Lestari & Hidayat (No 4)
[2023] FedCFamC1F 850
•9 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lestari & Hidayat (No 4) [2023] FedCFamC1F 850
File number(s): SYC 585 of 2016 Judgment of: ALDRIDGE J Date of judgment: 9 October 2023 Catchwords: FAMILY LAW – PROPERTY – Final property proceedings between the husband and wife – Where the wife’s mother was joined to the proceedings – Where there is one property which is the major asset of the pool – Where the parties agreed that the property should be sold –
Where there is a lack of evidence due to the circumstances of the case – Orders for the property to be sold and net proceeds divided 60 per cent to the wife and 40 per cent to the husband.Legislation: Family Law Act 1975 (Cth) s 75(2) Cases cited: Kowaliw and Kowaliw (1981) FLC 91-092
Lestari & Hidayat (No 2) [2022] FedCFamC1F 320
Lestari & Hidayat (No 3) [2022] FedCFamC1F 445
Division: Division 1 First Instance Number of paragraphs: 124 Date of hearing: 10 July 2023 Place: Sydney Solicitor for the Applicant: QV Law Counsel for the Respondents: Ms Reid Solicitor for the Respondents: Savage Solicitors ORDERS
SYC 585 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LESTARI
Applicant
AND: MS HIDAYAT
First Respondent
MS LIPARI
Second Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
9 OCTOBER 2023
THE COURT ORDERS THAT:
1.Within sixty (60) days from the date of these orders, the parties are to do all acts and things and sign all documents necessary to forthwith place the property situated at F Street, Suburb G (“the Suburb G property”) (Folio Identifier: …) for sale and sold by public auction on the following terms:
(a)A real estate agent is to be appointed by the agreement of the parties to market the property and failing such agreement the real estate agent shall be as nominated by the President of the Real Estate Institute of New South Wales or the President’s nominee at the shared expense of the parties;
(b)The reserve sale price of the property shall be as agreed between the parties and failing such agreement, the sale price shall be nominated by the President of the New South Wales Division of the Australian Property Institute or the President’s nominee at the shared expense of the parties;
(c)A solicitor is to be appointed to act on the sale of the property by the agreement of the parties and failing such agreement by a solicitor nominated by the President of the Law Society of NSW at the shared expense of the parties;
(d)The parties shall co-operate with all reasonable requests by the real estate agent in relation to the sale including to facilitate inspections of the property by prospective purchasers; and
(e)Until such time as the Suburb G property is sold, the wife is to do all acts and things necessary to ensure that she maintains the Suburb G property in good order and pays all outgoings in respect of the Suburb G property including:
(i)Repayments on any mortgage secured over the property;
(ii)Insurance for all reasonable insurable risks, including building and contents insurance;
(iii)Strata, council and water rates; and
(iv)Any land tax due on the property.
2.On completion of the sale of the Suburb G property, proceeds of sale shall be applied in the following order of priority:
(a)In discharge of any mortgage(s) and loans secured over the property;
(b)In payment of any outstanding council rates, water rates or land tax due in respect of the property;
(c)In payment of any real estate agent’s commission, marketing expenses, auctioneer’s fees;
(d)In payment of any solicitor’s costs and disbursements for acting on the sale;
(e)In payment of the wife’s credit card liability of $55,000;
(f)In payment of the husband’s credit card liability of $93,000; and
(g)With the surplus to be divided so that the wife receives 60 per cent and the husband 40 per cent.
3.As between the husband and wife, and subject to the above orders, the husband and wife shall each respectively retain all interest in and entitlement to:
(a)All personal property now in his/her respective name, possession or control and
(b)All interests in superannuation funds standing in his/her sole name respectively.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lestari & Hidayat has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
These are property proceedings between the applicant husband, Mr Lestari (“the husband”) and respondent wife, Ms Hidayat (“the wife”) and the deceased estate of the second respondent, Ms Lipari, the wife’s mother. She had claimed an interest in the property at Suburb G, being the major asset for division in the proceedings.
This matter has had a most unfortunate history with repeated vacations of the final hearing necessary for matters beyond the parties’ control.
The proceedings were commenced by the husband on 4 February 2016 seeking final orders for property settlement.
On 9 October 2020, the wife filed an application seeking to join the second respondent to the proceedings and sought a declaration that the second respondent be declared the beneficial owner of the Suburb G property.
A continuing point of contention for the parties was the valuation of the property at Suburb G which required orders to be made appointing both a single expert valuer to value the property and a single expert surveyor to provide evidence as to the costs of a proposed subdivision of the land on which the property was situated. Orders were made in November 2017, May 2018, July 2018 and further directions in January 2020. By September 2021, orders were still being sought in relation to the valuations of the Suburb G property and by October 2021 the parties had still not complied with directions and had not agreed as to letters of instruction. It was not until 30 November 2021, when the matter was before Rees J, letters of instruction were settled.
On 28 February 2022, the matter was listed for call over before Rees J and both parties gave assurances that the matter was now ready to commence for final hearing.
The original final hearing commenced on 9 May 2022. At that time, both the wife and the second respondent were represented by the same counsel. However, on the first day of the hearing, the wife made an application for an adjournment so that a litigation guardian could be appointed on her behalf due to her declining mental health. That application was refused due to the evidence in support of the application not supporting the appointment of a guardian at that time (see Lestari & Hidayat (No 2) [2022] FedCFamC1F 320). The following day another application was again made for an adjournment on the basis that counsel for the wife and second respondent considered she could no longer appear for both parties without a conflict of interest and sought either to adjourn or vacate the hearing. Subsequently, it was vacated and orders were made for the wife’s solicitors to pay the husband’s costs incurred in relation to this hearing in the sum of $7,750.
On 23 May 2022, the wife’s solicitors filed a fresh application seeking again to appoint a litigation guardian. I heard that application on 14 and 17 June 2023 and made orders for the appointment of a guardian on 17 June 2022 (see Lestari & Hidayat (No 3) [2022] FedCFamC1F 445).
On 5 July 2022, the matter was fixed for hearing on 9 November 2022.
On 30 September 2022, the second respondent died and the final hearing was again vacated on 9 November 2022.
On 31 March 2023, the wife applied to the Supreme Court of New South Wales for a grant of probate of the second respondent’s estate which was granted on 10 July 2023.
By 1 May 2023, the parties were in a position to confirm they would be ready to proceed to final hearing. The matter was relisted to commence on 10 July 2023.
BACKGROUND
The husband was born in 1977 and was 45 years old at the time of the final hearing. The wife was born in 1978 in Country C and was 45 years old at the time of the hearing.
The parties met in 2008. In 2009, they commenced their relationship and cohabitation in Australia living with the husband’s parents at Suburb J. The wife frequently travelled to Country C and spent the majority of her time there until the parties married.
The parties were married in Country C in 2011.
The wife suffers from a mental health disorder and throughout the relationship has been hospitalised frequently due to her mental health issues. She was placed on a disability support pension in 2013, on which she remains.
In 2012, the wife purchased a vacant block of land in Country C known as “[H Property]”. Later that year, the wife also purchased an off the plan apartment in Country C known as the “[K Property] apartment” for approximately AUD 47,000. The wife’s evidence was that the husband initially contributed AUD 13,050 towards the purchase of the apartment but made no further payments towards it after that.
Later in 2012, with a loan from L Bank, the wife purchased land at F Street, Suburb G in her sole name for $230,000. The parties could not agree about the source of funds for the deposit.
In 2013, the wife refinanced the Suburb G mortgage for the sum of $443,200 in order to construct the residence that now stands on the property. M Builders commenced construction mid-2013.
The parties moved into the Suburb G property in about late 2013 to early 2014. Soon after this, rooms in the property were leased out to tenants to assist with the mortgage payments.
In mid-2014, the husband lodged a development application with N Council for the subdivision of the land at Suburb G. That application was approved in late 2014.
In late 2014, the wife obtained a mortgage from a Country C bank, P Bank, in order to purchase the K Property apartment. The land known as H Property was also sold around this time so that the proceeds could be applied to the P Bank mortgage.
The parties separated on a final basis after an incident in late 2015. The wife says that apprehended domestic violence orders were issued for the protection of both parties from each other.
The parties were divorced in 2017.
In late 2017, the husband entered into a contract with Q Company, a surveying firm, for the subdivision of the land at Suburb G. By early 2018, Q Company put the husband on notice that he was in breach of their contract as a result of non-payment of their fees. By mid-2018, Q Company had filed a claim against the husband in the Local Court for breach of contract.
On 9 July 2018, Henderson J made orders permitting the wife to sell the K Property apartment with the net proceeds to be held in an interest-bearing account until further order of the Court, or as agreed by the parties.
In mid-2018, the wife accepted an offer for the sale of the K Property apartment and on the same day, made her final payment towards mortgage.
On 20 August 2018, the husband’s lawyers wrote the wife’s lawyers setting out proposed steps for the sale of the K Property apartment. The next day the wife’s lawyers responded, advising the husband that a purchaser had already been found.
However, on or about 10 September 2018, the wife cancelled the sale. She consented to the husband taking control of the sale of the K Property apartment conditional upon the husband meeting the mortgage payments until its sale, and if not, would result in P Bank taking possession of the property. In early 2019, the developer of the K Property apartment wrote to the wife informing her that no mortgage payments had been made for three months, that P Bank would now be taking possession of the property and the deposit and repayments to the developer were not refundable.
THE EVIDENCE RELIED UPON
It is important to note the limited evidence relied upon by the parties.
The wife relied on the following affidavits and Financial Statements:
·Affidavit of the wife filed on 24 September 2021 (although it is to be noted that filed copy of this affidavit is not complete in that it does not include any annexures after Annexure “MH-10”. A complete copy is to be found in the Court Book prepared by the parties);
·Affidavit of the second respondent filed on 24 September 2021;
·Financial Statement of the wife filed on 24 September 2021;
·Financial Statement of the second respondent filed on 24 September 2021; and
·Affidavit of Dr E filed on 7 June 2022.
As is obvious, there was no up to date evidence at the hearing.
Dr E diagnosed the wife with a serious psychiatric disorder with a parallel disorder. He expressed the view that whilst there were periods where the wife could function in a reduced capacity “under pressure she becomes completely overwhelmed, […] and decompensates potentially into self-harm” (Affidavit of Dr E filed on 7 June 2023, p.6).
Given these observations, Dr E formed the view that the wife did not have the capacity to give proper instructions or to attend a court hearing.
It is thus understandable that no further evidence was obtained from the wife. She was not in a position to be cross-examined.
There was, however, no evidence from another source as to her present circumstances or needs.
The second respondent’s death prevented her from being cross-examined on her affidavit.
Those unfortunate events have the effect that the evidence of the wife and the second respondent has not been tested by cross-examination. Thus, their evidence, especially on contested matters, must be looked at with care, with very much reduced weight given to such evidence which is not supported by other evidence or strong probabilities.
The husband relied on the following:
·Affidavit of the husband filed on 24 September 2021 and
·Financial Statement of the husband filed on 24 September 2021.
He did not seek to rely on any more recent evidence and did not attempt to explain why that was so.
The Financial Statement must be approached with some care as the husband has not lodged an income tax return since 2014 and agreed that, at least at times, he has worked for cash.
He was an unsatisfactory witness – evasive, argumentative, and determined to argue his case rather than answer questions. He agreed that he altered a bank statement attached to an affidavit of his of 26 April 2018 by removing the word “payroll” next to a transfer to the wife. The husband was unconcerned by this dishonest behaviour, seemingly on the basis that the affidavit was not now relied upon.
The husband also had difficulty when confronted with clear evidence. He had asserted that the wife lived with him in his parents’ house, rent free, for three years. He maintained that position, or said that the period was two years, even when confronted by the wife’s passport which showed that at the relevant times, she was in Australia for well less than a year, possibly just three or so months.
The husband contended, as will be discussed more in more detail shortly, that he provided the funds for the deposit on the purchase of the house, the subject of these proceedings, from money given to him by his parents. He pointed to transfers of funds to the wife. He did not identify however, the almost immediate re-transfers of the funds to him, and was unable to explain why this had occurred or how these funds which had been returned eventually made their way to the payment of the deposit.
The husband is a trained professional. He contended that he had spent much time and expertise identifying a suitable block of land for purchase, identifying a house of the correct dimensions and its precise location on the block, so as to allow for future subdivision. The house that was ultimately built was a standard project home.
Even if the husband spent some time selecting the Suburb G block of land, the particular house to be built and identifying its precise location on the block, his evidence fell far short of justifying the fee of $150,000 to $200,000 he sought to have imposed on the wife (either by payment or a contribution) for those efforts. His claim is an extravagant exaggeration.
It follows that the husband’s evidence must also be approached with care when it is not supported by other persuasive evidence or strong probabilities.
I will therefore attempt to focus on what the parties said at the relevant times having regard to the documents created at the time rather than the unsupported assertions in their evidence.
Unfortunately, as will appear, the records are incomplete with often critical areas missing. It is very much the case of the Court having to do the best it can on the limited material before it.
THE PROPERTY TO BE DIVIDED
The Suburb G property
This property was valued on 20 January 2022 as being worth $1.125 million or $1.325 million if subdivided as envisaged by the husband (Exhibit 1, p.754). Its precise value is immaterial as it is agreed it should be sold.
The property is encumbered by a mortgage of the order of $360,000 to $375,000. Again, the precise sum is not material as it will be paid on sale.
In the proceedings as originally constituted, the second respondent contended that she was the beneficial owner of the entirety of the Suburb G property. Pursuant to the grant of probate of her estate, that interest, whatever it may have been, passed to the wife. That issue thus fell away.
The question of the contributions to this property remain. The focus of the parties at the hearing was primarily on the payment of the deposit, but the evidence of the repayment of the mortgage is illuminating.
The deposit
The vacant block of land at Suburb G was purchased by the wife in 2012 for $230,000. The purchase was completed later that year. The wife had the benefit of a First Home Owners Grant and borrowed the rest, presumably from Westpac (which is shown on a property search as the mortgagee).
The amount required for the deposit was $11,500. The husband contends that he paid the deposit.
The husband received two amounts of $30,000 from his father on 25 January 2012 and 8 February 2012 (Exhibit 1, p.434–435), as shown by his CBA account.
On 25 January 2012, the husband transferred $28,000 to another account controlled by him (he said he did so because it was an interest-bearing account) and $2,000 to another account.
The husband received $10,000 into his account 30 January 2012 and transferred it to another account on the same day.
A similar transaction involving a similar sum, but involving another different account, occurred on 7 February 2012.
On 8 February 2012, the husband transferred $20,000 to one account and $9,500 to another. He said these were the wife’s accounts.
The wife’s R Bank statements (Exhibit 1, p.636) show that she received $3,550 from the husband on 2 February 2012, $10,000 on 7 February 2012 and $20,000 on 9 February 2012. These funds cannot have been the source of the deposit on the Suburb G property because they were immediately transferred out of the account – $3,652.28 on 3 February 2012, $10,000 on 7 February 2012 and $30,000 on 9 February 2012 to accounts of the husband. The result was a closing balance of $200 on 15 February 2012.
The husband accepted that the funds had been returned to him but did not know where the money went. There is no evidence as to what happened to this money. The husband said it was used to pay the deposit but cannot explain how.
Thus, whilst the husband may have had the funds available to pay the deposit (assuming he retained at least some of the funds received from his father) there is no evidence that he did so.
The wife contends that she paid the deposit from funds given to her by the second respondent.
The bank statements of the second respondent indicate that she transferred money to the wife during 2011 and commenced to make more frequent transfers from December 2012. There is no evidence of transfers during most of 2012.
Thus, whilst the wife might have had the funds available for the deposit from the funds received in 2011, again there is no supporting evidence for her claim that she paid the deposit.
Whilst it might be thought more likely that the wife, as the person who entered the contract for the purchase of the property paid the deposit, that begs the question as to the source of the funds.
The state of the evidence does not permit a finding that either party provided the funds for the deposit. Each party, most likely, had access to funds provided by their parents.
The payment of the deposit is therefore not a basis for adjusting the weight to be given to financial contributions.
The mortgage
In mid-2013, the wife refinanced the property by obtaining an advance from L Bank in the sum of $443,200. In addition to paying out the existing mortgage, approximately $258,000 was used for the construction of a project home on the land.
The wife lived in the Suburb G property. The husband lived there at times, it seems, but not after late 2015, when the parties separated.
It is not in dispute that the wife was on a disability pension from at least 2013. In her affidavit, she accepted that she had insufficient income from that source to meet the mortgage payments. Accordingly, she sublet parts of the house to tenants and used those funds to meet the mortgage payments. It also seems clear from the second respondent’s bank statements that, at least at times, she collected the rent and made mortgage payments. That is consistent with the wife’s many stays in hospital.
Whilst it is possible that the second respondent made some of the mortgage payments from her own funds, the evidence does not make this clear or how much was spent. No attempt was made by the parties to quantify any such payments. It also seems clear that the second respondent also supported the wife financially by giving her money and paying debts she owed.
The husband said that he paid the wife $1,000 per month, a total of $20,000, to enable her to meet the mortgage payments (Husband’s affidavit filed on 24 September 202, paragraph 51). He also said that he had to close his business in 2015 and as a result, lost its income. He also said that most of the mortgage payments had been made from the rent paid by the tenants (Husband’s affidavit filed on 24 September 202, paragraph 83) and that the rental payments exceeded the monthly liability under the mortgage.
These last statements conflict with those earlier outlined and are generally inconsistent with the evidence of the wife and the second respondent. In the absence of independent supporting evidence, I cannot find that the husband made any contribution to the repayment of the mortgage after separation in late 2015.
The accounts for the husband’s business record the wife as receiving regular payments of the order of $3,346 each fortnight for “payroll”. The husband explained the record as being necessary to prove to the proposed lender of the land to be purchased that the wife had a regular and substantial income. He did not suggest the money was actually paid to the wife and there is no reference to it in the wife’s evidence or bank statements. These accounts do not assist in the resolution of the proceedings.
It is not in doubt that the husband procured a development approval to subdivide the property, most likely without consulting the wife, and engaged a business to carry out the necessary work for approximately $70,000. He failed to pay most of the 10 per cent deposit required and was subsequently successfully sued in the Local Court for the balance of it.
It may be accepted that the husband expended effort in pursuing the development but there is no evidence that suggests a successful subdivision would have resulted in a net profit, or a profit of any significant value.
It was through the efforts of the wife and possibly the second respondent that the mortgages and in particular, the L Bank mortgage, have been paid with little or no contribution from the husband.
Against that must be weighed the wife’s sole use of the house (which was, obviously, hampered by the three tenants also living there) and the husband’s attempts to subdivide the property.
Overall, these considerations favour the wife.
The land in Country C
The K Property apartment
In 2012, the wife acquired an interest in a property in Country C which can be described as the K Property apartment. It was bought off the plan with the building to be constructed. The cost was AUD 47,000. The parties used that exchange rate at the hearing.
The wife’s evidence, supported by a schedule from the vendor, is that she made a down payment of AUD 9,500 in 12 instalments over the next year.
The wife accepted that the husband made a contribution of AUD 13,050 to the purchase of the apartment.
In order to fund the purchase the wife borrowed an amount from P Bank in 2014.
As at 24 June 2018, there was an amount outstanding. The wife and the second respondent formed the view that they could not afford to maintain the payments. It is not clear but at least some, if not all, of the payments had been made by the second respondent but it is not necessary to resolve that issue. The husband made no contribution to the mortgage payments.
On 9 July 2018, a judge of the Federal Circuit Court of Australia (as it was then known) made an order permitting the wife to sell the apartment. Her evidence is that she found a buyer who was prepared to take over the mortgage and pay the wife a further AUD 10,000.
On 20 August 2018, the husband’s lawyers wrote to the wife proposing the appointment of a real estate agent and lawyer to act on the sale and a sale price (Exhibit 1, p.319). By reply, the wife informed the husband of the sale of the apartment and its terms.
On 10 September 2018, the husband’s lawyer noted that the wife had cancelled the sale organised by her “and that you wish for [the husband] to handle the sale” (Exhibit 1, p.324). He asked her to advise him of real estate agents she had contacted so that they would not be involved twice (Exhibit 1, p.324).
Later that day, the wife replied listing the agents that had been contacted and added:
[The husband] will need to take over the sales of apartment […] with his choice of real estate agent and his choice of solicitor and he will need to continue to pay the repayment to [P Bank], the apartment will be seized by [P Bank] in 3 months.
(Exhibit 1, p.325)
On 17 October 2018, the husband’s lawyers wrote to the wife along similar lines to their earlier letter but proposing different agents and alternate sale options if the apartment did not sell within three months (Exhibit 1, p.327).
In her reply of 22 October 2018, the wife reaffirmed the cancellation of the sale arranged by her, reiterated her view that she had given the husband authority to conduct the sale and reminded the husband of the need to pay the mortgage (Exhibit 1, p.330).
No mortgage payments were made and the apartment was seized by P Bank.
The husband’s case is that the above narrative is false. In his written submissions, prepared by the husband himself, he asserts that the wife has sold the property and failed to account for the proceeds.
The husband’s oral submissions, made by his lawyer, are that the wife’s narrative is false and that the property was sold at an undervalue. He accepted that no orders could now be made in relation to the property but submitted that it should be added back as a notional asset or otherwise taken into account under s 75(2)(o) of the Family Law Act 1975 (Cth) (“the Act”).
The husband relied on a valuation of the apartment undertaken on 14 February 2019 (Exhibit 1, p.573). The valuers noted that at that time the apartments were 85 per cent complete and that whilst electricity and clean water were available, they had not yet been connected (Exhibit 1, p.574).
However, neither of the husband’s submissions can be accepted because it is plain from documents from P Bank and the vendor that in early 2019 the contract for the purchase of the apartment was cancelled due to non-payment of the mortgage. I note that the translation of the document wrongly records the date as early 2010. There is no evidence at all that suggests the wife sold the property or received the benefits of its sale.
Thus, on the evidence available, ownership of the apartment reverted to the vendor.
The apartment was lost in the course of a disagreement between the parties as to its sale and the non-payment of the mortgage. The evidence does not permit me to make a finding that the conduct of either party was reckless, wanton or negligent (Kowaliw and Kowaliw (1981) FLC 91-092).
There will be no add back or adjustment under s 75(2)(o) of the Act.
H Property
In 2012 the wife purchased a vacant block of land known as H Property. Her recollection is that it was sold in 2014 and any proceeds were used to pay the mortgage on the K Property apartment.
The husband’s evidence was that he transferred $5,050 in early-mid 2012, $2,050 on 3 April 2012 and $3,000 on 25 June 2012 for the purchase of the land. He also provided $3,000 in cash “to top up the purchase of the land” (Husband’s affidavit filed on 24 September 202, paragraph 41).
He said the land was purchased for $6,000 so obviously not all of the above funds were used for the purchase. He continued that he was told by the wife that she had sold the property in 2014 for $29,000 and given the proceeds to her mother. If that is so, the wife has now received whatever remained because she is the sole beneficiary of the second respondent’s estate.
It is unlikely, in the ordinary course of events, that property would increase in value by nearly five times in just two years. Whilst it is possible that it could be so, no evidence was called to explain that increase.
I am sceptical about the husband’s evidence as to the price for which the property was sold for that reason. When that is added to my general scepticism as to the reliability of his evidence, I do not accept it.
It is agreed the property has been sold. There is no basis for adding it back or making an adjustment under s 75(2)(o) of the Act.
The remaining assets and liabilities
The value given for the parties’ furniture in the lists of assets and liabilities (found in the husband’s Case Outline filed on 4 July 2022 which was relied upon by the parties) was a combined figure and may be put to one side.
There is no basis for including the historic but unpaid costs for completing the subdivision of the Suburb G property on the balance sheet as that will not occur. I will not include the husband’s unpaid legal costs.
The parties’ superannuation interests are extremely small and it was agreed that each party should simply retain their own entitlements. The husband acknowledged that the appropriate amount to be taken into account as his credit card liabilities was the amount owing at the date of separation which was $93,000 approximately. He agreed the wife’s credit card debts should be included.
Thus the relevant property and liabilities are:
ASSETS No. Ownership Description Value 1 J Suburb G $1,125,000 2 W Wife’s car and household contents $22,500 3 H Husband’s car and household contents $9,000 Total $1,565,500 LIABILITIES No. Ownership Description Value 4 J Suburb G mortgage $375,000 5 H Husband’s credit cards $93,000 6 W Wife’s credit cards $55,000 Total $523,000 NET ASSETS Total $1,042,500
The parties are agreed that the form of order should be that the Suburb G property be sold, the mortgage and the credit card debts be paid and that the balance be divided. Each party will retain all other assets held by them.
How are the proceeds to be divided?
The parties entered into a pre-nuptial agreement in 2011 in Country C. Neither party relied on it in any way and it may therefore be ignored.
The husband contends that his financial contributions greatly exceeded the wife’s because:
·He contributed the $60,000 he received from his parents;
·He paid the deposit on the Suburb G property from that money;
·He is entitled to $150,000 to $200,000 in recognition of his finding the land at Suburb G as being one suitable for subdivision and taking steps for its subdivision; and
·An adjustment should be made in his favour because the wife retained the benefit of the two properties in Country C, or, alternatively, it was her fault that they were lost.
I accept that the husband received $60,000 from his parents but what happened to it is not known. I have already explained why there is no evidence to support payment of the deposit by either party.
I have rejected each of the other contentions.
CONCLUSION
That leaves me to return to the earlier finding that the wife directly or with the assistance of her mother, made the greater financial contribution to the acquisition of the Suburb G property, including its maintenance.
The parties’ marriage was short and they had no children. I proceed on the basis that their non‑financial contributions during that time were equal.
I infer that since separation the wife has made greater non-financial contributions to the upkeep and maintenance of the Suburb G property, simply because she was in occupation. She has the benefit too of residing there and there were tenants. In the absence of much evidence on this consideration, I afford it little weight.
Overall, I consider that the parties’ respective contributions favour the wife as to 55 per cent and the husband 45 per cent.
Neither party adduced any evidence as to their current circumstances. I was informed by counsel for the wife that her medical needs are being met but she submitted that as the wife has no earning capacity and will not regain any (which submission is supported by the evidence of Dr E) and as the husband is a trained professional, albeit he has been working in transport for much of the time since 2015, he has a greater working capacity.
I accept that to be so. It is appropriate that an adjustment of five per cent be made to take into account that differential.
The wife will therefore receive 60 per cent of the proceeds of sale after payment of the mortgage of the Suburb G property and the various credit card debts. On the above figures, leaving aside the costs of sale, the wife will receive $625,500. The husband will receive $417,000. This is a differential of $208,500.
There will be an order for the sale of the Suburb G property with the parties’ credit card debts to be paid off before division of the proceeds, which will then be divided 60 per cent to the wife and 40 per cent to the husband. They will otherwise retain the assets and entitlements they have. This will slightly favour the wife, but the difference is not of great significance.
In the circumstances of this case, I consider these orders to be just and equitable.
I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 9 October 2023
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