July 2023, the Court made orders, by consent, relevantly that, the children complete their primary school education at W School; the parties to apply for the child X at their joint expense to attend from Year 7 at a private school agreed between the parties; the parties to apply for the child Y to attend AN School from Year 7 at their joint expense; the wife to pay the school fees for each of the children to attend W School for Term 2, 2023, with the husband to pay at first instance, and to be reimbursed by the wife upon the making of final property orders (an order I propose to discharge on the facts of this case and because the justice and equity of the case requires it), and the parties to each pay one half of the costs of the new laptop recommended by W School for the child X. The Court noted the parties had entered into a binding child support agreement as to no periodic payments by either party to the other of child support, and an equal sharing of specified non-periodic payments.
On 27 October 2023, the wife received the Child Support Registrar’s decision arising from her application made 2 March 2023. The Registrar determined the husband’s taxable yearly income for the period 22 August 2022 to 31 December 2024 to be $400,481. The husband has stated that he does not accept that assessment but has taken no action with respect to it. It was the wife’s evidence the determination was made because of the Business Activity Statement (“BAS”) of the LL Pty Ltd business for the 2022-2023 financial year indicating total sales of $8,690,712; and having regard to the balance of the husband’s business account in the sum of $915,000 as of 10 May 2023.
On 10 November 2023, the Court was notified by the wife’s solicitors that the wife intended to seek the proceeding be re-opened to adduce further evidence on the basis that the husband had not complied with his ongoing duty of disclosure.
On 13 November 2023, the wife filed an Application in a Proceeding. She sought, relevantly, that the matter be listed for a further one day final hearing; leave be granted to re-open the proceeding in relation to financial matters; and financial disclosure be provided by the husband.
The husband did not disclose at trial BAS for the LL Pty Ltd business beyond 31 March 2022, nor did he give the wife or the Court any indication in his evidence including at trial in March 2023 that the sales of the business had increased. The husband was asked whether he had any work in progress or invoices that he had not issued for work undertaken by the LL Pty Ltd business which he denied. The business went on to record a further $923,979 in income between 31 March 2022 and 30 June 2022 and went on to record a further $8,690,712 in sales in the following financial year.
ADDUCING FURTHER EVIDENCE
Neither of the parties cross-examined the other with respect to the further evidence adduced by them. The wife elected not to do so to not expend further funds or Court time on cross‑examination of the husband. The husband submitted that his further adduced evidence as contained in his affidavits filed 22 December 2023 (“H1A”) and 26 February 2024 (“H2A”) ought to be accepted by the Court without question due to the wife’s lack of challenge to that evidence by cross-examination. I observe that the extensive cross-examination of the husband at trial led me to the conclusion that the husband was not a credible witness.
In paragraph 5 of the husband’s supplementary written submissions (“Supplementary Submissions”) he relied upon a statement from Akhtar & Gaber (No 3) [2018] FamCAFC 208 which provides:
“where evidence is uncontradicted and is not otherwise inherently improbable or inherently incredible, and where the other party has not elicited in cross-examination or led in evidence some material to overcome it, either by proving to the contrary or throwing the matter into doubt, it should be accepted” emphasis added.
It is the wife’s submission that the evidence contained in H1A and H2A: is contradicted by the wife’s three affidavits (including annexures) filed 10 November 2023 (“W1A”), 9 February 2024 (“W2A”) and 4 March 2024 (“W3A”); is, where not specifically contradicted, inherently improbable and incredible; and has been thrown into doubt by the wife’s evidence. I agree with that submission.
The following were amongst the submissions made by the wife as to the husband’s evidence:[117]
(a)Annexure ML - 2 to H1A is described by the husband at paragraph 13(j) of that affidavit as “the profit and loss statement for [LL Pty Ltd] for the year ended 30 June 2023.” The BAS for the final two quarters of the 2023 financial year are annexed as MB-1 and MB‑2 of W3A. When viewed together the following can be seen:[118]
[117] Wife’s written closing submissions filed 24 April 2024, paragraph 17(a).
[118] Wife’s written closing submissions filed 24 April 2024, paragraph 6.
Total Sales
Discrepancy
Profit and Loss
BAS
3rd Quarter 1 January 2023 to 31 March 2023
$1,026,198.47
[Page 17 H1A]
$1,691,144
[Page 13 W3A]
$664,945.53
4th Quarter 1 April 2023 to 30 June 2023
$301,995.28
[Page 17 H1A]
$4,774,399
[Page 16 W3A]
$4,472,403.72
This discrepancy is not explained by the husband in his affidavit notwithstanding he was given the opportunity to do so (see MB-5 to W3A). Again, the husband’s evidence in H1A and H2A has been contradicted by his own disclosure. I agree with this submission.
In so far as the husband represents that the revenue from those projects was truly offset by associated expenses then there is no reason why he did not voluntarily provide disclosure (including of the alleged expenses) to the wife prior to her application on 10 November 2023 or in response to her specific request for such information as contained in her letter dated 2 October 2023 (page 42 MB-5 W1A). I agree with this submission and infer, that the revenue from those projects far exceeded the associated expenses.
I conclude, on a consideration of the evidence, that there should be an adjustment of 15 per cent to the wife. In respect of my consideration of those matters as set out in s 75(2) of the Act.
CONCLUSION
In all the circumstances, it is appropriate to make orders adjusting the parties’ property interests.
As sought by her, the wife will retain the B Street property, but subject to the home loan, and the husband’s interest in same shall be transferred to the wife.
The Court will make an order for the sale of the Town R property, and the outstanding loans in respect of the Town R property as secured against the B Street property, shall be discharged.
Where the GG Street property is occupied by the LL Pty Ltd business, the Court will not make an order for its sale. The Court can make orders that are just and equitable in all the circumstances, with the husband retaining ownership of both the real property and the business. The GG Street property is a commercial property in relation to which, on the husband’s evidence at least, the sale prospects are significantly improved with no lease to a third party attached. The husband has the option of selling it on that basis.
Neither party sought an order in relation to a superannuation split. It is appropriate that each party retains their own superannuation entitlements, unadjusted, which are insignificant in the factual context of this matter, and I make such an order.
The husband’s case was untenable and far removed from the Court being satisfied that, in all the circumstances, it was just and equitable to make the orders that he sought. His position before the Court remained that the B Street property in which the wife resides be sold, and the remaining real properties be retained by him. His orders sought included the now sold 2 K Street, Town L property. His percentage adjustment sought as between the parties was incomprehensible. The uplift in favour of the wife in respect of the known assets, which I consider appropriate in the circumstances of the case, being because of the s 75(2) of the Act matters (and in particular, the s 75(2)(o) of the Act consideration), and the adjustment for the contributions of the wife post separation, is an exercise of discretion in the context of considering how the Court is to arrive at a just and equitable determination.
The husband’s actions post separation have been to minimise the matrimonial pool available for division between the parties by the non-payment of debt in circumstances where he had capacity, both real and inferred, to meet that debt; to not disclose that which he should; and to otherwise strip the matrimonial property of assets, including via his sister and by way of non‑disclosure of new entities, such that the wife’s property settlement was adversely affected.
The net asset pool is $6,209,143. I have determined that there should be an adjustment to the wife in respect of my consideration of the s 75(2) of the Act matters of 15 per cent. That results in 65% being $4,035,942.95.
Additionally, I consider there should be a further percentage adjustment to the wife in respect of her contributions being made more arduous by the husband in the post separation period. That percentage adjustment in my view, should be significant. Whilst it need not be specified, it shall be around 6%.
The equity in the B Street property is approximately $3,546,886. The equity in the DD Street property is approximately $586,000. The equity in the Town R property is $290,013. The wife’s motor vehicle has a value of $30,000. These amounts total $4,452,899.
There is then the issue of the net sale proceeds remaining from the sale of 2 K Street, Town L. Doing the best I can on the evidence, those proceeds, applied in accordance with the orders of the Court, might be in the vicinity of $180,000 after payments out. I have determined that the wife should have this payment, whatever it is, to assist her in immediately meeting the home loan obligations and satisfying the NAB’s demands for payment prior to the settlement of the sale of the Town R property and thereafter. Her monthly mortgage repayments were $7049.58 a month, when a lesser interest rate was operative. The wife sought an order for the ongoing operation of the order of March 2021 which required the husband to meet these mortgage payments. He has not meet them. It is improbable he will now. Instead, making appropriate orders which are just and equitable, I propose to allow the wife to retain these funds, about which the husband has not provided disclosure, in place of making the orders she sought in this regard. I consider also that the husband now has no rental payments to meet.
The husband will retain his interest in the Leon Group, the GG Street property (equity $862,000), his interest in the AX Business, his art collection and those other items found to be retained by him. I include also the premature property distributions as received by him, and the husband’s legal fees which are not added back to the asset pool but nevertheless an interest retained by the husband and taken into consideration by me pursuant to s 75(2)(o) of the Act.
An issue that goes to the justice and equity of the orders is my consideration of whether the sale price of the Town R and DD Street properties will considerably exceed their valuations. These properties were valued in June 2022 and each of the parties determined that they would not put updated valuations before the Court at any time in March 2023, February 2024 and April 2024. It is probable that these properties have increased in value, rather than decreased. The Town R property was a land only valuation and the DD Street property was valued without an ongoing tenant. The parties, I find, are cognisant of this prospect yet have not sought different orders that might be directed to these circumstances. It is necessary for the Court, to make orders which are appropriate and just and equitable in the circumstances of the case, to make allowance for this potential outcome. In the event the net equity in these properties is greater than that as calculated in these reasons, and to ensure the overall percentage of division of property between the parties remains fairly consistent whilst not exact, because the asset pool would have increased in size, then any net surplus should be divided between the parties as to 70 per cent to the wife and 30 per cent to the husband.
I certify that the preceding four hundred and sixty-four (464) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 9 May 2024
ANNEXURE A
Property orders as sought by the husband
1.A percentage split of 47% to the wife and 53% to the husband
2.The husband retain property owned by him prior to marriage being:
(a)GG Street, Suburb UU and
(b)1 DD Street, Suburb UU.
3.The husband retains the Town R property subject to the existing mortgage and current contract debts and the wife do all things necessary to transfer the property to the husband.
4.The husband retain the two minority shareholdings in VV Business and AX Business at the value attributed in the Ms Q report, less all outstanding liabilities to be paid from the proceeds of sale of the B Street Property.
5.The husband retain 2 K Street, Town L.
6.That the proceeds of the sale of 1 K Street, Town L of $315,000 plus GST be applied as follows:
(a)First, the loan from Ms J Leon in the amount of $118,375 for contractual obligations of Mr Leon and Ms Bonnay for the AX Business build
(b)Secondly, the loan from Ms J Leon for W School for X and Y of $39,182.37 as joint obligation of Mr Leon and Ms Bonnay for school fees
(c)Thirdly, the loan from Ms J Leon for part payment of the Ms Q report in the amount of $5,500
(d)The balance remaining to be divided in the proportions of 47% to the wife and 53% to the husband.
7.That the wife retains all or any of the other entities or trusts as she would like to retain or otherwise all of the entities be wound up and each party be equally responsible for the debt/taxation realised by appointing a jointly agreed forensic accountant
8.That the property situated at B Street be sold by auction and the proceeds of sale be applied to pay as follows:
(a)The mortgage secured on the property and the costs of sale.
(b)The liabilities of the Leon Group in the sum of approximately $1.5 million.
(c)The joint taxation obligations of the directors' loans of $2,169,320, estimated to be $750,000 and to be confirmed by a jointly appointed forensic accountant.
(d)The balance then remaining to be divided as per paragraph 1 hereof.
9.All chattels at B Street, Suburb C be itemised by an independent company and a pick for pick occur or alternatively from the list provided by the independent company, the wife to prepare two equally weighted lists and the husband pick one of those lists.
10.The motor vehicle that the wife drives be retained by her at a value of $40,000 and the wife and husband do all things necessary to transfer the vehicle into the wife’s name at her cost.
11.The combined value of the parties' superannuation entitlements be divided equally save that the wife's 50% entitlement be less the sum of $20,000 which the wife removed from the husband’s self-managed superannuation without the husband’s prior knowledge or consent.
12.The wife within 7 days of the orders return to the husband the Husband’s watch collection in her possession and control.
13.The wife retains as part of her property entitlement the proceeds of sale of 2 DD Street, Suburb UU by her in the sum of $1,650,000.
14.That if the “[…]” manuscript is commercialised that the husband receives 50% of any proceeds/royalties.
15.Each party be responsible for their own personal liabilities.
16.Each party pay their own legal costs.
Property orders as sought by the wife
1.Within fourteen (14) days of the date of these orders the husband deliver to the wife the following:
(a)overnight bag;
(b)her watch (being a gift to her for her 40th birthday);
(c)her necklace;
(d)her ring;
(e)her jewellery case previously stored in the safe; and
(f)any other personal items of the wife which he has in his possession power or control.
2.Within sixty (60) days (“Date”) the Husband:
(a)pay and discharge the NAB Loan number …05 (“B Street Mortgage”) secured on title to the property situate at B Street, Suburb C in the State of Victoria (“B Street”);
(b)pay all outstanding rates in relation to B Street;
(c)pay all arrears as may be outstanding in respect of NAB loan account number …57 (“Town R Land Loan”) NAB loan account number …86 (“Town R Construction loan”) from 16 March 2021 to date;
(d)pay all outstanding utilities, rates, outgoings, council fees and taxes for Town R;
(e)transfer to the Wife all of his right title and interest in B Street.
(f)assign any amount owing by the Wife to LL Pty Ltd to the Husband and indemnify her in respect of same;
(g)pay any amount owing to HH Pty Ltd including court fees, penalties and interest, for which the Wife is liable;
(h)pay to Mr BG the sum of $3,000 by way of reimbursement for the Motor Vehicle repair costs incurred in 2021;
(i)pay all rates, land tax, utilities and costs owing and unpaid with respect to Town R.
3.Within 14 days the parties do all such acts and things as may be required to sell the real properties situated and known as:
(a)If not already sold pursuant to interim orders, CC Street, Town R in the State of New South Wales (“Town R”) on the following terms and conditions:
(i)the Wife have the sole conduct of the sale;
(ii)the Husband sign an irrevocable sale authority within seven (7) days of being presented same;
(iii)the reserve price and manner of sale be as determined by the wife having regard to the recommendations of the selling agent;
(iv)following the wife executing a contract of sale in relation to Town R:
A.the Husband sign such discharge authorities and such further or other document as may be required by the NAB to discharge the Town R Land Loan and Town R Construction Loan upon settlement, within 48 hours of being presented to him;
B.the husband provide all necessary authorities to the conveyancers nominated by the wife to conduct the conveyance in accordance with these order within 48 hours of a request for same.
C.upon settlement of sale the proceeds of sale be applied as follows:
(1)to pay all marketing costs and commissions of the sale;
(2)secondly, to discharge the balance of the Town R Land Loan and Town R Construction Loan;
(3)thirdly, to NAB home loan account number …05;
(4)fourthly, to discharge any rates and taxes outstanding against Town R;
(5)finally, the balance then remaining be paid to the wife by way of partial property settlement.
(b)GG Street, Suburb EE in the State of Victoria (“GG Street”) on the following terms and conditions:
(i)the Wife have the sole conduct of the sale;
(ii)the Husband sign an irrevocable sale authority within seven (7) days of being presented same;
(iii)the reserve price and manner of sale be as determined by the wife having regard to the recommendations of the selling agent;
(iv)following the wife executing a contract of sale in relation to GG Street:
A.the Husband sign such discharge authorities and such further or other document as may be required by the FF Bank to discharge the mortgage and overdraft secured against GG Street upon settlement, within 48 hours of being presented to him;
B.the husband provide all necessary authorities to the conveyancers nominated by the wife to conduct the conveyance in accordance with these order within 48 hours of a request for same.
(v)upon settlement of sale the proceeds of sale be applied as follows:
A.to pay all marketing costs and commissions of sale;
B.secondly, to discharge the balance of the FF Bank mortgage and overdraft secured against GG Street;
C.thirdly, in payment of any outstanding rates or taxes due and owing against the property; and
D.fourthly, the balance then remaining to the wife.
(c)1 DD Street, Suburb UU in the State of Victoria (“DD Street”) on the following terms and conditions:
(i)the Wife have the sole conduct of the sale;
(ii)the Husband sign an irrevocable sale authority within seven (7) days of being presented same;
(iii)the reserve price and manner of sale be as determined by the wife having regard to the recommendations of the selling agent;
(iv)following the wife executing a contract of sale in relation to DD Street:
A.the Husband sign such discharge authorities and such further or other document as may be required by FF Bank to discharge the mortgage secured against DD Street upon settlement, within 48 hours of being presented to him;
B.the husband provide all necessary authorities to the conveyancers nominated by the wife to conduct the conveyance in accordance with these order within 48 hours of a request for same.
(v)upon settlement of sale the proceeds of sale be applied as follows:
A.to pay all costs, commissions and expenses of sale;
B.secondly, to discharge the balance of the FF Bank mortgage secured against DD Street;
C.thirdly, in payment of any outstanding rates or taxes due and owing against the property; and
D.fourthly, the balance then remaining to the wife.
(d)If it has not already been sold pursuant to the orders made on 12 February 2024 sell the property at 2 K Street, Town L in the State of Victoria (“Town L”) and upon settlement of the sale apply the balance in accordance with the orders made on 12 February 2024 with the balance which is to be transferred to the trust account of Taussig Cherrie Fildes to be paid to the wife.
(collectively, (“Properties” and “Sale of Properties”).
4.If Town L has already been sold pursuant to the orders made on 12 February 2024, within 24 hours each party do all acts and things and sign all such documents as may be required to transfer the balance remaining in the trust account to the wife.
5.Liberty is granted to the Wife to provide a copy of these orders to:
(a)any selling agent as may be engaged by her for the purposes of the Sale of Properties or any of the Properties therein;
(b)the NAB and FF Bank;
(c)such conveyancer or conveyancers as may be engaged by her to undertake the conveyance in relation to the Sale of Properties or any of the Properties therein.
6.In default of the Husband complying with all of his obligations pursuant to Order 4 and remaining in default of any obligation for 7 days, then pursuant to section 106A of the Family Law Act:
(a)the wife Ms Bonnay be and is hereby appointed to execute all deeds and/or instruments in the name of the husband as required and to do all acts and things to give validity and operation to the deed and/or instruments; and
(b)in respect of the transfer of land in relation to the Sale of Properties listed at Order 4 hereof, Kylie Sanders of Taussig Cherrie Fildes (solicitors for the Wife), be and is hereby appointed to do all such acts and things required on behalf of the husband to effect the electronic conveyance of the transfer of the Properties or any property therein via PEXA.
7.If there is any tax assessed in the wife’s name as a result of the Sale of Properties the husband pay the tax within seven days of being called upon to do so.
8.Within seven days of a request by the wife, the husband provide to the wife such documents and information as may be requested by the wife to enable her to obtain advice to calculate the tax (if any) payable by her in relation to the Sale of Properties.
Mortgage Repayments
9.Pending the husband’s full compliance with his obligations pursuant to Order 4 of these Orders, paragraph 17 of the Orders made on 16 March 2021 remain in full force and effect.
Indemnities
10.The Husband pay as and when they fall due, remain liable for and indemnity the Wife with respect to:
(a)all claims, demands and judgments (including penalties and interest) by or on behalf of HH Pty Ltd including pursuant to or arising from:
(i)the construction contract signed on 19 August 2020 between for HH Pty Ltd, Ms Bonnay and Mr Leon;
(ii)District Court of New South Wales case number …;
(iii)NSW Civil and Administrative Tribunal (“NCAT”) proceedings file number … and …;
(iv)the Supreme Court proceedings which are to commence pursuant to Order 3 of the Orders made by the NCAT in early 2023
(v)including all legal costs from JJ Lawyers incurred and payable by the wife in respect of the proceedings in subparagraph 9.1.3 and 9.1.4; and
(b)all claims, demands and judgments (including penalties and interest) from AK Architects;
(c)all past, current or future liabilities in relation to LL Pty Ltd, and KK Pty Ltd.
11.Unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all property (including chooses in action) in the possession of such party as at the date of these orders and without limiting the generality thereof:
(i)the wife retain:
A.B Street and the contents;
B.The net proceeds of sale of:
(1) Town R;
(2) GG Street
(3) DD Street
C.the partial property settlement which she received pursuant to previous orders of this court;
D.her car;
E.he household contents;
F.her superannuation;
G.her cash at bank
(ii)the husband retain:
A.the partial property settlement which he received pursuant to previous orders of this court;
B.his household contents and possessions (save for those which he is to return to Ms Bonnay pursuant to Order 1)
C.the Leon Trust (including LL Pty Ltd, the interest in MM Pty Ltd as trustee of the NN1 Unit Trust, the interest in OO Pty Ltd as trustee for the NN2 Unit Trust); and
D.PP Pty Ltd;
(b)monies standing to the credit of the parties in any joint bank account be retained by the wife;
(c)insurance policies remain the sole property of the owner thereof;
(d)each party forego any claims he or she may have to any superannuation or related benefits belonging to or earned by the other;
(e)each party pay, be solely liable for and indemnify the other against:
(i)any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(ii)any liability in that party’s sole name including credit cards or loans.
12.All previous extant property orders (save for paragraph 17 of the Orders made on 16 March 2021) be discharged.
13.All extant applications be dismissed.
14.The husband pay the wife’s costs of and incidental to these proceedings.
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