LONCAR & LONCAR
[2020] FCCA 2094
•4 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LONCAR & LONCAR | [2020] FCCA 2094 |
| Catchwords: FAMILY LAW – Property – addbacks – Kennon adjustment – 75(2) adjustment – just and equitable – costs. |
| Legislation: Family Law Act 1975 (Cth), ss. 75, 79, 81, 90XE, 90XT, 117 Evidence Act 1995 (NSW), s.177 |
| Cases cited: Stanford v Stanford [2012] HCA 52 |
| Applicant: | MS LONCAR |
| Respondent: | MR LONCAR s |
| File Number: | SYC 3269 of 2016 |
| Judgment of: | Judge Kemp |
| Hearing dates: | 9, 10, 11 & 20 March 2020 |
| Date of Last Submission: | 13 May 2020 |
| Delivered at: | Sydney |
| Delivered on: | 4 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Givney |
| Solicitors for the Applicant: | Maclarens Lawyers |
| Counsel for the Respondent: | Mr Kondich |
| Solicitors for the Respondent: | Shephard & Shephard |
THE COURT ORDERS THAT
The wife shall within 90 days of the date of these orders:
(a)Pay to the husband the sum of $346,493.05 (“the settlement sum”);
(b)Cause the discharge of the mortgage to the C Bank registered on the title to the property at D Street, Suburb A (“the D Street, Suburb A property”); and
(c)By consent, transfer to the husband her interest in the B Timeshare, with the parties to do all things reasonably necessary including signing all documents, to implement that transfer.
Upon the wife’s compliance with order 1 above, the husband shall transfer to the wife his right title and interest in the D Street, Suburb A property.
In the event that the wife fails to comply with orders 1(a) and (b) above, then the parties forthwith do all things and sign all documents reasonably necessary to cause the D Street, Suburb A property to be sold by private treaty at the earliest possible date at a price to be agreed upon between the parties and failing such agreement at a price to be determined by the President of the New South Wales Division of the Australian Property Institute (or any successor of it) or his/her nominee and to disburse the proceeds of the said sale in the following manner and priority:
(a)Payment of agent's commission and advertising expenses and legal expenses of the sale;
(b)Discharge of the mortgage to C Bank;
(c)Payment of costs incurred, if any, in relation to determination of value or selling price; and
(d)The balance then remaining to be divided as to:
(i)74.5 per centum to the wife;
(ii)25.5 per centum to the husband;
In the event the D Street, Suburb A property is not sold by private treaty within a period of 3 months of the implementation of order 3 above, then the parties forthwith do all acts and things necessary including executing all documents reasonably necessary to cause the said property to be sold by public auction at the earliest possible date at a reserve price to be agreed upon between the parties and failing such agreement at a reserve price to be determined by the President of the New South Wales Division of the Australian Property Institute (or any successor of it) or his/her nominee and to disburse the proceeds of the said sale in accordance with order 3.
Pending the wife’s compliance with order 1 (or the sale of the D Street, Suburb A property in accordance with orders 3 and 4) and until the wife ceases occupation of the D Street, Suburb A property, the wife shall pay any mortgage instalments as have presently been determined by C Bank. Upon the wife vacating the D Street, Suburb A property, each of the parties shall be jointly responsible for the payment of the said mortgage.
Within 21 days of today’s date, the parties shall do all things reasonably necessary to divide equally between them the furniture in the D Street, Suburb A property by agreement and in the absence of agreement, the wife shall prepare 2 lists of items of furniture and provide them to the husband within 14 days, further and, thereafter, the husband shall select one (1) list within a further 7 days and arrange for collection of the selected items within 7 days further.
There be a superannuation splitting order affecting the interest of the husband in Super Fund DDD (“the Fund”) in the following terms:
(a)That a base amount of $61,140.50 is allocated, as required by s.90XT(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) to the wife out of the interest held by the husband in the Fund.
(b)That whenever a splittable payment within the meaning of s.90XE of the Act becomes payable to or on behalf of the husband from his interest in the Fund, the trustee shall pay the wife the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and make a corresponding reduction in the entitlement the husband would have had but for these orders.
(c)That this order has effect from the operative time.
(d)That the operative time is from the fourth business day after a correctly certified copy of the orders is received in the mail.
(e)That this order binds the trustee of the Fund.
Otherwise than in orders 1 to 7 above, the husband shall be and is hereby declared to be the sole and absolute owner at law and in equity as against the wife of:
(a)Any motor vehicle (including motorbike) in his possession;
(b)All items of furniture and contents in his possession; and
(c)All savings or monies in his possession, custody or control, other than as stated above.
Otherwise than in the orders 1 to 7 above, the wife shall be and is hereby declared to be the sole and absolute owner at law and in equity as against the husband of:
(a)Any motor vehicle in her possession;
(b)All items of furniture and contents in her possession; and
(c)All savings or monies in her possession, custody or control, other than as stated above.
Should either party fail to sign any document to give effect to these orders, a Registrar of the Federal Circuit Court of Australia upon proof of an affidavit of such failure, is appointed pursuant to s.106A of the Act to execute any required documents on behalf of the defaulting party to give force and effect to these orders and the costs borne as a result of such default, including the preparation of affidavit evidence and legal fees arising from such default, shall be paid by the defaulting party to the non-defaulting party within 7 days of the defaulting party receiving the request for payment from the non-defaulting party.
If any party seeks costs, an appropriate written application may be made within 28 days of today’s date, (supported by any documentary material) to be filed and served within that time period and a copy forwarded to Chambers. The Court will then deal with that matter by way of written submissions, unless the parties wish to be heard orally. If no such application is made within the time period specified, there will be no order as to costs.
The matter is, otherwise, removed from the active pending cases list.
THE COURT NOTES:
The reference in the above orders to the C Bank applies mutatis mutandis to the Westpac Banking Corporation if that last mentioned banking entity has assumed the rights and obligations of the first mentioned banking entity.
IT IS NOTED that publication of this judgment under the pseudonym Loncar & Loncar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3269 of 2016
| MS LONCAR |
Applicant
And
| MR LONCAR |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the applicant wife (“the wife”) for final property orders.
The wife sought orders, as set out in her Amended Initiating Application filed on 22 December 2017 and as further amended by a Minute of Proposed Orders provided on 9 March 2020, to the following effect:
(1)The wife shall within 90 days of the date of these orders:
(a)Pay to the husband the sum of $83,742.00 (“the settlement sum”);
(b)Cause the discharge of the mortgage to the C Bank; and
(c)Transfer to the husband her interest in the B Time-share.
(2)Upon the wife’s compliance with order 1, the husband shall transfer to the wife his right title and interest in the property at D Street, Suburb A (“the D Street, Suburb A property”).
(3)The wife be declared sole and beneficial owner of:
(a)Motor Vehicle 1; and
(b)Superannuation entitlements.
(4)The husband be declared sole and beneficial owner of:
(a)Motorbike;
(b)Motor Vehicle 2; and
(c)Superannuation entitlements.
(5)In the event the wife fails to comply with orders 1(a) and/or 1(b) then the parties shall do all things necessary to sell the D Street, Suburb A property and in respect of such sale the following shall apply:-
(a)The parties shall place the said property in the hands of a licenced auctioneer to sell [it] by way of public auction within 6 weeks of the date of these orders.
(b)In the event the parties cannot agree to the reserve price at auction, then the parties or either of them shall appoint the President for the time being of the Real Estate Institute (NSW Division) or his or her nominee to assess the reserve price at auction and the parties shall be bound by such assessment and equally bear the cost.
(c)Upon sale the proceeds of sale shall be paid as follows:-
(i)In payment of agent’s commission and legal fees occasioned by the sale;
(ii)In discharge of the mortgage to C Bank;
(iii)In payment to the husband the settlement sum and interest from the due date; and
(iv)In payment to the wife of the balance.
(6)Pending the sale referred to in order 5 and until the wife continues occupation of the D Street, Suburb A property the wife shall pay mortgage instalments as has presently been determined by the Westpac Bank (noting that the wife had previously referred to the C Bank).
(7)Upon the wife vacating the D Street, Suburb A property each of the parties shall be jointly responsible for the payment of the mortgage.
The respondent husband (“the husband”), on the other hand, sought final orders in his Further Amended Response filed on 2 September 2019 and as updated by his Minute of Proposed Orders provided at hearing, to the following effect:
(1)That the parties forthwith do all things and sign all documents necessary to cause the D Street, Suburb A property to be sold by private treaty at the earliest possible date at a price to be agreed upon between the parties and failing such agreement at a price to be determined by the President of the Real Estate Institute of New South Wales (or any successor of it) or his/her nominee and to disburse the proceeds of the said sale in the following manner and priority:
(a)Payment of agent's commission and advertising expenses and legal expenses of the sale.
(b)Discharge of the Mortgage to C Bank.
(c)Payment of costs incurred, if any, in relation to determination of value or selling price by the President of the Real Estate Institute of New South Wales or his/her nominee.
(d)The balance then remaining to be divided as to:
(i)60 per centum to the wife;
(ii)40 per centum to the husband;
(2)That in the event the D Street, Suburb A property is not sold by private treaty within a period of 3 months of the date of these orders, then the parties forthwith do all acts and things necessary including executing all documents necessary to cause the property to be sold by public auction at the earliest possible date at a reserve price to be agreed upon between the parties and failing such agreement at a reserve price to be determined by the President of the Real Estate Institute of New South Wales (or any successor of it) or his/her nominee and to disburse the proceeds of the said sale in accordance with order 1.
(3)That within 21 days the parties shall do all things necessary to divide equally between them the furniture in the former matrimonial home by agreement and in the absence of agreement, the wife shall prepare two lists of items of furniture and provide them to the father within 14 days further and thereafter the husband shall select one list within a further 7 days and arrange collection of the selected items within 7 days further.
(4)That within 21 days from the date of these orders the parties shall do all things necessary to sign all documents transfer the wife's interest in the B Time-share to the husband.
(5)That there be a superannuation splitting order affecting the interest of the husband in Super Fund DDD (“the Fund”) in the following terms:
(a)That a base amount of $47,000.00 [amended to $61,140.50 as provided for in the husband’s submissions] is allocated, as required by section 90XT (1) (a) of the Family Law Act 1975 (Cth) (“the Act”) to the wife out of the interest held by the husband in the Fund.
(b)That whenever a splittable payment within the meaning of Section 90 XE of the Act becomes payable to or on behalf of the husband from his interest in the Fund, the trustee shall pay the wife the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, and make a corresponding reduction in the entitlement the husband would have had but for these orders.
(c)That order 3 has effect from the operative time.
(d)That the operative time is from fourth business day after a correctly certified copy of the orders is received in the mail.
(e)That this order binds the trustee of the fund.
(6)That otherwise than in orders 1-5 above, the husband shall be and is hereby declared to be the sole and absolute owner at law and in equity as against the wife:
(a)Any motor vehicle in his possession;
(b)All items of furniture and contents in his possession; and
(c)All savings or monies in his possession, custody or control, other than stated above.
(7)That otherwise than in the orders 1-5 above, the wife shall be and is hereby declared to be the sole and absolute owner at law and in equity as against the husband:
(a)Any motor vehicle in her possession;
(b)All items of furniture and contents in her possession; and
(c)All savings or monies in her possession, custody or control, other than stated above.
(8)Should either party fail to sign any document to give effect to these orders, a Registrar of the Federal Circuit Court of Australia upon proof of an Affidavit of such failure, is appointed pursuant to section 106A of the Act to execute any required documents on behalf of the defaulting party to give force and effect to these orders and the cost borne as a result of such default including the preparation of Affidavit evidence and legal fees arising from such default shall be paid by the defaulting party to the non-defaulting within 7 days of the defaulting party receiving the request for payment from the non-defaulting party.
The parties have resolved issues relating to the parenting of the 4 children of the parties’ marriage namely, W born in 2002, currently, aged 18 years (“W”), X born in 2003, currently, aged 17 years (“X”), Y born in 2004, currently, aged 15 years (“Y”) and Z born in 2010, currently, aged 9 years (“Z”) (collectively referred to as “the children”).
The wife relies, subject to all proper claims as to admissibility and after formal objections were taken, on the following:
a)Her Affidavit sworn and filed on 9 October 2019;
b)Her Financial Statement sworn and filed on 6 September 2019;
c)The Affidavit of Mr D (“Mr D”), the wife’s father, sworn on 2 September 2019 and filed on 5 September 2019; and
d)The affidavit of Ms E (“Ms E”), the wife’s mother, sworn on 2 September 2019 and filed on 5 September 2019.
Mr D and Ms E being collectively described as “the wife’s parents”.The wife’s parents were cross-examined.
The husband relies, subject to all proper claims as to admissibility and after formal objections were taken, on the following:
a)His Affidavit sworn and filed on 2 September 2019;
b)His Financial Statement sworn and filed on 2 September 2019;
c)The Affidavit of Mr F (“Mr F”), the husband’s father, sworn and filed on 2 September 2019; and
d)The Affidavit of Ms G (“Ms G”), the husband’s mother, sworn and filed on 2 September 2019.
Mr F and Ms G being collectively described as “the husband’s parents”.The husband’s parents were cross-examined.
The following documents were tendered as exhibits in the proceedings:
Exhibit No
Document
Tendered by
A
Bundle of 163 pages, being the annexures to the wife’s affidavit
Wife
B
Document marked with a yellow sticker being a record from the H Medical Practice 11 August 2009
Wife
C
Two (2) yellow stickered documents from the documents produced by J Medical Practice for 2 consultations
Wife
D
NSW Police report criminal history pages 1, 2 and 3 (as marked by yellow tabs) of the bail report for the criminal history of the husband
Wife
E
Purple folder consisting of Westpac Banking Corporation (“Westpac”) banking statements in respect of accounts for the children
Wife
F
All material in Aqua/Green folder
Wife
G
Financial Statement
Wife
H
Bundle of bank statements for the account in the name of Y being account number ending “...54”
Wife
J
Documents from Westpac
Wife
K
Two (2) documents from Westpac addressed to Y
Wife
1
Bank statements from a Commonwealth Bank Account
Husband
2
Taxation returns for the wife for the years ending 2013, 2014 and 2015
Husband
3
Bank account statements number 50 (pages 1 and 2 only noting that pages 3, 4 & 5 are missing) for an account with C Bank in the name of the wife and the husband
Husband
4
Black folder of C Bank documents
Husband
5
Documents regarding mortgage
Husband
6
Documents regarding dental surgery in relation to the husband
Husband
7
Documents regarding dental surgery in relation to X, totalling $2,200.00
Husband
8
Notice of Income Tax Assessment for the year ended 2016
Husband
Court 1
Valuation dated 6 March 2020 of $1,360,00.00 for the D Street, Suburb A property
Joint
Court 2
Joint balance sheet
Joint
Court 2A
Updated joint balance sheet
Joint
Court 2B
Further updated joint balance sheet
Joint
Mr K, valuer, was examined and his oral evidence was entirely consistent with that of his written report for the valuation of the D Street, Suburb A property (being Exhibit “Court 1”). The Court accepts that evidence as to value which forms the basis for the parties’ agreement as to values incorporated within the further updated joint balance sheet (being Exhibit “Court 2B”).
Mr Givney of Counsel appeared for the wife and Mr Kondich of Counsel appeared for the husband.
At the conclusion of the hearing on 20 March 2020, the Court directed the parties provide their written submissions in accordance with an agreed timetable and to provide to the Court an agreed updated balance sheet. That updated joint balance sheet was received on 23 March 2020 and was made Exhibit “Court 2A”, as referred to above. That balance sheet, however, still showed a disagreement between the parties as to the balance of their mortgage indebtedness. The Court raised this issue with the parties and then received a further updated joint balance sheet on 24 March 2020 resolving that issue. That further updated joint balance sheet was made Exhibit “Court 2B”.
The submission timetable provided for the wife’s submissions to be provided by 10 April 2020. The wife’s submissions were received by the Court on 14 April 2020. The husband’s submissions in response were to be provided by 1 May 2020 but were received on 5 May 2020. The wife’s submissions in reply were to be provided by 8 May 2020 but were, in fact, received on 13 May 2020.
Background facts
The following are the background facts:
a)The wife was born in 1970 and she is, currently, 50 years of age.
b)The husband was born in 1974 and he is, currently, 45 years of age.
c)The parties were married in 2001 and separated under the one roof at the D Street, Suburb A property in September 2012. The husband vacated the said property between 6 and 10 April 2015.
d)There are 4 children of the marriage, as referred to in paragraph 4, above.
e)In 1995, the wife had a conversation with her mother, Ms E, wherein Ms E said words to the following effect: “We have saved enough money for a deposit. We are going to find a house to buy and rent it out so we can get ahead.” The wife’s father, Mr D and her brother, “Mr L”, then commenced looking for properties in the Region M area of NSW to purchase.
f)In 1996, the wife’s parents acquired a property at N Street, Suburb O (“the N Street, Suburb O property”) for the sum of approximately $120,000.00 purchased in the names of the wife’s parents, the wife and the wife’s sister, “Ms P”. At the time of the purchase, Ms E said to the wife words to the following effect: “I need you and Ms P on the contract or the bank won’t lend us money. It is because you’re both working. You won’t have to make any payments for it.” Ms E confirmed in her evidence that because the wife’s parent’s wages were low they needed their daughters to provide a greater financial capacity for the bank to lend on the purchase. The wife said that she then travelled to the Country Q, Country R and Country S and provided no monies towards the purchase. The N Street, Suburb O property was rented out. The wife maintained that she made no financial contribution towards it. The wife’s mother, however, gave evidence that her daughters did assist with mortgage payments until the property’s sale. There was no quantification of that assistance.
g)In 1998, the wife’s parents acquired a property at T Street, Suburb U (“the T Street, Suburb U property”) for the sum of approximately $340,000.00 purchased in the name of the wife’s parents, the wife (although Mr D thought that his son, “Mr L” and not the wife had gone onto its title when it was purchased; see however subparagraph (z) below) and her sister, “Ms P”. At the time of purchase, Ms E said to the wife words to the following effect: “Your Dad and I have found another property to buy. We want you and Ms P to put your names on it so we can get the loan. You’ll have to sign the mortgage again. You won’t have to pay anything”. The wife then signed mortgage documents. The wife commenced to live at the T Street, Suburb U property. The wife maintained that she made no financial contribution towards this property. This was confirmed by Ms E. At that time, the wife was working for Employer V. The wife said that she travelled to various destinations prior to her wedding to the husband including Country AA, Country BB, Melbourne, Town CC, Qld and the Region DD, Qld and that she provided her mother with money for some food expenses.
h)Shortly prior to the parties’ marriage, the wife said she had a conversation with the husband wherein he said to her words to the following effect:
“My parents have built a home in City EE in Country BB. It is a 3 storey building and each level is self-contained. My parents planned that my sister would live on one floor with her family. I would live on one floor with my family and my parents would live on the other floor. Part of the house is being rented but the house is rented to family friends.”
The wife said that the parties later travelled to Country BB and she saw the property in City EE (“the Country BB property”).
i)In late 2000, the wife’s parents caused the sale of the N Street, Suburb O property and Ms E said to the wife: “I’ve sold the property so we can pay for your wedding”. Mr D confirmed that when the wife got married, this property was sold. The wife’s parents then paid $35,000.00 towards the parties’ wedding expenses and the husband paid $8,000.00. The wife’s parents also gifted the wife $15,000.00 but which was paid to the husband and the wife shortly after the parties’ wedding.
j)In 2001, the parties married and commenced living in the D Street, Suburb A property together with the husband’s parents and his sister, “Ms FF”. At this time, the wife was employed as a administrative officer at Employer GG and the husband was employed as a tradesman.
k)At the time of the parties’ marriage, the wife said she had the following items of property:
i)A registered interest as a joint tenant with the wife’s parents and the wife’s sister, “Ms P”, in the T Street, Suburb U property;
ii)A motor vehicle;
iii)Some savings; and
iv)An interest in a superannuation fund.
l)At the time of the parties’ marriage, the wife said the husband had the following items of property:
i)A 25% interest in the D Street, Suburb A property as owned by the husband, the husband’s parents and the husband’s sister, “Ms FF”;
ii)A motor vehicle; and
iii)The husband’s tools of trade.
m)In 2001, on the wife’s version, the parties purchased the B Timeshare for $10,000.00. The husband said that this was purchased in 2007. Nothing turns on that difference.
n)In 2002, the parties purchased a property at HH Street, Suburb JJ (“the HH Street, Suburb JJ property”) for the sum of $215,000.00. The wife said that the husband’s parents paid the full purchase price. The wife said that the wife’s mother provided the parties with cooked meals every week and also delivered food to their household on a not less than monthly basis.
o)In 2002, W was born of the parties’ relationship. At that time, the wife became eligible to receive the Family Allowance. The wife said that the husband caused this allowance to be paid into an account in his name which she did not have access to.
p)In mid 2002, the husband’s parents and his sister vacated the D Street, Suburb A property and moved into the HH Street, Suburb JJ property. The husband and the wife remained living in the D Street, Suburb A property.
q)In 2002, the husband said that he took up a second job, as a labourer, to supplement the family’s income.
r)In 2003, the wife said that the husband threw a laundry basket at her which struck her in the face. She conceded that she never called the Police about this incident.
s)In 2003, the wife ceased work.
t)In 2003, X was born of the parties’ relationship.
u)In 2003, the parties acquired the D Street, Suburb A property for a purchase price of between $356,250.00 (on the wife’s account) and $380,000.00 (on the husband’s account). The transfer evidenced a purchase price of $356,250.00 which together with stamp duty paid of $11,523.00, totalled $367,773.00. See Exhibit “A” at page 75. The parties financed these acquisition costs by way of a loan secured under a mortgage from C Bank. In mid 2003, the opening balance on the parties’ loan with C Bank under account number ...91 was $369,041.56 against an approved credit limit of $380,000.00, which meant that the parties had available credit of $10,873.34 (see Exhibit “4”). As the opening balance was reduced, the parties’ available credit, consequently, increased. The husband said that renovations were carried out on that property financed through a line of credit with that same bank (see subparagraph (ee) below). The D Street, Suburb A property was then rented out.
v)In 2004, the wife returned to work. The wife was pregnant with Y and asserted that the husband picked up a highchair and threw it at her. The wife said she observed W and X standing in the room and when the highchair smashed into the wall, leaving a dent, the children were shocked and cried. The wife reported this incident to the Police.
w)In mid 2004, the Police recorded an argument between the parties, in event number ...48, however no offence of domestic violence was proceeded with.
x)In late 2004, the husband ceased working as a tradesman and began full-time employment as a labourer.
y)In 2004, Y was born of the parties’ relationship.
z)In 2005, the wife said she had a conversation with Ms E who said to her words to the following effect: “I want you to transfer the house [meaning the T Street, Suburb U property] to Mr L. You haven’t paid anything and Mr L will take over from now on.”
aa)In 2005, the parties transferred the HH Street, Suburb JJ property into the names of the husband’s parents.
bb)In 2005, the husband said that he worked on the weekends as a tradesman and that he also took on a weekend newspaper delivery run which he operated until 2007. At this time, the wife said that the parties had a conversation which included words to the following effect:
Wife: “Could you go and get X.”
Husband: “You lazy shit, you go get him.”
cc)In 2006, the wife arranged for the Family Allowance, referred to in subparagraph (o), above, to be then paid into an account in her sole name.
dd)In 2006, the wife transferred her interest in the T Street, Suburb U property to her brother, Mr L, as referred to in subparagraph (z), above. The wife did not receive any monies with respect to this transfer.
ee)In around mid 2006, the parties appear to have transferred the home loan balance of about $320,000.00 then on account 119385091 to a new joint account number ...51 which had a $320,000.00 approved credit limit on it and then retained a separate line of credit of $60,000.00 on account number ...91 (see Exhibit “4”).
ff)In 2006, the wife commenced part-time work as an Administration Officer with Employer KK and continued in that employment until 2010.
gg)In around mid 2006, the husband was in full time employment, as a labourer, with the Employer LL.
hh)In about 2006, being as the wife said “a few years” after the line of credit with C Bank became available, as referred to in subparagraph (u) above, the husband removed the wife’s access card and destroyed it. The wife said that she then ceased to have practical access to the line of credit with C Bank.
ii)In around 2006, the husband commenced to drive the wife to the shops and supervised the purchase of household items. The wife said that the husband refused her requests to buy necessities for the children, including hair bands, dried dates and snacks.
jj)In 2007, the wife said that the parties had a discussion which included words to the following effect:
Wife: “The kids are getting noisy. Could you help me get them upstairs?”
Husband: “I’m working. Listen you dirty piece of shit. Get a stick, hit them and make them go upstairs”.
kk)In 2007, the husband commenced to operate a weekday newspaper run which ran until about 2012.
ll)In 2008, the wife said that she observed X riding his bike in the driveway and complained to the husband that he was not watching X. The husband then used his belt to whip X. The husband, in his oral evidence, denied doing so but said, in his affidavit, that he did not remember hitting the children with a belt or whipping them. The wife said she had shielded X from the husband’s belt and was hit, herself, 2 or 3 times with the belt, leaving a mark. She conceded that she did not take a photograph of the mark and was unsure whether she reported this incident to the Police. X then started to cry and the husband’s parents, who were present, screamed at the husband. The wife, further, stated that W and Y were visibly upset. The wife said that X’s teacher observed a welt on his face and reported that observation to the then Department of Community Services. The husband said that the wife’s decision, at that time, to be a “stay at home” mother was putting a strain on their marriage.
mm)In 2009, the wife commenced work on a casual basis with a supermarket doing “night filling”. At this time, the husband said to the wife words to the following effect: “Mum and Dad are transferring the property [meaning the Country BB property] to me and Ms FF. We have to go to a solicitor to sign documents”. The wife said she, subsequently, accompanied the husband to a solicitor in Suburb MM and observed that the husband spoke to the solicitor in Country BB language and then signed documents. The husband agreed that he had acquired a half share with his sister (who held the other half share) in the Country BB property in around 2010 when, he said, his father had divested himself of any interest in that property.
nn)In 2009, the husband went on holiday to City NN for 2 weeks. During this time, the wife said that she was unable to work because the husband was away.
oo)In 2009, the wife said that the husband struck her in the eye with a clenched fist. She said she recalled a fist hitting her in the eye, seeing a flash of light, feeling pain and being distressed. The wife observed bruising around her eye. The wife also said that the husband hit her in the side of the head and perforated her ear drum. Exhibit “B”, being a medical note provided by Dr OO evidences the wife having a perforated ear drum. The wife said that she did not report this incident to the Police.
pp)In about mid 2009, the parties changed their facilities at the C Bank and a loan advance of $294,900.00 (plus $100.00 settlement fee) was created in account number ...00 which was then used to pay out the balance owing on account number ...51 of approximately $294,900.00, as referred to in (ee) above. See Exhibit “4”.
qq)In 2010, the wife became pregnant with Z which the husband asserted had been contrary to his wishes. Before Z was born the parties travelled to Melbourne. The wife said that they argued about the seat restraints for the children and the husband then drove in a dangerous manner swerving the car from side to side and speeding.
rr)During 2010, the wife said that she had difficulty obtaining monies from the husband to purchase petrol. The wife said that, at various times, she had said to the husband words to the following effect: “Can you give me $20.00 for petrol?” She said that the husband, on some occasions, laughed but on most occasions said words to the following effect: “Get off your fat arse and get a job”; and: “I’m not giving you money so you can waste it.” On the 4 or 5 times per year that the husband did provide her with $20.00 she said that he said to her words to the following effect: “You can’t manage money. I hope you appreciate how hard I fucking work for you”.
ss)In mid 2010, the husband suffered injuries in a motor vehicle accident while riding his motorbike to work and was admitted to hospital.
tt)In mid 2010, the husband was discharged from hospital but was then readmitted and discharged again in mid 2010. The husband said that, around this time, the wife had stomped on his foot while he was recovering from his injuries. The wife said she attended to the husband’s care. The husband said he had 5 surgeries and had made a claim for damages with respect to his injuries. The wife said that, after his accident, she had driven the husband to a neurologist and during that drive, the husband had become angry and had punched her in the side of her head. The wife said the husband was shouting at her, calling her names and then smashed the rear vision mirror, broke it off and commenced to pull at the steering wheel whilst she was driving the car. The wife said that, at that point, because the husband was in such a rage she believed she was going to die.
uu)In 2010, Z was born of the parties’ relationship.
vv)In late 2010, the husband recommenced work full-time.
ww)In late 2010, the husband was again admitted to hospital and was discharged the following day.
xx)At the end of 2010, the parties arranged for a holiday to the Region DD, Qld. On the day prior to leaving for that holiday, the wife found $8.00 in the glovebox of the husband’s car and took the money. The husband learnt of this and cancelled the parties’ holiday.
yy)In 2011, the wife said that when she had Z, then aged about 6 months, in her arms, the husband became angry and pushed her against a wall. The wife said the husband then grabbed her head and with some force pushed her head several times into a picture hanging on the wall. The wife said that she felt afraid for her life and started to scream. The wife heard the children crying and went to comfort them. The wife said that the husband then entered the room where the wife was with the children comforting them, grabbed her by her hair and pulled her off the bed and then dragged her across the room. The wife said that W shrieked and cried. The wife said that she suffered painful welts to her head as a result of the husband’s behaviour during this incident.
zz)In mid 2012, the husband travelled to Country BB for a holiday and spent about 6 weeks there.
aaa)In September 2012, the husband said that the parties’ relationship had, irretrievably, broken down.
bbb)In October 2012, the wife said that the parties had then separated under the same roof at the D Street, Suburb A property.
ccc)In 2012, the wife said that W had stayed overnight at the wife’s parents’ home and when the parties went to collect her, the husband who was driving the car slapped the wife in her face with the back of his hand which caused her nose to bleed. The wife said that she hid the fact that she was bleeding from the children. The husband then suggested that the children go on an activity with him and the wife said that she also wanted to go on that activity. The husband told the wife that she would have to go home to get changed because there was blood on her clothes.
ddd)In late 2012, the wife said that she was unable to work because the husband was away.
eee)In 2013, the wife said that while W and Y were estranged from the husband, the parties agreed for the husband to have the care of X and Z each Saturday. The wife said that she observed the husband to be then purchasing items for X and Z which included shoes, clothes, tennis racquets, PlayStation, scooters and a mobile phone. The husband also took them to the movies, bowling, tennis and soccer to the exclusion of the other 2 children.
fff)During 2013, the wife said that the husband had hit her with a metal steel knife sharpener which caused bruises to her tendon. She said she felt excruciating pain which radiated up her arm and felt fearful that the husband was going to kill her.
ggg)In mid 2013, the parties had argued about whether the children would go out for a drive with the husband at 8.00pm. The wife telephoned the husband’s mother and the husband then shouted at her. The wife said that the husband threatened her that if she didn’t get off the telephone he would throw a computer tablet at her. The wife said that she did not terminate the call and the husband then pulled the phone line from the wall socket. The wife observed that W was crying and Y and X were distressed. The wife said that she was so distressed she was unable to go to work that night.
hhh)In mid 2013, the wife said that she spat on the husband’s head after he had said to her that it was disgusting how she spits when she talks. The husband was then sitting on a tiled floor cleaning the grout with a razorblade. He punched the wife in the back of her knee which caused her knee to give way. The wife then turned around and again spat on the husband. The husband leaned towards her and slashed the wife’s right elbow with the razorblade causing her arm to bleed. The wife then used her left hand to hold her cut arm and ran to the kitchen to get a tea towel. She then advised the husband that she needed to go to the Doctor and the husband asked the children: “Who wants to go to SS?” The husband agreed that he had asked the children if they wanted to go to SS. The wife received medical treatment. She had 7 stitches and suffered some scarring. The wife was unable to work for one to 2 weeks because she could not lift and pack shelves as a result of her injury. This event was recorded by the Police as event number ...80. The wife’s injuries are supported by an expert certificate provided by Dr PP dated 20 August 2013 provided to the NSW Police pursuant to s.177 of the Evidence Act 1995 (NSW), being part of the documents produced in Exhibit “C”.
iii)In mid 2013, the Police on the husband’s application applied for an Apprehended Domestic Violence Order (“ADVO”) against the wife which was made returnable in the Local Court of NSW at Suburb QQ in mid 2013.
jjj)In mid 2013, the wife attended C Bank and withdrew $700.00 to buy groceries and essentials. Soon afterwards, the parties had a conversation in words to the following effect:
Husband: “You have taken out $700.00 from the account.”
Wife: “I kept telling you I had no money to buy groceries, how do you think we eat? You can’t keep depending on my parents.”
Husband: “Well, I’ll take your tablet until you pay the money back.”
The husband then removed the computer tablet from the wife. At this time, the wife was not working due to her injuries referred to in subparagraph (hhh) above. The wife then attended the Suburb RR Police Station and complained about the husband’s conduct towards her. The Police then telephoned the husband who returned the wife’s computer tablet to her.
kkk)In mid 2013, the NSW Police withdrew the application for an ADVO referred to in subparagraph (iii) above.
lll)In mid 2013, after driving the children to school, the wife asked the husband twice for money to buy laundry powder. The wife said the husband ignored her but then walked towards her and backed her into the corner of the room and then grabbed her face with his hand and squeezed her face and jaw area. The wife said she felt pain. The wife said that, while squeezing her face, the husband said words to the effect of: “I am going to break your mouth and your jaw, don’t put me down in the front of the kids”. The wife reported this incident to the wife’s parents and to the Police. This event was recorded by the Police as event number ...96. The Police obtained a provisional ADVO in mid 2013 against the husband for the protection of the wife. The husband was also charged with assault and assault occasioning actual bodily harm.
mmm)In mid 2013, the Local Court of NSW at Suburb QQ made an interim ADVO against the husband for the protection of the wife.
nnn)In mid 2013, the wife said that she was using a computer and the husband removed its Wi-Fi attachment so that she was unable to use it. The parties argued and during this argument the husband called the wife a “pig” and said words to the effect of: “You won’t learn anything until you get a bullet in your head.”
ooo)In mid 2013, the husband’s claim with the Motor Accidents Authority included damages of $247,469.11 together with costs of $25,347.04.
ppp)In late 2013, a final ADVO was made by the Local Court of NSW at Suburb QQ against the husband protecting the wife for a period of 12 months. The husband, after pleading guilty, was convicted of assault occasioning actual bodily harm and received a good behaviour bond. The wife said that after the husband was convicted of assaulting her he said to her words to the effect of: “I’m glad I went to the trouble of getting a gun”. The wife said that she reported this statement to the husband’s Probation and Parole Officer as she felt threatened by him. At some time after the ADVO was made against the husband the wife said that the parties had a conversation using words to the following effect:
Husband: “You should watch yourself”.
Wife: “You can’t threaten me anymore.”
Husband: “I can threaten you and if you keep talking the way you do it will be too late for you.”
qqq)In late 2013, the Police record an argument between the parties in event number ...73 however no offence of domestic violence was proceeded with.
rrr)During 2013, the wife said that she withdrew $400.00 from the line of credit with the C Bank to pay for her car registration. The wife said that the parties had a conversation using words to the following effect:
Husband: “I know you withdrew $400.00 from the bank. You stupid fucking bitch.”
Wife: “I had to pay for the car registration, how do you think I get the kids around everywhere.”
The wife said that the husband then raised above his shoulder a lump of wood, approximately 1 metre in length, which he had taken from the garage. The wife turned around and the husband hit her with the lump of wood on her shoulder. The wife said she felt pain, cried and felt humiliated. The wife observed that bruises developed on her shoulder and she took pictures of them. The wife then attended the Suburb RR Police Station and showed the Domestic Violence Liaison Officer there the photographs of her bruising. The husband conceded calling the wife, at times, a “bitch” and a “fat ass” and “lazy”. He was unsure whether he had called her a “lazy shit”.
sss)In late 2013, the husband received $140,000.00 as damages arising from his motor accident, referred to in subparagraph (ss), above. It is to be noted a portion of the lump sum payment paid to the husband was in respect of his diminished future earning capacity. The wife said that $100,000.00 of these monies was paid into the parties’ joint account. In late 2013, the C Bank account statement (page 140) in Exhibit “F” shows the crediting by way of a cheque deposit of $113,117.35 and the crediting of $1,902.11 from Employer LL account, totalling $115,019.46 into account number ...91 which then had a debit balance of $34,681.68 taking that account into credit in the sum of $80,337.58.
ttt)In late 2013, the sum of $5,000.00 in cash was withdrawn and $70,000.00 was transferred to an undisclosed account from account number ...91. Both of these sums were then paid on the same day into account number ...00 reducing the then mortgage debt from $244,614.11 down to $169,614.11. A further loan repayment of $25,000.00 was made in late 2013 which reduced the then mortgage debt down to $143,301.46. It appears likely that the sum of $25,000.00 together with the sum of $115,019.46 which totalled $140,019.46 were the damages received by the husband, as referred to above.
uuu)In late 2013, the wife said that the husband commenced withdrawing monies which totalled $188,355.00 by early 2015 from the parties’ then mortgage account which included the following, larger, withdrawal sums on the dates specified:
2013 to 2014 - $18,700.00
mid 2014 - $2,200.00
mid 2014 - $4,815.00
late 2014 - $10,500.00
late 2014 - $22,000.00
late 2014 - $6,500.00
late 2014 - $28,000.00
late 2014 - $27,000.00
early 2015 $30,000.00
early 2015 $30,000.00
Totalling $179,715.00
The husband agreed that he had withdrawn the above funds but said that he had used the $10,500.00 withdrawn in late 2014 to pay out the lease on his motor vehicle and had then deposited in to the account in late 2014 the sum of $6,500.00 as the proceeds of the sale of his motor vehicle. The husband said that he had also returned the sum of $68,000.00 in late 2014 (which the wife accepted) as he did not vacate the D Street, Suburb A property as he had planned to do. The husband said that he used the sums of $18,700.00 and $2,200.00 as referred to above for the purchase of materials and services for the conversion of the pantry area in the D Street, Suburb A property to a second bathroom and for guttering for the D Street, Suburb A property, respectively. The husband said that he had used the $4,815.00 withdrawal to purchase airline tickets to Country BB and to provide monies for a holiday. The husband said that he repaid his father $35,000.00 for a loan from him in 2006 and had used the balance of funds for expenses including mortgage payments, Z’s sports and hobby lessons, dental work and clothing for the children.
vvv)During 2013, the husband paid the private health insurance for the children and himself which excluded the wife from its cover.
www)In 2014, the wife commenced working day shifts at a supermarket. The husband was then employed as a tradesman.
xxx)In early 2014, the parties attended the NSW Civil and Administrative Tribunal. In early 2014, the said Tribunal delivered its findings which permitted the husband to continue to work as a labourer.
yyy)In early 2014, Y advised the wife that the father had hit him in the eye with a belt.
zzz)In mid 2014, the husband travelled on his own to Country BB on holiday for a little under 6 weeks. While the husband was in Country BB, the wife said she withdrew $960.00 from the parties’ line of credit to purchase a computer for the children. The wife said the husband then telephoned her from Country BB and said words to the following effect: “You fucking bitch, put the money back into the account”. During the time the husband was away, the wife said she was unable to work.
aaaa)In late 2014, the wife said that as she was strapping Z into the car and about to collect the children from school, the husband walked up to the car and said words to the following effect: “I will put you 6 foot under if you touch the fucking house. You can only hide for so long.” The wife said that she felt fearful as a result of the husband’s threat.
bbbb)In early 2015, the Police record an argument between the parties in event number ...79, however no offence of domestic violence was proceeded with.
cccc)In or about early 2015, the wife said that the husband informed her that his sister was taking her name off the electricity and gas accounts for the D Street, Suburb A property which had been in her name for a number of years and told her that the power would be cut off “unless [she] can do something about it”. The wife said that she felt distressed and started a separate account for those utilities.
dddd)In 2015, the Police record an argument between the parties in event number ...54, however no offence of domestic violence was proceeded with.
eeee)In 2015, the wife became concerned about the booster seat not being properly anchored in the parties’ car and the parties argued. The wife said that the husband said to her words to the following effect: “The way I used to hit you before I’m going to hit you again and this time I’m going to kill you”. The wife said Z looked frightened. The wife said that she felt the husband’s arm around her neck and he commenced to choke her. She said her head tilted backwards and she looked up at the sky. She felt pain and feared that she was going to die. The wife said she called out to a neighbour for help and the husband then let go of her neck. The wife said she called the Police and went to the Doctor. The Police attended. The incident was given event number ...59 and the husband was charged with assault and the Police obtained a provisional ADVO against the husband for the wife’s protection. The wife’s evidence as to the husband choking her was supported by the medical records of Dr TT dated 20 February 2015 which record that the wife had suffered pain as a result of her neck being pulled by the husband. See Exhibit “C”.
ffff)In 2015, the Local Court of NSW at Suburb UU made an interim ADVO against the husband for the wife’s protection.
gggg)During 2015, Y told the husband to: “Suck my dick”. The wife said that the husband then mocked the child. The wife removed W and Y into their bedroom and closed the door. The wife said that the husband then pushed the door open and said to the children that he had “Sucked [her] on her parent’s lounge” and had “Fucked her on her sisters bed” and that she was a “murderer” and that the wife had “killed your brother or sister”. The wife said that the husband’s statements upset her and the children and that Y stated that he just wanted to die.
hhhh)During 2015, on another occasion, the wife said that when the husband found money missing from his wallet he accused Y of taking it. He swore at Y and W defended Y and then slapped the husband. The husband told W: “You shouldn’t have been born”.
iiii)In 2015, the wife was at home cooking when the smoke alarm sounded. The wife then used the husband’s speakers to keep the oven door shut. The husband grabbed the speakers and the wife tried to stop him. The husband shoved the wife causing her to lose balance. The wife called the Police and the Police came later that night. The Police sought to arrest the husband. The husband yelled at the Police: “Kill me. Shoot me.” The Police then restrained the husband. The wife said she saw the husband’s head jerk and she believed he was showing signs of having a fit. The Police called a paramedic and the husband was taken to hospital. The Police record is in event number ...62. The husband was, subsequently, charged with assault and breach of ADVO.
jjjj)In 2015, the Local Court of NSW at Suburb UU made a final ADVO against the husband for the wife’s protection for a period of 12 months.
kkkk)Following the husband vacating the D Street, Suburb A property in April 2015, the wife received calls and complaints from X’s teacher and members of staff at his school due to X’s behaviour there. The wife then attempted to discipline X by confiscating his mobile phone.
llll)From April 2015, when the husband vacated the D Street, Suburb A property until April 2016, the husband paid mortgage payments of approximately $920.00 per month and home insurance of approximately $85.00 per month.
mmmm)In 2015, the husband pleaded guilty to the charge of assault occasioning actual bodily harm and was placed on a good behaviour bond for 2 years and was sentenced to 75 hours community service. The charge of common assault was dismissed. The action for breach of ADVO was dismissed.
nnnn)During 2015/16, the husband said that he transferred, at no cost to himself or his mother, his half share in the Country BB property to his mother.
oooo)In 2015, the wife received $5,415.00 in terms of her victim’s rights award.
pppp)In 2016, the children commenced attending family therapy.
qqqq)In 2016, the husband ceased making mortgage payments and home insurance payments and applied for a child support assessment. At this time, the wife commenced paying mortgage instalments of approximately $960.00 per month.
rrrr)On 1 May 2016, the husband said that because of his legal costs he was unable to meet the entire mortgage costs.
ssss)On 3 May 2016, the husband’s solicitors wrote to the wife’s solicitors requesting that the D Street, Suburb A property be sold.
tttt)On 23 May 2016, the wife asserted that both W and Y refused to see the husband. The wife also asserted that she had observed X swearing and mocking W and Y.
uuuu)On 28 May 2016, the husband attended the D Street, Suburb A property to collect Z and was advised that she was not well. The wife observed the husband recording the conversation.
vvvv)On 4 June 2016, the husband attended the D Street, Suburb A property and the wife again advised him that Z was not well. The husband then called the wife: “a bitch”.
wwww)On 30 June 2016, the husband paid $1,771.13 by way of child support to the wife for the year ending that date.
xxxx)In 2016, the husband was involved in an accident while at work for the Employer LL. At this time, the husband’s child support payments were reduced to between $35.00 and $190.00 per month. The wife was no longer able to make the mortgage payments on the D Street, Suburb A property. The husband then brought an application to sell the D Street, Suburb A property.
yyyy)On 3 July 2016, the husband attended the D Street, Suburb A property and entered the home there. The husband had purchased X a pair of Nike shoes and Z a board game.
zzzz)On 7 July 2016, the wife’s solicitors wrote to the husband’s solicitors regarding the husband’s attendance at the D Street, Suburb A property. Despite this, the husband continued to attend there.
aaaaa)On 13 July 2016, the wife attended the Suburb VV Police Station and expressed concerns about X’s association with a person known as “Mr WW”. The Police spoke to X and counselled him.
bbbbb)On 26 July 2016, the Court made, inter alia, the following orders:
5 (d) The husband have time with the children as follows:-
(i)With X from 7.30am until 6.00pm each Saturday; and
(ii)With Z as agreed in writing between the parties’ legal representatives.
(e)Subject to the husband paying child support as assessed from time to time, the wife shall pay the mortgage instalments commencing on the next monthly payment.
(f) The husband shall, within 14 days, provide to the wife’s solicitors the following:
(i) Copies of any medical reports the husband has received in relation to his recent accident whilst at work.
(ii) The names and addresses of any health professionals seen by the husband since the accident.
(iii) The name of the hospital or hospitals to which the husband attended following the accident.
(iv) The address of the Country BB property.
6Each party is to retain X’s phone when the child is living with that party to be returned to the child to enable the child to telephone the other parent at times as are agreed between the parties and/or their legal representatives.
ccccc)Following the orders referred to above, the husband said that he had X in his care each Saturday and that he saw Z for 5 minutes each week.
ddddd)In 2016, being Z’s birthday, the husband attended her school and came into her class room.
eeeee)On 10 October 2016, the new school term commenced. The following day, the wife was advised by the school that they had considered calling the Police due to an incident involving X. The wife’s solicitors then wrote to the husband’s solicitors requesting, inter alia, that therapeutic assistance be obtained for X.
fffff)On 18 October 2016, Z advised the wife that the husband had attended school and given her lollies and chocolates.
ggggg)On 21 October 2016, the wife was contacted by the school and was advised that X had pushed a boy’s head into a wall.
hhhhh)On 26 October 2016, the wife asserted that the husband had a preference for Z and X over the other 2 children.
iiiii)On 3 November 2016, the Court made orders, inter alia, that the husband contact Ms XX, a registered psychologist, at YY Counselling for the purposes of engaging in therapy.
jjjjj)In early 2017, the husband registered 2 business names, being ZZ and AAA. He also sold a Motor Vehicle 3 for $5,000.00 and purchased a second-hand Motor Vehicle 4. The husband also purchased an Motor Vehicle 2 for $27,000.00, obtaining finance from C Bank for that sum. The husband also obtained a loan from BBB Company in the sum of $1,000.00 to purchase tools.
kkkkk)In 2017, the husband said that he received sick pay, annual leave pay and long service leave and that he used these monies to support his day to day living expenses and to pay his legal fees.
lllll)On 30 June 2017, the husband had paid $8,762.49 by way of child support to the wife for the year ending that date.
mmmmm)In September 2017, the wife said that she had observed that W’s school work had deteriorated.
nnnnn)In December 2017, the wife said that she had observed that X’s behaviour had, significantly, improved.
ooooo)During 2017, the husband purchased X a motor vehicle from X’s savings.
ppppp)During 2017, the husband said that his relationship with W had become “better”.
qqqqq)In 2018, the husband resigned from the Employer LL. At this time, the wife said that she had observed that W had developed anger issues at home and behavioural issues at school.
rrrrr)In 2018, the husband bought W a mobile phone for her birthday. Following this, the wife became aware that W was participating with Tinder (a dating site) and sought assistance from the Police Youth Liaison Officer at Suburb RR.
sssss)During 2018, the wife said that W informed her that she was attending a party and that the husband was taking her. W said to the wife: “Don’t be a hypocrite Dad’s told me about you”; and: “I know what you did when you were younger when you snuck out of the house to see him”.
ttttt)During 2018, the wife said that she had observed that the husband was carrying out building works and repairs to a property immediately across the road from the D Street, Suburb A property.
uuuuu)In April 2018, the husband asserted that he had received Council Rate Notices for the D Street, Suburb A property which indicated that the rates were then in arrears and that he made arrangements to pay them by instalments.
vvvvv)On 30 June 2018, the husband had paid $4,994.18 by way of child support to the wife for the year ending that date.
wwwww)Since January 2019, the husband said that he was seeing Z every second Friday and on occasions additionally once a week either before or after school on the school grounds.
xxxxx)On 3 January 2019, the wife said that she arrived home from work in her motor vehicle and observed the husband’s car in the driveway of the D Street, Suburb A property. The wife then sounded the horn of her car and the parties argued. The wife said that the husband said to her words to the following effect: “You are lucky you are still breathing… You are lucky I’m letting you breathe”. The wife then said that she was going to call the Police. The wife said that she was distressed and her body was shaking as a result of this incident.
yyyyy)On 4 January 2019, the wife attended the Suburb CCC Police Station and applied for and obtained an ADVO against the husband.
zzzzz)On 28 March 2019, a final ADVO was made against the husband for the protection of the wife for a period of 6 months. The husband consented on a “without admission” basis to that ADVO.
aaaaaa)On 30 June 2019, the husband had paid $1,993.05 by way of child support to the wife for the year ending on that date.
bbbbbb)Between 1 July 2019 and 30 August 2019, the husband paid $650.00 by way of child support to the wife.
cccccc)On 8 October 2019, the Court made orders by consent as to parenting matters which included orders, inter alia, to the following effect:
i)The wife was to have sole parental responsibility for the children;
ii)W, X and Y were to spend time with the husband according to their wishes; and
iii)Z was to spend time with the husband in increasing increments culminating in her, eventually, spending time with him every second Saturday from 8.00am to 5.00pm (from 30 April 2020) and on special occasions for a number of hours.
The Law
The decision of the High Court of Australia in Stanford v Stanford [2012] HCA 52 (“Stanford”) makes it clear that the starting point for the exercise of the Court’s jurisdiction under s.79 of the Act to alter the property interests of parties to the marriage is the identification of the existing legal and equitable interests of each of the parties in their property.
Both parties assert and the Court accepts that, in all the circumstances, it is just and equitable that there should be a property adjustment order in terms of the principles set out in Stanford.
The preferred approach to the determination of an application under s.79 of the Act is as set out by the Full Court of the Family Court of Australia in the case of Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143 at p 39, which sets out the following four inter-related steps:
1. Identify and value, as at the date of hearing, the parties’ property, liabilities and financial resources;
2. Identify and assess the contributions under s.79(4)(a),(b) & (c) (“the first limb – the contribution factors”) of the parties and express them as a percentage of the net value of the property (examined on either a global approach or an asset by asset approach, depending on the circumstances of the case);
3. Identify and assess the other factors relevant under s.79(4)(d)(e),(f) & (g), (“the second limb – ongoing needs and effect of orders”) including, because of s.79(4)(e), the matters referred to in s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
4. Consider the effect of the above and resolve what order is just and equitable in all the circumstances of the case.
In undertaking the first step outlined above, the Court must act with reasonable precision in both identifying and valuing the property pool. However, in the subsequent steps, the Court is not required to assess contributions with mathematical precision: G & G (1984) FLC 91-582 (Nygh J).
In Mallett & Mallett (1984) FLC 91-507, the High Court of Australia held that there was no rule or principle that the property built up by the parties’ joint efforts should be assumed as being equally contributed to.
Section 79(4) of the Act [Matters to be taken into account]
In considering what order (if any) should be made under this section in property settlement proceedings, the Court shall take into account:
a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
e)the matters referred to in subsection 75(2) so far as they are relevant; and
f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Section 75(2) of the Act [Matters]
The matters to be so taken into account are:
a)the age and state of health of each of the parties;
b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
d)commitments of each of the parties that are necessary to enable the party to support:
i)himself or herself; and
ii)a child or another person that the party has a duty to maintain;
e)the responsibilities of either party to support any other person;
f)subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under:
i)any law of the Commonwealth, of a State or Territory or of another country; or
ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia, and the rate of any such pension, allowance or benefit being paid to either party;
g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
l)the need to protect a party who wishes to continue that party's role as a parent;
m)if either party is cohabiting with another person, the financial circumstances relating to the cohabitation;
n)the terms of any order made or proposed to be made under section 79 in relation to:
i)the property of the parties; or
ii)vested bankruptcy property in relation to a bankrupt party;
naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
i)a party to the marriage; or
ii)a person who is a party to a de facto relationship with a party to the marriage; or
iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
p)the terms of any financial agreement that is binding on the parties.
q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
General
It must be noted that an entitlement to make an application pursuant to s.79 of the Act does not create any legal or equitable right in property. Property rights come into existence only upon the making of an order: Re Chemaisse; Federal Commissioner of Taxation (Intervener) (1990) FLC 92-133.
Superannuation
The Full Court of the Family Court of Australia’s decision in C & C (2005) FLC 93-220 requires the Court to consider the parties’ superannuation interests as a separate species of property.
Where the parties have superannuation, the preferred approach for the Court to adopt, as discussed in C & C (2005) FLC 93-220, is to prepare, as a separate pool, a list of the superannuation interest/s, and where a splitting order is sought under Part VIIB of the Act (or if no such order is sought, it being prudent to do so), carry out the following exercise:
a)Value the superannuation interest/s (according to the Regulations, if a splitting order is sought, or if no such order is sought, then according to the Regulations or otherwise).
b)Identify and assess the contributions under s.79(4)(a),(b) & (c), (“the first limb – the contribution factors”) of the parties and express them as a percentage of the superannuation interest/s (examined on either a global approach or an interest by interest approach, depending on the circumstances of the case);
c)Identify and assess the other factors relevant under s.79(4)(d)(e),(f) & (g), (“the second limb – ongoing needs and effect of orders”) including, because of s.79(4)(e), the matters referred to in s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
d)Consider the effect of the above and resolve what order is just and equitable (in relation to the parties’ property and superannuation interests) in all the circumstances of the case.
C & C (2005) FLC 93-220 also set out in the context of a Court’s consideration of the matters set out in paragraph 22(b) and (c) above, the following relevant matters:
The relationship between years of fund membership and cohabitation, actual contributions made by the fund member at the commencement of the cohabitation (if applicable), at separation and at the date of hearing; preserved and non-preserved resignation entitlements at those times; and any factors peculiar to the fund or to the spouse’s present or future entitlements under the fund.
The above statement, was the subject of further analysis by the Full Court of the Family Court of Australia in its decision in M & M (2006) FLC 93-281, where the Court said:
In our view it is clear from those comments that the majority in C & C (supra) was concerned with a consideration of actual contributions where they were ascertainable. The relationship between years of fund membership and cohabitation might be relevant in a defined benefits scheme whereas actual contributions made by the fund member at the commencement of the cohabitation might be relevant to an accumulation fund where in both cases the marriage was of short duration. However, in our view there is nothing said by the majority in C & C (supra) that would give any support for the application of some kind of a formula or that contributions to superannuation whatever the nature of the fund, should be treated in a different way from contributions to other property under s 79(4). This is so in our view whether the superannuation is considered as part of one pool of assets or in a separate pool.
As the Full Court of the Family Court of Australia said in Doherty & Doherty (2006) FLC 93-256, in carrying out the exercise referred to in paragraph 22(d) above, the Court must also have specific regard to a consideration of the mix of superannuation interests and other property with which each party will be left as a result of the Court’s proposed orders. It may be that even though no party seeks a splitting order, it will become clear to the Court that the only just and equitable order which can be made in a particular case, will be for such a splitting order to be made. The Court must then afford the parties an opportunity to be heard in relation to that, and provide to any trustee of the superannuation fund, appropriate notice and a formal valuation of any superannuation interest under the Regulations may be required.
In Wilkinson & Wilkinson (2005) FLC 93-222, the Full Court of the Family Court of Australia (Bryant CJ, Finn, Coleman, Warnick and O'Ryan JJ) held that an increase in a party’s superannuation since separation requires judicial intervention necessitating the Court considering the parties’ relevant contributions.
Notwithstanding the preferred approach, the Full Court of the Family Court of Australia in C & C (2005) FLC 93-220 also stated that the Court had discretion to include a superannuation interest as an item of property (whether or not a splitting order is sought) and not consider it as part of a separate pool. The Court indicated that such an approach could be adopted, where:
a)The parties agreed; or
b)The superannuation interest itself fell within the definition of property contained in s.4(1) of the Act; or
c)If the interest did not fall within the definition of property, it was of small value when compared to the value of the items of property; or
d)There are features about the superannuation interest which make this appropriate.
The wife maintained that superannuation should be included within the one pool with the parties’ property interests so as to give her the best chance to pay out the husband and retain the D Street, Suburb A property for her benefit and for the benefit of accommodating the children. The wife said that all of the children had grown up at the D Street, Suburb A property and as such their social network, including their schools, were within the vicinity of the former matrimonial home.
The husband maintained that, given his age, he would be unable to access his superannuation for an extended period and it would, therefore, be considered unjust to allow for the proposition propounded by the wife to take a one (1) asset pool approach with superannuation included in that pool.
The Court accepts the husband’s submission with respect to the superannuation interests of the parties being dealt with in a separate pool given that none of the matters set out in paragraph 27 above applied and noting, in particular, that the value of the parties’ superannuation interests totalled some $232,623.00 which represented approximately 20.7% of the net property pool and approximately 17.1% of the net property and superannuation sums.
In finding the 2 pool approach to be a more appropriate approach in respect of the facts of these proceedings, the Court adopts the reasoning of her Honour, Justice May in Mayne v Mayne No.2 [2012] FamCAFC 90, at paragraphs 79 and 80 thereof, as follows:
79. In my reasons for judgment in the substantive appeal, I noted it is permissible to treat superannuation assets differently or separately to other assets. There is nothing however, which requires a court to adopt a particular approach in certain circumstances. It is a discretionary decision.
80. The husband’s submissions have correctly identified that in circumstances where the superannuation interests constitute a significant portion of the parties’ property, it may be appropriate to adopt a two pool approach. The value of the parties’ superannuation as a percentage of the total property pool at trial was 21.4 per cent (with the add-back) or 24.6 per cent (without the add-back). On the current values, the superannuation represents significantly more of the total pool, being 29.4 per cent (with the add-back) or 33.6 per cent (without the add-back).
Separate Pool
Accordingly, the Court will consider the parties’ superannuation interests in a separate pool.
Issues
There are a number of factual issues to be determined, although many of the facts relevant to this application have been agreed.
The relevant matters in issue are:
a)The determination of the property pool.
b)Whether the Court should exclude the parties’ joint interest in the B Timeshare with an agreed value of $7,000.00 as the parties had agreed that the husband would receive this asset but subject to a continuing obligation to pay $62.00 per week to maintain it.
c)Whether the interest of the husband in the Country BB property should be considered a financial resource.
d)Whether the interest of the wife in the T Street, Suburb U property should be considered a financial resource.
e)The question of “addbacks” in terms of each party redrawing funds under the joint loan facilities with C Bank.
f)Whether the wife’s Higher Education Contribution Scheme (“HECS”) debt should be included as a joint liability in the property pool.
g)The respective financial and non-financial contributions of the parties.
h)The question of any adjustment with respect to the alleged failure by the husband to give full and frank disclosure as to an alleged dissipation of $99,700.00 withdrawn from the parties’ residential loan facility account number ...00 in the period 2013 to 2015.
i)Any adjustment to the wife in respect of the principles in Kennon& Kennon (1997) FLC 92-757 (“Kennon”).
What were the parties’ property, superannuation, liabilities and financial resources at the time of hearing?
The following schedules contain all items which the parties have each identified as their property, liabilities, superannuation and financial resources, as set out in Exhibit “Court 2B”:
| PROPERTY | H/J/W | VALUE $ | |
| Non-superannuation | |||
| 1. | The D Street, Suburb A property | J | 1,360,000.00 |
| 2. | Motor bike | H | 5,000.00 |
| 3. | Motor Vehicle 2 | H | 25,000.00 |
| 4. | Motor Vehicle 1 | W | 15,000.00 |
| 5. | Interest in B Timeshare | J | 7,000.00 |
| 6. | Business and tools | H | No value attached |
| ADD BACKS | |||
| 7. | Re-draw from the mortgage to the benefit of the wife | 0W E18,401.00H | |
| 8. | Re-draw from the mortgage to the benefit of the husband | 121,171.00W 0H | |
| 9. | Legal fees | H | 12,000.00 |
| 10. | Legal Fees | W | 1,000.00 |
| LIABILITIES | |||
| 11. | Mortgage to C Bank | J | 243,791.00 |
| 12. | Ongoing payments for the B Timeshare on monthly basis | J | 0 |
| 13. | HECS debt (notwithstanding that Exhibit “Court 2B” showed H) | W | 11,615.00 |
| 14. | Car loan | H | 18,750.00 |
| FINANCIAL RESOURCES | |||
| 15. | Husband’s interest in the Country BB property (converted as the husband’s half share of 170,000 Euro AUD: $284,648.00) | H | 148,602.00 W 0H |
| 16. | Wife’s interest in the T Street, Suburb U property | W | 0W 337,500.00H |
| SUPERANNUATION | |||
| 1. | Super Fund DDD | H | 177,452.00 |
| 2. | Super Fund EEE | W | 15,655.00 |
| 3. | Super Fund FFF | W | 1,439.00 |
| 4. | Super Fund GGG | W | 38,077.00 |
The value of each of the various items of property, superannuation and liabilities, referred to in the above schedule, are not in contention. There are, however, disputes as to whether certain items should be included in the pool(s), which will be the subject of determination.
With respect to the issue of financial resources, the Court notes the parties’ respective positions as follows:
a)The husband's return of his interest in the Country BB property to his mother occurred in accordance with his evidence in 2015/16 being some 3 years after the parties separated. The husband conceded that he did not inform the wife of this. While the Court accepts that the potential value of this property to the husband would be contingent upon a number of unknown factors including, for example, whether his mother and sister continue ownership, what testamentary conditions might apply to it upon the death of the husband’s mother and market forces, whereby any value ascribed by the wife to this resource would need to be significantly discounted as a consequence of these factors, the Court notes that the husband referred to this half share as having an estimated value of $130,000.00 in September 2019 (See also his financial statement filed 19 December 2017 being Exhibit “G”). While the wife submits that the husband’s mother is simply holding this interest until the proceedings are completed, it must be remembered that the wife agreed that she had made no contribution to this property, in any event. The husband’s father, Mr F, conceded that the transfer of the land to the husband had been a gift to him and he knew of no reason why the husband would transfer that interest away to his mother. The property is not rented out but used by a cousin. Similarly, the car driven by W appears to be registered in the husband’s mother’s name. No reason was suggested for that apart from by the husband’s mother, herself, who said it was because W did not have a licence. The Court is of the view that the husband’s mother is likely to assist him and that the Country BB property would be available to him, in that regard. The Court proposes to ascribe $130,000.00 to the value of that resource in the balance sheet, as that figure had been adopted by the husband, himself. The Court, further, notes the evidence of the husband’s parents that they have assisted him, financially, in these proceedings in terms of the payment in cash of legal fees to the extent of, approximately, $28,000.00.
b)The Court accepts the wife’s submission that the transfer of her interest in the T Street, Suburb U property could not be considered by the Court as pre-emptive action by the wife to reduce the total asset pool of the parties, noting that such a transfer occurred in 2005/2006, being at least some 6 to 7 years prior to the parties’ separation in 2012. There was no evidence, contrary to her assertion, that she had financially contributed to the T Street, Suburb U property. The wife’s mother confirmed that position. The Court accepts that the wife has no current interest in that property. The Court proposes to ascribe $0.00 to the value of that asserted resource in the balance sheet.
The Court also accepts that there is some disparity in the current and future earning capacities of the wife and the husband. The wife has improved her income earning capacity by obtaining qualifications, whereas the husband's previous earning capacity (whilst working as a labourer) has been, substantially, impacted upon by his inability to continue his employment as a labourer and his continuing operation of his business. The Court would wish to ensure that the husband was not left in a precarious financial position for the rest of his working life.
The Court accepts that the wife has not been able to clearly demonstrate that she would be in a position to seek to refinance the mortgage to the C Bank over the D Street, Suburb A property so as to retain it and to pay out the husband his interest. The husband, nevertheless, conceded that a time could be provided for the wife to be able to do so. Accordingly, the payment to be made by the wife to the husband referred to above should be made within 2 months of the date of the Court’s orders, failing which, the D Street, Suburb A property will be sold with consequential orders to effect the sale. The orders proposed by the parties are reasonable. The Court has amended the proposed order with respect to the valuation of the D Street, Suburb A property so that it is carried out by the President of the NSW Division of the Australia Property Institute or its successor rather than by the President of the Real Estate Institute of NSW, which the Court accepts was not the correct entity to carry out a valuation, in any event. The sum to be paid to the husband of $346,493.05 represents 25.5% of the current agreed value for the D Street, Suburb A property of $1,360,000.00. If that value was to change on its sale noting there would be costs of such sale the percentage of the net proceeds of sale should therefore be divided as to 25.5% to the husband and 74.5% to the wife. Those figures can be inserted in the order 3(d) as set out at the commencement of these reasons.
In assessing whether or not this is a just and equitable outcome, it would result in a situation where each party has an equalised superannuation position which they will be able to access at some future date. The husband will be able to keep his business which although it has little current value, does provide him with a vehicle to earn money and gives him some degree of flexibility. Both parties are able to earn an income. If the wife is able to acquire the D Street, Suburb A property, that appears to be in the interests of both parties and the children. The husband will receive a payment in the order of $346,493.05 together with the other property as set out in paragraph 188, above.
The Court is further of the view that the superannuation pool should be equalised by applying a similar percentage (namely 50/50) which gives rise to a split of approximately $116,311.50 to each of the husband and the wife. Such a split would require that the base sum of $61,140.50 be allocated to the wife out of the husband’s interest in his superannuation with Super Fund DDD. The Court is, further, satisfied that the Superannuation Trustee has been afforded procedural fairness, in this regard.
The Court is satisfied that in all the circumstances of this case, the orders proposed are just and equitable.
Costs
Section 117 of the Act sets out that each party shall bear his or her own costs subject to the considerations in sub-section two.
Any order for costs must also be determined in light of the substantive judgment and the relative success or failure of the parties. This is naturally something that can only be addressed after judgment is delivered.
The Court proposes to make the orders and directions in relation to any application for costs that might be made as set forth above.
Otherwise, the matter can be removed from the active pending cases list.
I certify that the preceding two hundred (200) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Associate:
Date: 4 August 2020
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