Maples & Maples
[2023] FedCFamC2F 782
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Maples & Maples [2023] FedCFamC2F 782
File number(s): NCC 2083 of 2020 Judgment of: JUDGE BETTS Date of judgment: 6 June 2023 Catchwords: FAMILY LAW – Parenting – final hearing – two children aged 14 and 11 – where the father seeks equal shared parental responsibility and the mother seeks sole parental responsibility – where the children live primarily with the mother – where there is very poor communication between the parents – best interest of children for mother to have sole parental responsibility.
FAMILY LAW – Property settlement dispute – final hearing – substantial disputes in balance sheet – where the Court finds 53% to the wife and 47% to the husband non-superannuation property; and 50/50 split of superannuation – just and equitable outcome.
Legislation: Family Law Act 1975 (Clth)
Income Tax Assessment Act 1936 (Clth).
Cases cited: Mezzacappa & Mezzacappa (1987) FLC 91-853
Weir & Weir (1993) FLC 92-338
Division: Division 2 Family Law Number of paragraphs: 256 Date of last submission/s: 16 March 2023 Date of hearing: 1-2 December 2022; 6 March 2023; and 16 March 2023. Place: Newcastle Counsel for the Applicant: Mr Graham Solicitor for the Applicant: Tony Cox Lawyers Counsel for the Respondent: Mr Bateman Solicitor for the Respondent: Eddelbuttel Law ORDERS
NCC 2083 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MAPLES
Applicant
AND: MR MAPLES
Respondent
order made by:
JUDGE BETTS
DATE OF ORDER:
6 JUNE 2023
THE COURT ORDERS THAT:
PARENTING ORDERS
1.That all previous parenting orders be discharged.
2.That the Mother have sole parental responsibility for the major long-term issues of the children X born in 2009 and Y born in 2012 (“the children”).
3.Within seven (7) days of making any major long-term decision pursuant to order 2, the Mother is to notify the Father in writing of such decision.
4.Each parent will be responsible for day-to day-decisions concerning the care of the children at times when the children are with that parent pursuant to these orders.
5.That the children live with the Mother.
6.That the children spend time with the Father as agreed between the parents in writing and failing agreement:
(a)Each alternate week from after school Wednesday until before school the following Monday, commencing the first week of each school term;
(b)At the end of terms 1, 2 and 3 in even numbered years from 9.00am on the first Saturday until 5.00pm on the second Sunday and in odd numbered years from 5.00pm on the second Sunday until 5.00pm on the third Sunday;
(c)During the end of term 4 school holidays: in even numbered years for two weeks from 2.00pm on 24 December.
(d)During the end of term 4 school holidays: in odd numbered years for two weeks from 2.00pm on 26 December.
7.If Father’s Day falls on a weekend when the children are not already spending time with the Father, the children are to spend time with him from 5.00pm on the Saturday before Father’s Day until commencement of school on the following Monday.
8.If Mother’s Day falls on a weekend when the children are not already spending time with the Mother, the children are to spend time with the Mother from 5.00pm on the Saturday before Mother’s Day until commencement of school on the following Monday.
9.Each parent is to encourage and facilitate telephone and electronic communication between the children and the other parent at all reasonable times whilst the children is in that parent’s care.
10.Unless otherwise agreed between the parents in writing, changeover shall occur at school (noting that the children may travel by bus) and, in the event changeover occurs on a day the children are not at school, changeover is to occur at McDonalds Town B.
11.For the purposes of these orders, the parents are to communicate about the children in writing by way of email, text or the use of an agreed parenting App.
12.Within twenty-four (24) hours, each parent shall advise the other in writing of any change to that parent’s residential address, telephone number(s) and email address.
13.Each parent must notify the other parent in writing as soon as possible if either of the children becomes ill and has to see a doctor or other health professional, or is admitted to hospital, and such notification shall include the nature of the illness or injury, the name and location of the treatment facility, and the details of any future appointments or consultations.
14.The Mother shall keep the Father informed of the name and contact information of any doctors or other health professionals the children attend upon from time to time.
Authorities
15.These Orders are sufficient authority to permit any medical practitioner, dental practitioner, hospital or medical practice that the children attend from time to time to provide to each parent (at that parent’s own expense) any information and reports regarding the children.
16.These Orders are sufficient authority to permit the Principal of any school attended by any of the children, to provide to each parent (at that parent’s own expense) copies of school reports, newsletters, order forms for school photographs or other information normally provided to the parents.
17.Both parents are at liberty to attend all sporting events and extracurricular activities involving either or both of the children, provided that such attendance is permitted by the organiser of the event or activity.
Restraints
18.Each parent is restrained from denigrating the other parent to or in the presence or hearing of the children, or from permitting the children to remain in the presence or hearing of another person denigrating the other parent.
19.When the children are in either parent’s care, that parent is restrained from:
(a)Possessing, consuming or being in any way affected by any illicit substance;
(b)Consuming alcohol to such an extent that the parent would not lawfully be able to drive a motor vehicle NOTING HOWEVER that this specific alcohol injunction is not intended to limit the right of either parent to make other appropriate care arrangements pursuant to s 65DAE of the Act if the parent intends to consume alcohol.
Passports and International Travel
20.Each parent shall cooperate with the other parent in signing all documents necessary to renew or replace the children’s passports, within seven (7) days of a request in writing to do so.
21.The parents shall equally share the cost of obtaining, renewing or replacing the children’s passports.
22.In odd-numbered years, the Mother shall hold X and Y’s passports and in even numbered years the Father shall hold X and Y’s passports.
23.Pursuant to section 11(1)(b) of the Australian Passports Act 2005 and section 65Y(2) of the Family Law Act 1975, each parent is permitted to travel internationally with the children, on the following conditions:
(a)Unless otherwise agreed in writing, such travel is not to interfere with the children’s time with the other parent in accordance with these Orders;
(b)The travelling parent provides the other parent with at least five (5) weeks’ notice, in writing, of the proposed departure and return dates, and destination(s); and
(c)At least two (2) weeks prior to departure, the travelling parent must provide the other parent with a copy of all return tickets and travel itineraries for the children, telephone contact numbers for the children while overseas, details of the accommodation provider and copies of travel insurance documents.
24.Not less than fourteen (14) days before any international trip that the children are going on with either parent, the non-travelling parent shall do all things to provide the travelling parent with the childrens’ passports if necessary, and the travelling parent shall return the childrens’ passports to the non-travelling parent at the first changeover after the international trip.
PROPERTY ORDERS
25.That within thirty (30) days of the making of these orders, the parties are to do all acts and things necessary to:
(a)transfer to the Wife all of the Husband’s right, title and interest in and to the former matrimonial home situated at C Street, Town D and being the whole of the land comprised in title reference … (“the Town D property”);
(b)transfer to the Husband all of the Wife’s right, title and interest in and to the real property situated at E Street, Town F and being the whole of the land comprised in title reference … (“the Town F property”);
(c)in the Husband’s case, vacate the Town D property;
(d)in the Wife’s case, vacate the Town F property.
26.Contemporaneously with the transfers in order 25 above:
(a)The Husband is to discharge the mortgage encumbering the Town D property so that the Wife receives it unencumbered;
(b)The Husband is to refinance the mortgage encumbering the Town F property so that the wife is removed as a borrower and mortgagor.
27.That forthwith upon the making of these Orders the Wife shall do all acts and things necessary to transfer to the Husband, any and all shares, claims, reimbursements or other interest she holds in either the corporate entity known as Maples Pty Ltd trading as "G Company" or H Pty Ltd trading as "J Company" and any subsidiary or associated business(es) with either said corporate entity.
28.The Husband is to indemnify the Wife in respect of any liability:
(a)on account of any loans owed by either party to Maples Pty Ltd (or to any other entity referred to in order 27) which may potentially attract the operation of Division 7A of the Income Tax Assessment Act 1936 (Clth);
(b)in respect of the outstanding bills of the parties referred to in these Reasons in the amount of $52,710;
(c)in respect of the joint post-separation payments made by the Husband referred to in these Reasons of $179,672.
29.That within thirty (30) days of the making of these orders, the parties are to do all acts and things to transfer to the Wife, unencumbered, the Motor Vehicle 1.
30.The Wife shall have no further claim on the assets, income, capital or interests of either of the said corporate entities, Maples Pty Ltd and/or H Pty Ltd or any associated business(es).
31.That within thirty (30) days of the making of these orders, the parties are to do all acts and things to sell Motor Vehicle 2 in the husband’s possession with the net proceeds to be divided 53% to the wife and 47% to the husband. Any sale must be approved by both parties and recorded in writing. (IT IS NOTED that the parties are free to negotiate an agreed value for Motor Vehicle 2 in the event they agree that one of them is to retain the vehicle and make a cash adjustment to the other).
SUPERANNUATION
32.That the base amount of $67,375 is allocated, as required by s.90XT(1)(a) of the Family Law Act 1975, to Ms Maples out of the interest held by Mr Maples in Super Fund 1.
33.That whenever the Trustee of Super Fund 1 makes a splittable payment to Mr Maples, the trustee shall pay Ms Maples, the entitlement calculated under Part 6 of the Family Law (Superannuation) Regulations 2001 and make a corresponding reduction in the entitlement Mr Maples would have had but for this agreement.
34.That Order 33 has effect from the operative time.
35.That the operative time is four (4) business days after the date of service of sealed orders upon the trustee.
36.That Order 33 binds the Trustee of Super Fund 1.
37.That otherwise than as provided herein the Applicant Wife and Respondent Husband each be declared the sole legal and beneficial owners of all other items of property including money, superannuation, motor vehicles, furniture and furnishings, insurances, personal effects presently in the possession or control of each of them respectively.
38.That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all property, including chases-in-action, in the possession of such party as at the date of these orders;
(b)Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;
(c)Each party foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these orders;
(d)All insurance policies are to become the sole property of the owner as named;
(e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(f)Any joint tenancy of the Husband and Wife in any real or personal estate is expressly severed.
39.The Court will hear the parties as to costs at 9.30am on 26 July 2023 in Newcastle.
NOTATION:
A.The parties and legal representatives in the proceedings are granted leave to appear at the costs hearing on 26 July 2023 by way of Microsoft Teams telephone link and the steps to be followed are:
(a)Dial: …
(b)Enter Conference ID: …#
B.When your matter is called, press *6 to unmute. Please note that the Court will mute all participants until the matter is called.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Maples & Maples has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
These reasons for judgment were delivered orally. They have been corrected from the transcript in order to make them easier to read.
INTRODUCTION
These are parenting and property settlement proceedings arising out of the breakdown of a marriage. The applicant in the proceedings is Ms Maples, whom I will refer to as “the wife”. The respondent is Mr Maples, whom I will refer to as “the husband”.
The husband is forty-one (41) years of age, having been born in 1981. He conducts his own business in the Region K. His business is known as G Company. He also has an associated business, which changed its name in more recent times to J Company.
The wife is forty (40) years of age, having been born in 1983. She works as a public servant.
Each of the parties has re-partnered, and I will refer to such matters later herein.
The parties commenced cohabitation in 1999, married in 2004 and finally separated in March 2019. They went on to divorce in September 2020. Their relationship was a somewhat turbulent one. There were two (2) earlier separations, although the parties disagree as to the length of those separations. As will become apparent, they disagree about a great many fairly basic facts in this case. It would be fair to say however that, overall, their relationship subsisted for around 19 years. Most of the relationship was conducted in the Region K.
The parties have four (4) children, although only the youngest two (2) are the subject of the parenting proceedings. Their eldest, Mr L, was born in 2002. Their second child, Ms M, was born in 2005. Their third child, X, was born in 2009. And their youngest child, Y, was born in 2012.
Ms M lives primarily with her mother. X lives primarily with her mother but spends around five (5) nights per fortnight with the father. And Y has been living on a week-about arrangement between the two parents. X is presently in Year 8 at N School, where her sister, Ms M, also attended. And Y is in Year 5 at O School. Y has special needs in that he has attention deficit hyperactivity disorder.
As I indicated, each of the parties has re-partnered. The husband's partner is one Ms P. They live together and have cohabited since early 2020. She has been working for the G Company business but is presently on maternity leave, having recently given birth to their child Q in 2022.
The wife has re-partnered with one Mr R, who apparently lives in the Town S region. During the course of the hearing it emerged that the wife has recently signed a contract to purchase a property with Mr R in the Town B area. Theirs is clearly a committed relationship. Indeed, seemingly on the strength of that relationship, the wife abandoned her application for spousal maintenance at the hearing.
THE HEARING / MATERIAL RELIED UPON / WITNESS OBSERVATIONS
These proceedings were commenced by the wife on 23 June 2020. They came on for final hearing before me at Town T on 1 & 2 December 2022. They were adjourned to 6 March 2023 for closing submissions, but the evidence was then re-opened on that occasion and there was some further cross-examination of both the husband and the wife.
In the result, closing submissions were adjourned over to 16 March 2023.
At the end of those submissions, the parties were directed to provide an updated Minute of Orders that each of them sought, together with child support documents, as there was some contention about the husband’s payment of child support to the wife and the extent of the arrears.
The Court formally reserved judgement on 29 March 2023 after receiving the last of the documents directed to be provided.
Throughout the hearing Mr Graham of counsel appeared for the wife; Mr Bateman of counsel appeared for the husband.
All of the wife's trial material was filed late and leave was needed to rely upon it. Her material consisted of:
·a Case Outline Document and proposed Minute of Order (which was later superseded);
·the wife's affidavit filed 28 November 2022;
·her Amended Financial Statement filed 28 November 2022; and
·an affidavit of Ms U, who had valued the business entities, which affidavit was filed on 29 November 2022, and annexed her valuation reports as at 30 June 2022.
The husband's material was similarly late and required a grant of leave. He relied upon:
·a Case Outline Document filed 30 November 2022;
·the husband’s affidavit filed 22 November 2022; and
·his Financial Statement filed 12 October 2022.
I should also indicate that, in addition to the documents I have referred to, the parties relied on various other “independent” documents consisting of other valuation evidence. None of that was particularly controversial. There was also a Family Report.
I have seen both of the parties give evidence in this case and it would be fair to say that there is “no love lost” between them. I do not and cannot fully accept the evidence of either of them. I have concerns about the credit of both of them about various matters, particularly financial matters. Each of them has disposed of, or otherwise dealt with, matrimonial property in a manner which was less than transparent and which arouses the Court’s suspicion - and in particular the husband, for reasons that will become apparent in the course of these reasons.
PART I – THE PARENTING PROCEEDINGS
THE LAW
Pursuant to the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”), the Court is obliged to make orders which are in the “best interests” of X and Y: s 60CA. In arriving at a “best interests” determination, the Court is obliged to have regard to the mandatory best interests considerations set out in s 60CC(2), (2A) and (3) of the Act.
There is a presumption that, when making a parenting order, it would be in the best interests of the children to order that the parents equally share parental responsibility: s 61DA(1). That presumption does not apply in circumstances where the Court has reasonable grounds to believe that a parent has engaged in “abuse” of the child or of another child who is a member of the parent’s family, or if the Court has reasonable grounds to believe that a parent has engaged in “family violence”: s 61DA(2). But even if the presumption does apply, it may nonetheless be rebutted by evidence that satisfies the Court that it would not in fact be in the best interests of the child or children for the parents to share parental responsibility equally: s 61DA(4).
In the event the Court makes an order for equal shared parental responsibility, s 65DAA of the Act is engaged and the Court is then obliged to consider an order for equal time as the first option, provided such an order is in the children’s best interests and is “reasonably practicable”. If equal time is not in the children's best interests or is not reasonably practicable, then the Court must consider making an order that the children live primarily with one parent but spend “substantial and significant time” with the other parent. “Substantial and significant time” is defined in s 65DAA(3).
Section 68B also empowers the Court in an appropriate case to impose injunctions as are “appropriate for the welfare of the child”, including various injunctions for the personal protection of children or parents.
THE LIMITED ISSUES IN DISPUTE
I turn then to the limited issues that are actually in dispute in this case and intend to confine my observations to those issues.
Fundamentally, despite a significant - indeed yawning - gap between the parents in terms of what each proposed at the start of the hearing, they were, to their credit and with the assistance of their legal advisors, able to significantly narrow the issues. Fundamentally, they agreed that the children – that is, X and Y – would live with the mother and spend five (5) nights per fortnight with the father, together with time during the school holiday period. The only question mark in my mind about school holidays was that the wife’s order formally proposed that the husband have a two (2) week block with the children at Christmas. The husband had no specific proposal for block time at Christmas and I am not sure if that was a “slip” on his part.
In any event, the major issue in the case was parental responsibility. The husband sought equal shared parental responsibility but was willing to concede that the wife have sole parental responsibility in relation to decisions about the children’s health and education. The wife sought sole parental responsibility.
There was numerous other - what might be called fairly “minor” machinery-type debates between the parties – which do not really make a big difference to the outcome for these children.
I get rather the sense about these two parties that they “needed their day in Court”. Perhaps it was that which stopped them from reaching a final agreement notwithstanding that they did substantially manage to do so.
BRIEF FACTUAL BACKGROUND
In terms of a brief factual background, and I intend to be brief given the narrow issues in dispute, I make these observations.
As a general statement, during the relationship the wife was the primary carer of the children. The husband was involved in the children’s care, albeit to a lesser extent.
In the Family Report (exhibit 4), the wife accused the husband of perpetrating family violence against her during the relationship. In turn, the husband made counter-allegations that the wife had been violent towards him, particularly when she had been drinking. It is common ground that neither party ever applied for an AVO nor were Police ever called to their home.
The issue of family violence was not explored at the final hearing and I consider that I am unable to make any finding about family violence in this case.
Post-separation, the husband was the primary carer of the children for the first couple of months. This was at a time when the wife was herself abusing alcohol as she was wont to do at different times.
They attended mediation in June of 2019 and agreed at that time that Ms M, X and Y should spend equal time with each parent. That said, this arrangement only lasted a relatively short time before Ms M “voted with her feet” and began primarily staying with the mother.
What brought these parties to Court was that, in June 2020, the wife was charged with a criminal offence, which I will deal with in more detail in the property settlement proceedings. It suffices to observe that the husband decided at that time that he should retain the children -which in my view was, in all likelihood, “overkill”.
The wife then brought urgent proceedings seeking the return of the children, and on 1 July 2020 this Court made an interim order by consent. In particular, in that order the parties agreed to trial equal shared parental responsibility and that X and Y would spend seven (7) nights per fortnight with the husband. That is to say, an equal time arrangement was implemented.
It is common ground that after a few months, perhaps three (3) or four (4) in total, X’s time with the husband decreased and eventually she ended up going to his home about four (4) nights per fortnight. The husband blames the wife for X’s reluctance, but I accept the wife’s evidence that she “pushed X to go” but that X was struggling to cope. It is common ground that X had big suitcases worth of clothes and the like that she had to take between the two households, which would not have made it easier for her. In addition, the parties were in very high conflict to which X was no doubt exposed. The husband had also denigrated the wife, particularly around the time of her being charged with this criminal matter to which I will refer. That said, I am sure that the wife, on occasion, also denigrated the husband to the children as well - or at least permitted him to be denigrated in the children’s presence.
The husband never brought a Contravention Application in relation to X, which was probably sensible on his part. It is clear that X was having some difficulties. She went to see her school counsellor as well as a psychologist during this period of adjustment.
As for Y, he did go on a week-about basis to the husband’s home. On occasions he appears to have had some conflict with the husband’s partner, Ms P. But broadly speaking, the orders worked in his case.
BEST INTERESTS
I turn then to the particular disputes between the parties, or at least the major disputes, by reference to the s 60CC considerations.
I begin by observing that the children would benefit from having a meaningful relationship with each of the parents and a meaningful relationship will ensue regardless of the orders this Court makes.
There is no need in this case to protect the children from physical or psychological harm from being subjected, or exposed to, family violence or abuse.
The mother has at times historically consumed alcohol to excess, which the children are aware of and have been exposed to. But equally, the husband has consumed cannabis throughout the relationship at different times. And to that extent, he has been something of an absent parent at those times. The Court will address these matters in the course of the orders that I propose to make, but they are quite manageable issues.
In terms of s 60CC(3), the parents, to their credit, have taken into account the children’s views. It seems clear enough that X does not want to spend equal time with her father and is broadly content with the current arrangement and wants a degree of autonomy. As for Y, he wanted to spend more time with his mother than the 7/7 arrangement permitted, and to his credit, the husband has agreed that the time ought to revert to a 9/5 arrangement for Y as well.
The children have relationships with each of their parents and no doubt have formed relationships with each of their parent’s partners, particularly in the case of Ms P. The child, Q, is also relevant and no doubt is seen by the children in an excited way as a younger sibling.
Each of the parents has been significantly involved in decision-making for the children.
There is a dispute about the husband’s commitment to paying child support. It is clear enough from the evidence, which I will deal with in more detail in the property proceedings, that the husband has been in arrears of child support, but I do not see this as a particularly significant matter, particularly given the relatively narrow issues that are in dispute before me.
In a practical sense, neither party is really proposing a radical change in the children’s circumstances, perhaps except for the issue of parental responsibility.
There are no practical difficulties or expenses that arise in implementing the orders in this case. The parties live close by each other.
In terms of the parents’ capacities and attitudes, the fundamental feature of this case has been the longstanding absence of communication between these parties. Quite extraordinarily, it emerged at trial in December 2022 that the parties had gone three (3) years (!) without so much as a phone call or a text message between them. They have had no personal communication since September 2019. Their email communication was also extremely limited and ineffective, as evidenced by the wife’s email to the husband on 28 April 2021 about extra-curricular activities, which the husband said had either gone into his “spam folder” or he simply had not seen it. I do not find that the husband deliberately ignored the message, but the fact that it was never responded to “says it all” in terms of communication between these parties.
In mid-2019, the husband was involved in an altercation with the wife’s then-partner, Mr V. Mr V was not called to give evidence. The husband gives me no detail about the event whatsoever in his affidavit. As a result of this altercation, it seems that the husband was convicted by a Magistrate of an offence and that a two (2) year AVO was put in place to protect Mr V from the husband. However, on appeal to the District Court the conviction was overturned and the AVO was set aside: see exhibits 5 and 6.
It seems to be that this particular altercation was the catalyst for the near-complete breakdown in parental communication.
In February 2020, the husband had the wife’s mobile phone number disconnected. She wasn’t consulted and only found out afterwards. While this is not specifically directly relevant to the children, it certainly impacted the capacity of the parents to communicate, albeit briefly, and it demonstrated a lack of respect in my view to not at least provide the wife with some basic information about what the husband was intending to do.
As I indicated, in June 2020 or thereabouts, the husband retained the children in relation to the wife’s criminal charge. The husband showed the children media articles about the case during the time that he had the children with him and he told them that their mother could be going to jail. This was extremely foolish on his part and no doubt caused some distress to the children.
Notably, when the husband was asked about the effect on the mother of him deciding to withhold the children, the husband said he had “not considered it” - which again says it all. Certainly, X and Y later spoke to the wife about what the husband had said about her. And it is a troubling matter in terms of the husband's attitude.
Perhaps the nadir of communication and lack of respect between these parties was yet to come.
The husband and Ms P held a party in early 2021. A group of people attended, including some apparently unwelcome youths who got themselves into a fight with Mr L. One of these characters apparently assaulted Mr L, injuring him to a very significant degree. The result was that Mr L ended up seriously wounded, and he suffered a large wound to his arm which caused serious injury. Somehow, Mr L also broke his leg in the course of the scuffle.
Now as Mr L was rushed to hospital, one would think that the husband might have let the wife know what had happened. He did not do so. He did not inform the wife until that afternoon by which time Mr L had already undertaken life-threatening surgery. The husband said that he thought Ms M, who was apparently present (at the party), could have told the wife about it and would have done so. He also said that when he was sitting around the hospital that he had no mobile phone - which I thought was a very poor excuse.
I find this one of the most extraordinarily disrespectful lacks of communication - or communication lapses - I have ever seen in this Court.
The parties had further dispute and debate in relation to Y when he was diagnosed with ADHD. Exhibit 10 is a Paediatric report of 21 October 2021, which notes that the husband had emailed the paediatrician, effectively to complain about how the wife was managing Y. Notably the Paediatrician observed that:
“It is sad that [Y]'s parents cannot work cooperatively to his advantage”.
There was a dispute between the parents about Y’s medication. There was a dispute about whether Y should be given the medication at school. Things did improve somewhat, which was fortunate for Y, and his medication regime was brought under control.
But despite both parents both undertaking a “Parenting After Separation” course, the husband admitted – and I think he is right about this – that the interim order for equal shared parental responsibility had been “a failure”. He said he would “like to think” that equal shared parental responsibility would work in the future, but even he hedged his bets on the issue saying he was “not sure”.
In this particular case, the communication problems are profound. Both parents clearly have a basic parenting capacity and have otherwise done a good job as parents in raising these children. But their co-parenting capacity, which is really of vital importance in a situation where the parties are separated, is rather lacking.
I note that the wife identifies as a first nations woman. That is, she identifies as being Aboriginal, as do the children. But this is not a particularly big factor given the very narrow issues in dispute in this case.
I make no findings about family violence as I have indicated.
In my view, a significant consideration in this case is section 60CC(3)(l). That is, the benefit to the children in making orders that would be least likely to lead to the institution of further proceedings. This is a matter which looms large through all of the orders I propose to make. Put simply, these children need sound, practical orders that will be able to be implemented and work to their advantage, notwithstanding whatever difficulties may exist between their parents.
DISCUSSION OF THE DISPUTED ISSUES
I turn then to the issue of parental responsibility. In my view, the evidence strongly supports a conclusion that the vesting of sole parental responsibility in the wife would be in the children’s best interests. By agreement, they live primarily with her, and the parents simply cannot communicate sufficiently to make an order for equal shared parental responsibility work. In the circumstances, to avoid the risk of further litigation and consistent with the recommendations of the Family Report writer, I consider that the wife should simply have sole parental responsibility.
There was a minor debate in terms of time in that, although the parties agreed on a 9/5 arrangement during the school terms, the husband wanted the children to return to the wife’s care at 3 pm on the Monday, rather than on the Monday morning. That is to say, the parties agree that the father should have the children each alternate week from after school Wednesday, but the debate is whether they should return to the mother's care at the commencement of school or at the conclusion of school on Monday. Logically, to me, the commencement of school makes more sense.
In terms of the school holiday time, as I have indicated, the father had not proposed any specific block holiday time in term 4. Accordingly, I propose to make the order that he have two (2) weeks with the children as proposed by the mother. I make clear that, if this was a “slip” by the husband, it is a matter I would be willing to correct because I consider that it would have otherwise been appropriate to order that the children have equal time with each parent during the Christmas school holiday period.
In terms of restraining orders and the like, I am of the view that it is appropriate to make an order that neither party denigrate the other. And that is not a particularly controversial matter. In terms of the alcohol issue, the wife minimised her abuse of alcohol both during the relationship and subsequent to its demise. It is clear that in February 2019 (exhibit 7), the wife was messaging the husband admitting that her alcohol consumption had become “out of control” and that it had become a big part of her life and that she drank too much. The husband responded, effectively confirming that she needed to address her alcoholism and that the children were finding wine cans hidden in her handbag, witnessing her slurring, and the like.
I accept the husband’s evidence that the wife went to Country Z in early 2019, where she undertook some form of course, which included at least in part some therapy or advice or guidance in relation to alcohol abuse. Whatever name the course might have had is irrelevant. There was clearly a “management of alcohol” component as set out in the wife’s email to the husband early 2019.
I also accept the husband’s evidence that, on an occasion in mid-2019, Ms M was staying with the wife; that the wife had been drinking; and that Ms M rang the husband in an upset state. The wife abused the husband over the phone. She was clearly intoxicated at the time and the husband sent his stepfather over to collect Ms M.
The wife says that these issues are in the past, that she now only drinks two (2) or three (3) ciders every second weekend on a Sunday afternoon. She denies consuming alcohol to excess for a long time. For the purpose of that evidence, she defines the word “excess” as a person having “impaired judgement or behaviour or being unable to drive, especially when they have the children”.
The parties do agree that there ought to be an injunction in relation to alcohol use and I should say in this regard that it is common ground that the injunction should bind both of them. The wife accuses the husband of abusing alcohol on occasions as well, which I am satisfied also occurred, though not to the extent that the wife abused alcohol.
I have come to the view that an injunction is appropriate that I will address the parties about shortly.
Given the complaints made about the husband’s use of illicit substances, which I accept, I also consider that an injunction ought to be made in that regard. I also note that I am not strictly bound by the parties and that any such injunction does no more than simply enforce the general law in terms of criminal behaviour.
CONCLUSION & ORDERS
I propose to turn then to the parenting orders I will make and address any specific machinery matters as I go along.
The husband had proposed that he have an input into decision-making. I consider that this would be less workable for the children and not in their best interests. I prefer and am satisfied that the order I propose to make will work better for the children while still keeping the husband informed of what is going on.
It is agreed that, during the end of terms 1, 2, and 3 school holidays, the husband should have the children from 9 am on the first Saturday until 5 pm on the second Sunday in even-numbered years and from 5 pm on the second Sunday until 5 pm on the third Sunday in odd-numbered years. That is what I propose to order as being manifestly in the children's best interests.
In relation to telephone communication, I note that the husband sometimes confiscates Y's mobile phone at night and that the wife then has trouble speaking to him. In my view, the husband needs to strike an appropriate balance here and I propose to say no more than that.
As for the alcohol injunction, this specific injunction is not intended to limit the right of either parent to make other appropriate care arrangements pursuant to s 65DAE of the Family Law Act if the parent intends to consume alcohol. That is to say, if a parent intends to have a few drinks so that they cannot drive, then that parent can make appropriate arrangements for someone else to look after these children. It is not the Court’s role to run a “nanny State” nor is it the Court’s role to grate against the provisions of s 65DAE of the Act, except to the extent necessary in the best interests of the children. In my view, the alcohol injunction I propose to make strikes an appropriate balance and is superior to the proposed injunctions proposed by either party.
In terms of passports and international travel, the husband sought a raft of orders which I broadly agree with. There is no value in leaving these parties to have to argue about overseas travel and passports on a future date and, again, section 60CC(3)(l) looms large.
Broadly speaking, many of the orders are machinery-type orders in nature. And really, they require little or no elaboration. As I indicated, the parties were overwhelmingly in agreement about what is best for these children, and it is primarily just a matter of relatively small details, in my view, that remained in dispute.
PART II – THE PROPERTY SETTLEMENT PROCEEDINGS
THE LAW
I begin by observing that the Court can only make an order if it is “just and equitable” to do so and that the usual process is to:
·firstly arrive at a Balance Sheet;
·secondly, consider whether it is “just and equitable” to make any order;
·if so, then thirdly identify and assess the parties’ contributions;
·fourthly, identify and assess any relevant “future factors” set out in section 75(2) of the Act, including any relevant matters arising pursuant to section 79(4)(d), (4)(f) and (4)(g) of the Act; and
·lastly, the Court has to consider the effect of its findings and proposed orders so as to satisfy itself that any property settlement order proposed to be made is a “just and equitable” one.
THE BALANCE SHEET
There were quite substantial disputes. The wife’s proposed Balance Sheet was exhibit 12, although this was largely abandoned in closing submissions when Mr Graham essentially referred to the husband’s Balance Sheet contained in Mr Bateman’s Case Outline Document. That Balance Sheet had itself been updated in the course of the hearing.
There are various disputed Balance Sheet items, and I will asterisk those in the written reasons that will follow on from today. Having considered the evidence and submissions, I have arrived at a Balance Sheet that I will now set out. I want to be clear in saying that I have ignored cents as being de minimis and a distraction more likely to cause calculation errors than help anyone. I have rounded figures off to whole dollar amounts. That may mean that the numbers I arrive at are a few dollars different here and there from what the parties have used. But that is again de minimis.
BALANCE SHEET
Assets
Description Wife’s value Husband’s value Value adopted 1 H: C Street, Town D Agreed Agreed $1,100,000 2 Jt: E Street, Town F Agreed Agreed $700,000 3 Jt: Maples Pty Ltd
(trading as G Company)Agreed Agreed $870,000 4 H: H Pty Ltd (trading as J Company) Agreed Agreed $450,000 5 Maples Pty Ltd Westpac Business Account # …49 Agreed Agreed $NIL 6 Maples Pty Ltd Westpac Cash Reserve Account # …57 Agreed Agreed $NIL 7 H Pty Ltd ANZ Business Extra Account # …03*** $152,291 (as at 19/07/19) $NIL $NIL 8 Jt: Westpac Offset Account # …25 (closed) – E Street, Town F*** $369 (as at 1/5/19) $NIL $NIL 9 Jt: Westpac Choice Account # …09 (closed)*** $2,345 (as at 5/7/19) $ NIL $NIL 10 H: Westpac New Offset Account # …47 (closed) – Town D property*** $336 (as at 25/6/18) $NIL $NIL 11 H: Westpac Old Offset Account # …49 – Town D property*** $6,861 (as at 18/6/19) $NIL $NIL 12 H/Maples Pty Ltd: Motor Vehicle 1– in W’s possession*** $47,050 (15/9/22) $NIL (incl in item 3 at $55,000) $NIL 13 H: Motor Vehicle 2 *** $17,475 (15/9/22) $6,044 (“depreciated”) To be sold 14 H: Motor Vehicle 3 Agreed Agreed $2,975 15 H: Motor Vehicle 4 *** $8,200 $8,600 $8,600 16 W: Car parts & excavator (sold by her)*** $NIL $17,000 $17,000 17 Jt: Insurance claim payout for Town D*** $NIL $75,000 $NIL 18 H: add-back $ deposited to Ms P’s a/c by H or by Maples Pty Ltd prior to purchase of AA Road, Town F*** $60,453 $NIL $60,453 Assets subtotal: $3,300,000+ net sale proceeds of item 13 (Motor Vehicle 2) Liabilities
Description Wife’s value Husband’s value Value adopted 19 H/H Pty Ltd: ANZ Business loan # …89*** $22,932 (as at 8/7/19) $NIL $NIL 20 H/Maples Pty Ltd: Westpac Business Choice Visa Card #...78*** $4,887 (as at 25/7/19) $NIL $NIL 21 Jt: Westpac home loan #...02 (Town D) Agreed Agreed $173,555 22 JT: Westpac home loan #...00
(E Street, Town F)Agreed Agreed $360,241 23 H: Loan payable to Maples Pty Ltd *** $113,000
$197,000
$197,000 24 W: loan payable to Maples Pty Ltd *** $62,000 $51,000 $51,000 25 Jt: Outstanding bills*** $52,710 $ See below $52,710
26 W: reimburse joint payments by H either personally or though G Company)* $ See below $179,454 $179,672 Liabilities subtotal: $1,014,178
Superannuation
27 H: Super Fund 1 - accumulation Agreed Agreed $177,751 28 W: Super Fund 2 – accumulation Agreed $43,000 Superannuation subtotal: $220,751 Net assets inc. superannuation $2,575,101+ net sale proceeds of item 13 (Motor Vehicle 2)
In relation to Item 5, a Maples Pty Ltd Westpac account #...49, it is agreed that it has no value as it is included in the business valuation of Ms U. The same applies to Item 6, which is a Westpac account of Maples Pty Ltd ended #...57.
The same observation can be made for Item 7 - the H Pty Ltd ANZ Business Extra account #...03 – it is included in the business valuation. The wife had contended that the account should be valued at $152,291 as at 19 July 2019, being a figure which I do not profess to fully understand, much less rely upon. The inclusion of that figure would be a double-count in my view, and I regard it as having $NIL value.
In relation to Item 8, the joint Westpac account #...25, the wife advocated for a figure of $369 as at 1 May 2019. The husband proposed that the value should be $NIL and I accept the husband’s submissions in this regard. It is an old balance. It is de minimis. The monies are no longer there, the account is closed.
Item 9 was a joint Westpac Choice account #...09, also closed. The wife contended for a value of $2,345 as at 5 July 2019. The husband contended for a $NIL value. Again, those monies are gone and have been spent and I do not propose to give them any value. So I value them at $NIL.
In relation to Item 10, the husband had a Westpac New Offset Account #...47 for the Town D property. This account is closed. The wife contended for a historic balance of $336 as at 25 June 2018. I think she means 2019. I value that at $NIL. It is de minimis and the monies are gone.
In relation to Item 11, the husband had a Westpac Old Offset Account #...49 for the Town D property. The wife contended for a value of $6,861 as at 18 June 2019. The husband contended for a $NIL value. Again, the monies have been spent and I do not include those in the Balance Sheet. I should be clear in saying that, even though these monies may be spent, they are nonetheless relevant to the contributions assessment to which I will turn later.
Item 12 is Motor Vehicle 1 in the wife's possession. The wife contended for a value of $47,050. I do not know where her figure comes from. The husband contended for a value of $NIL on the basis that its value was included in the business valuation of Maples Pty Ltd. I agree with the husband and treat it as $NIL (otherwise it would be a double-count). I should however say that its true value is $55,000 as set out by Ms U in her valuation report and, as the wife seeks to retain the Motor Vehicle 1 at settlement, I will when I make orders be ordering that the vehicle go to the wife for that $55,000 figure.
Item 13 is Motor Vehicle 2. The wife contended for a value of $17,475. She agreed that the Motor Vehicle 2 was the husband’s project car and said it was already complete. The husband contended for a value of $6,044.
The parties are patently a long way apart in terms of the value of this vehicle. And my view is that, rather than attempting to arrive at a value that is controversial and for which there is no real evidential basis from either party, the appropriate cause is to order that it be sold. My orders will provide for sale in that regard. The parties can “put their money where their mouth is” in terms of the value of this vehicle or, perhaps, they will agree that one or the other can keep it for an agreed figure.
Item 15 is a Motor Vehicle 4. The wife valued it at $8,200. The husband valued it at $8,600. The husband can keep that vehicle in my view at his value of $8,600 and that is the figure that I adopt.
Item 16 are some parts and equipment sold by the wife. The wife puts the figure at $NIL. The husband puts the figure at $17,000.
This is probably the most troubling matter in this case in terms of the wife’s credit. It is common ground that, in August 2019, the wife sold a piece of equipment which was at the Town D property. She says she sold it for $17,000 in “cash”. She said the money was used to pay legal fees, school fees, and general maintenance for the house.
She says that she told the husband she was going to pay him half of the cash when she next saw him, which I do not believe. She also said that the money was in a shoebox in the house and that, after the husband attended the home in mid-2019 - being the date of his altercation with Mr V referred to earlier - she discovered that the shoebox was missing. Accordingly her case is that the husband must have taken it.
The wife’s version of events struck me as her having the view that I had “come down in the last shower”. She said that the purchaser was “a man down [BB Street]”. When asked his name, she did not know it. When asked his exact address, she could not provide it. When asked for a receipt, none was to be seen. Moreover, the wife had never pursued the husband for repayment or for any accounting in relation to this $17,000, which one would think, if the husband had taken it, would have been the first thing she would have bitterly complained about. This is particularly so if, in fact, the wife had already told the husband that he was going to get half anyway.
I am troubled about this aspect of the wife's evidence. I simply do not believe it. Nor do I propose to give her the “benefit of the doubt” in terms of where the $17,000 actually was spent. I do not know, and I simply do not accept her evidence. Mindful of decisions such as Mezzacappa & Mezzacappa (1987) FLC 91-853 and Weir & Weir (1993) FLC 92-338, I add back the full amount.
I turn then to item 17 in the Balance Sheet, which is a joint “insurance claim payout for a burglary at [Town D]”. This is, again, a rather mysterious item in the Balance Sheet.
It arises out of an alleged burglary at the parties’ home at Town D (occupied by the wife post-separation). She says that she was away somewhere with Mr V when the house was burgled. She says there was some damage to the shed doors and that a raft of property was stolen. This included vehicles, motorbikes, jewellery, and other small items, some of which was hers, some of which was Mr V’s, some of which was property belonging to the children.
I have no idea how much money the wife actually applied for on this insurance claim. She had never troubled her solicitor by giving him a copy of the claim. All I know is that it was made on CC Insurance as insurer.
Ironically, and perhaps significantly, this is what led to the wife’s criminal charge later. That is, it appears that there was great suspicion as to the bona fides of the burglary - to put it mildly. Mr V found himself charged by Police.
In the wife's description she says “somehow, my then partner [Mr V] was charged with insurance fraud and I was charged with hindering that Police investigation in 2020”.
Mr V went to trial on the matter and was acquitted apparently in 2022. The wife indicates she is pleading “not guilty” and is awaiting a trial date in 2023. It was put to her that Mr V had orchestrated this “burglary” and that she was a willing participant, having removed items from the home in advance of the “burglary”. She denied it and I cannot make any finding. But I certainly have some reservations about what property was or was not taken at that time. And again, questions raised in Mezzacappa & Mezzacappa and in Weir & Weir loom in the background.
However, the bottom line is that I consider the prospect of the insurance company paying anything to the wife to be remote at best, so I make no allowance for it. Moreover, if the wife receives any amounts, they will include for property that apparently belongs to Mr V and the children.
(I should add here that the wife has since separated from Mr V, having re-partnered with Mr R.)
I turn then to Item 18 in the Balance Sheet. This is an add-back to the husband for money that he (or Maples Pty Ltd) deposited to Ms P’s account prior to the purchase of a home that she now has at AA Street, Town F.
I will deal with this matter in more detail later. But it suffices to make a few observations. In late 2020, Ms P signed a contract to buy DD Street, Town F. It was a home that needed significant renovation. According to all of the evidence before me, Ms P, who was notably not called as a witness by the husband in this case, clearly had modest financial circumstances. In November 2020, she received deposits to her account, totalling $47,900 just prior to the purchase, and $12,653 in unexplained deposits were made to her account in December.
The husband or Maples Pty Ltd had paid those monies. Notably, the husband did not mention any of this in his affidavit, despite the payments coming from matrimonial funds. They were clearly matrimonial funds.
Indeed, the wife contends that the husband has an interest in the property at AA Street. He may well have. But he will never admit it to this Court. I will discuss that matter later, but for now it suffices to say that, as with the $17,000 that I added back for the wife in relation to the parts and equipment, I propose to add back every dollar of what the husband paid into his partner’s account, which comes to $60,453.
On my calculation – and the parties to be fair will need to see the written reasons perhaps to better understand all of this – I arrive at an asset subtotal of $3,368,528 plus the net proceeds of sale of the Motor Vehicle 2 as yet undetermined.
I turn then to liabilities.
Item 19 is a liability of the husband or H Pty Ltd, being an ANZ business loan #...89. The wife puts its value at $22,932 as at 8 July 2019. I value it at $NIL in accordance with what the husband submitted because it is already included in the business valuation.
The same is true for Item 20, being a Westpac Business Choice Visa card ending #...78, which apparently had a balance of $4,887 as at 25 July 2019. As with item 19, I include this value at $NIL as it is all subsumed into the business valuation.
In relation to Item 23, the husband has a loan repayable to Maples Pty Ltd of, he says, $197,000. The wife says $113,000. I put it in at the husband’s figure of $197,000.
The same applies to Item 24, the wife’s loan repayable to Maples Pty Ltd, which she puts at $62,000 and the husband puts it at $51,000. And again, I prefer the husband’s figure and will include it at $51,000.
By way of overview in relation to Items 23 & 24, I accept the husband’s evidence that the company, Maples Pty Ltd, was loaning the parties $400,000 as a “reset”, and that this was a reset arrangement that was first implemented in 2017. The loan moneys would be put into offset accounts for the various mortgages they had, in order to save interest, and the moneys would then be repaid each financial year to avoid any risk of a deemed dividend arising under Division 7A of the Income Tax Assessment Act 1936 (Cth).
I accept the husband’s evidence that the loans were repaid each year between 2017 and 2019, and that the problems emerged only thereafter, which was post-separation. In relation to these particular items in the Balance Sheet, the husband’s figures are the more up-to-date ones, which is why I adopt them. The wife’s figures are based on the valuation report of Ms U of 30 June 2021, which is a year older.
I accept that the husband has had full control over the relevant company accounts and that the wife has not signed any documents since separation, but I also accept the husband’s evidence that substantial funds, the subject of the Division 7A liability or potential liability, were used to meet significant joint expenses after separation. I also note the advice of Ms U that minimum repayments must be made annually in relation to these loans, and that the loans must be repaid within seven (7) years.
Item 25 of the Balance Sheet relates to unpaid bills. The husband sought an allowance of $52,710. The wife agreed with some of the bills, but not all of them.
In summary, and by reference to exhibit 26, I have arrived at this conclusion: namely, that the husband should receive a full allowance for all of these unpaid bills.
In particular, he incurred boundary fence expenses of $8,300 in relation to E Street. I accept he did not consult the wife, but this expenditure was reasonable and necessary, and I consider it ought to be allowed. There are Council Water Rates and Council Land Rates totalling $5,046 and $9,106 respectively. These are, again, reasonable and appropriate liabilities. Indeed, the wife conceded that the Council Land Rates figure could be allowed, but she should have conceded both. There was a further Land Rates liability of $6,737 which in my view the wife appropriately conceded.
In terms of school fees, the wife conceded the O School fees for Y, but she would not concede the N School fees. Y’s fees were approximately $10,000. N School fees were approximately $13,000. The “apex” - if I can call it that - of the wife’s argument is that she was not consulted about the children going to N School. But both Ms M and X have gone attended there for some years now and, in my view, again it is entirely appropriate to allow such figures. The wife’s children, and by extension the wife, have gained the benefit of that education and I consider it is entirely appropriate to allow all of the figures sought by the husband.
Lastly then as a liability in the Balance Sheet is Item 26, which was effectively a “late breaking item” at the end of the hearing. It relates to joint post-separation payments made by the husband, either personally or through G Company. Such figures are set out in exhibit 26 in quite some detail. The husband makes a claim totalling $179,672. The figure he in fact claims is $179,454 but I have checked it more than once and there is clearly a mathematical error, and the correct figure is $179,672.
The wife accepts that some small portion of this amount should be allowed.
I have allowed the amount in full at $179,672. By reference to exhibit 26, and noting that the wife conceded that the figures were accurate and the only real debate was whether she ought to share in them, I make these observations:
·there are various expenses concerning E Street. This is a partially completed home which has a slab and framing which is in a deteriorating state. There is a pool and some fencing: see exhibit 3. All of the husband’s claims, in my view, are appropriately related to this property and are appropriate and reasonable expenses for him to incur. He had to incur temporary fencing costs. I allow the swimming pool fees. I accept the husband’s evidence that he had to get the pool shell installed when he did as one of the neighbours had “built them in” on one side, and the other neighbour was about to build, and there was no rear access to their property due to a nature reserve. In my view, the husband was entirely appropriate in going ahead and putting that pool in, in accordance with what had been the parties’ original plan in any event;
·the husband met various other expenses: EE Company, Council Water Rates, FF Company, as well as a valuation fee conceded by the wife, and mortgage payments totalling $88,773. I allow all of these expenses;
·in relation to the Town D property, the wife had been occupying it from separation, but ceased paying the mortgage in February 2022. The husband has paid $11,195 in mortgage payments, and the wife conceded that figure. He has also paid valuation fees of $2,190 which the wife conceded. In my view, these figures are appropriate allowances and it is appropriate to allow these figures in full;
·in terms of school fees for the children, again there is an argument about N School. The wife conceded that it was appropriate to allow for the school fees, except for $1,500 relating to Ms M’s school fees at N School, her complaint again being that she had not been consulted. For the reasons I have already given earlier, I consider that such fees should be allowed for in full;
·the wife conceded that there were various fees for settlement calculations, consisting of expert valuations, etcetera, at $41,356. That figure is also included, although it might more accurately be referred to as being more in the nature of a costs claim, because orders of an interim nature made earlier in the proceedings had provided for the parties to share in the costs of such valuations.
As for superannuation, the agreed figures were the husband’s up-to-date figures, being $177,751 (his) and $43,000 (the wife’s).
IS IT JUST & EQUITABLE TO MAKE ANY ORDER?
I turn then to the question: “Is it just and equitable to make any order?”
Both parties contended that it was, and I agree with them. It suffices to observe that the assets the parties have acquired over the course of their marriage now need to be divided between them. The parties can no longer enjoy the common use of their assets, particularly the business interests of the husband, which he now controls, although the wife retains a significant shareholding.
The parties disagree about how their property should be divided and what the form of order should be, but there is no serious contest that the making of an order of some form would be just and equitable.
ASSESSMENT OF CONTRIBUTIONS
INITIAL CONTRIBUTIONS
The parties commenced a relationship when both were teenagers. Indeed, the wife was still at school.
In 2000, the husband moved to Sydney to do his apprenticeship, and the wife followed at the end of the year. Neither party really owned anything when the relationship started.
CONTRIBUTIONS DURING THE RELATIONSHIP
By way of overview:
·the husband was the primary breadwinner throughout;
·the wife was the primary parent and homemaker throughout;
·the wife did however, also do some work for the family business, as well as engage in some external employment from time-to-time;
·in the same way that the husband also helped with care of the children from time-to-time;
The husband and the wife disagree about numerous financial matters. This includes basic and simple things such as the purchase price for businesses or homes - matters, I might add, that could easily have been proven by someone producing to the Court an objective document. They disagree about money that was provided by the husband’s family and how that money was repaid or not repaid. I should add here that when I refer to the husband’s parents, I am referring here to the husband’s mother and step-father, just to avoid confusion. I am simply going to call them his “parents” for convenience.
I cannot rely on either party in this case to provide the Court with a full and frank picture of their financial position, although my concerns about the husband in this regard are much greater - largely because he has had the opportunity to behave in a more secretive manner than the wife has, and particularly given his control of the business.
Each of the parties has been somewhat selective in how they remember things.
The husband did not call his parents to corroborate various gifts or loans, and he could have done so. One particular example where it may have been of assistance was that he says his parents paid $130,000 to him to enable him to buy the G Company business. The husband’s affidavit called it a “gift” - but he accepted in the witness box that those moneys had been fully repaid within a few years. While that nonetheless contributes a significant contribution, there is a real difference between a gift that is not repaid and an interest-free loan. Indeed, weighing all of the evidence in this case, I am satisfied that every reference the husband makes to a “gift” from his parents was, in fact, an interest-free loan.
As will become apparent, the husband’s financial relationship with his parents is somewhat opaque, in much the same way as his financial relationship is with Ms P.
During the relationship, I also note that the husband was a regular cannabis user, and the wife leaned heavily on alcohol at different times.
In 2003, the parties bought their first home at GG Street, Town HH, for $180,000. I accept that the husband’s parents gave them an interest-free loan of $15,000 and that the husband obtained the First Home Buyer’s Grant of $7,000. The parties borrowed the rest of the purchase price. The home was purchased in the husband’s name and rented out.
In 2004, the wife moved to Town HH with young Mr L. She lived with the maternal grandmother for a period, and did some part-time work, while the husband remained behind in Sydney. The husband later obtained a job at JJ Company in Town HH, and the parties moved into a flat owned by the mother’s grandmother in 2004. They did not have to pay rent, but helped with domestic tasks and contributed to utilities bills. They paid for their own groceries and household supplies.
The parties married in 2004 and, later that year, evicted their tenants at GG Street, Town HH, which they then renovated.
They moved into the husband’s parents’ home in 2005, before moving into the Town HH property in 2005.
Ms M was born in 2005.
Life was not particularly easy for the parties around 2006, when the husband’s then-employer went into administration and, for some three (3) months or so, the husband was unemployed. The wife was working nights. Ms M was suffering separation anxiety, and I accept that life was pretty tough for the family.
In 2006, the husband obtained work with KK Company in Town HH, and it was in mid-2007 that they then purchased the property at C Street, Town D. They do not agree on the purchase price, which was either $225,000 or $250,000 although perhaps it does not make any real difference in the matter.
But it is agreed that the property was not habitable. It had no working plumbing or electricity. It was badly run-down. Again, the husband’s parents “gifted” $15,000 to the parties, and they borrowed the rest. Once again, the property was placed into (purchased in) the husband’s name.
Over the next several months, the parties lived with the maternal grandmother while renovating the Town D property. The husband engaged tradespeople and receiving trade discounts. The husband’s parents gave them (interest-free loan) another $25,000 to help them along the way with the renovations. The wife was undertaking hospitality work to help with the family income, and the maternal grandmother was caring for the children.
It seems that the parties underwent a separation in late 2007. The husband says they separated for three (3) months, and that he took time off work to care for the children. The wife says that they separated for about three (3) weeks. I prefer the wife’s evidence in this respect. I do not accept the husband would have had three (3) months off work.
In 2008, the husband’s employment failed, through no fault of his. The parties decided that the husband should obtain a sole trader licence so that he could set up his own business or conduct work himself as a subcontractor. He went to City LL to work for a company for a time, and was generally away from home for about five (5) or six (6) nights per week.
In the meantime, the parties moved into the Town D property. In 2008 of that year, they sold the Town HH property for $188,000 or $198,000, depending on which party is correct, and I cannot make a finding either way.
The wife says the parties netted $20,000 from the sale. The husband says that they made “a profit of $2,000”, which is somewhat ambiguous. I infer from the husband’s evidence, consistent with my other findings, that the $2,000 represented the profit by the time he had repaid his parents the money which they “gifted” them. In any event, the profit, if any, or the net proceeds, if any, were minimal.
X was born in 2009. She had health issues, requiring hospitalisation on occasions. The husband was in City LL for almost the entire pregnancy, and returned to work when X was just a couple of days old.
In 2009, the husband obtained work with G Company, and was later given the opportunity to purchase the business when its owner, Mr MM, himself went through what seems to have been an unhappy separation.
The wife had been working in administrative roles at G Company for two or three days per week, and by then Y had been born in 2012. He, too, like X, had some health issues, sometimes requiring hospitalisation.
The parties negotiated the purchase of G Company as a going concern, either for $250,000 or $255,000, depending on which party is correct. The husband’s parents made the $130,000 interest-free loan that I have referred to, which the husband described as a “gift”, and they borrowed the balance from Westpac.
By agreement, the husband held 45% of the shares, the wife 45% of the shares and the husband’s parents held the other 10% between them. The business was successful. The loans were repaid within a matter of a couple of years. The husband was also able to hire his brothers to work for the business as well.
They successfully tendered for a number of different jobs and G Company had a number of different major customers. Things were going well for them.
In 2015, the parties undertook some renovations to the Town D property.
In 2016, they had the opportunity to purchase a business in Town HH for $50,000. They later changed its name to J Company. In a sense, it works hand-in-hand with G Company. It is effectively a related entity.
In late 2016, the relationship between the parties seems to have spiralled. The husband told the wife not to come to work at Maples Pty Ltd anymore and to get a job somewhere else. For the time being, he still paid her $500 per week, but warned her that these payments were going to stop. The parties separated and the husband moved out into a rental property.
While separated, the parties then implemented an equal time arrangement for the children. The husband was meeting all of the property expenses. The wife started studying, but she soon had to abandon that study.
It was during this period of separation that the husband entered into a transaction with his parents that can only be described as “murky” at best.
In 2017, the husband’s parents allegedly purchased a property at OO Street, Town B, at auction. The purchase price was approximately $190,000: see exhibit 20.
I have photographs in evidence before me showing the husband and his father standing with the selling agent in front of the sign indicating the property had sold, accompanied by a text from the husband which reads:
Look at these two proud property owners.
The only people the husband could be referring to there were himself and his father.
Around this time, the husband was actively assisting with renovations at OO Street, Town B. He was secretive about it. He would not talk to the wife about what was going on.
The parties reconciled either in early or, more likely, in mid-2017, which is the husband’s version. They moved into the husband’s rental property that he had been occupying, and started to rent out the property at Town D as a bed-and-breakfast for approximately $500 per night. The wife did changeovers between the guests, and the husband’s brother did most of the maintenance and landscaping.
In late 2017, the parties jointly purchased the property at E Street, Town F, which was then just vacant land. They paid a purchase price of approximately $420,000, including a $40,000 deposit which came from business accounts. The wife insisted that this time around they buy the property in joint names, which they did. By then, the wife had obtained some work at PP Company, doing sales work.
The parties then had some plans drawn up for a “dream home” on the property. But in terms of the dream home, it seems that building the property at E Street never really got started in any serious way.
There are some confusing transactions and some other matters which cause the Court a degree of concern about what was really going on, particularly in relation to whether the husband’s real energy was being directed at OO Street, Town B.
In June 2017, the husband applied for a $200,000 loan from Westpac: see exhibit 20. On 21 June 2017, a deposit of $200,000 was made into his Westpac account: see exhibit 19. The wife suggested that this may have related to the purchase of OO Street, Town B, but the husband, on reflection, was quite sure that the money related to a refinance of the Town D property. According to exhibit 24, that would seem to be the case.
Nonetheless, there are concerns that this Court holds, having regard to the evidence of what was happening with the property at OO Street in particular. I accept the wife’s evidence that, at some point, she looked in the husband’s work bag and she found various files for OO Street, including architect-designed plans and some documents relating to construction and tradespeople being engaged at the property. I accept her evidence that whenever she tried to talk to the husband, he would not talk to her about it, that he told her to mind her own business and that it had nothing to do with her. When the wife spoke to the husband’s mother, who was not called as a witness, she told the wife that she didn’t know and that the wife “had better check with [Mr Maples]”.
This evasiveness on the husband’s part may be innocent, but it certainly is a matter that causes trouble in terms of the Court assessing his credit and whether he actually has some form of interest in that property or, otherwise, is not making full and frank disclosure.
The wife successfully applied for employment at QQ Company and she effectively started working there in 2018. She obtained tertiary qualifications.
On 21 March 2018 (exhibit 24), the husband transferred a sum of $200,000 from a Westpac Offset account to a Westpac Choice account. It is entirely unclear to me what this relates to, and I am unsure what, if anything, the husband was doing with that money.
POST-SEPARATION CONTRIBUTIONS
I accept the husband’s evidence that by March 2019 the wife was drinking heavily. The parties separated that month, and the wife moved into the property at Town D, while the husband stayed living in the rental property. As I have already indicated, the husband initially had primary care of the children while the wife was overseas for a brief period.
Post-separation, the wife crashed Motor Vehicle 1 which she had retained. The husband suggested in his evidence that the wife had been drink drinking, which I consider to be a real possibility. In any event, she was charged with negligent driving, Police being unable to breath test her in the requisite timeframe. And I accept the husband’s evidence that the vehicle had to be repaired at a cost of $12,000, with a $2,000 excess which effectively was paid out of the business.
In May 2019, the same month, the husband attended the Town D property when the wife was at work. At that time, he took Motor Vehicle 4. He advertised it for sale for $45,000, and later told the wife it had been sold for $20,000 and that he would transfer her that money in coming days. He said he had sold it for $20,000, as he was desperate for money.
I have grave reservations about whether the husband sold the vehicle or whether, if he did in fact sell it, that he netted $20,000 as he claims. Having said that, the husband did say in his evidence that he could produce a Bill of Sale to confirm what had happened and that he had paid $8,600 in joint debts out of the sale proceeds, and the wife’s counsel did not cross-examine him about such Bill of Sale.
In August 2019, the wife sold the equipment for $17,000 as referred to earlier and I will not repeat myself about that.
Some time around this period, the husband transferred over $400,000 out of a joint account which, following an inquiry from the wife’s solicitor, was then promptly returned to the account. I have no idea what this relates to, but it seems most likely that it related to the Division 7A loan and to the $400,000 moneys being moved about in that regard. I am not convinced that that is so, but this seems the most likely scenario. As I have indicated, I have reservations about the evidence of both parties, and particularly the husband.
The wife says that in late August 2019/early September 2019, but at any rate after this altercation between the husband and Mr V, that the husband and various other men attended the Town D home and removed all of the vehicles from the garage, together with extensive hand and power tools, gardening equipment, motorbikes, a firearm safe which contained most of the wife’s jewellery, as well as other items from inside the house. The wife claims later to have observed and photographed numerous clothing items of Mr V, which she said had been smeared with grease and dirt.
Unsurprisingly, the husband’s version is different. He says that on 4 September 2019 he attended the home - when the wife was not there, I might add - and that he noticed several missing items, including a piece of equipment which he said had been bought for $19,000. This is the same equipment as I have referred to earlier. He says that other missing items included some components for Motor Vehicle 2 that he said he was building with Mr L, which had been purchased for $35,000.
The husband says that a few days later a neighbour told him that “everything at the home” was being sold off, so he went back again:
…and collected what was left before those items went missing.
The husband’s version is sufficiently vague, and I have photographs corroborating the grease and other smearing of a male’s clothing, which I infer to be Mr V, that, on balance, I prefer the wife’s version. That is to say, the husband went to the home and removed numerous items. He did so when the wife was not there.
It is quite unclear to me exactly what the parties had stored in the shed. The wife says that they were three (3) Motor Vehicles in total, Motor Vehicle 4 (being the vehicle I have referred to earlier), another car which she does not specify, six (6) motorbikes, two (2) boats, a tinnie, significant tools, equipment and machinery. The husband admits in his Financial Statement that he has one (1) motor vehicle, (which he says is for parts), one (1) boat, five (5) motorbikes, and he says that he sold two (2) motorbikes and Motor Vehicle 2.
It is impossible to reconcile exactly what was in the shed and what the husband took.
I accept that in early 2020, the wife says her home was burgled, which I have referred to earlier and I will not repeat myself.
In relation to Ms P, as I have indicated, the husband re-partnered with her and started living with her in around early 2020. It is quite clear that he was financially generous to her, to put it mildly.
In mid-2020, the husband posted on social media that he had bought Ms P a motor vehicle, which, in my view, was purchased with matrimonial funds.
I turn then to AA Street, Town F, which I have already touched upon.
In late 2020, the husband posted photographs on social media depicting Ms P as buying this property at AA Street. It was purchased for approximately $400,000. In addition to the $60,453 the husband paid into her account later that year, which I have referred to in the Balance Sheet, the husband also paid what he describes as a “holding deposit” of $41,500. This money either came from Maples Pty Ltd or from himself, but either way it was matrimonial funds. Again, one might think that the husband would have troubled to mention this in his affidavit, but alas he did not.
Exhibit 15 is the Contract of Sale of late 2020, which reveals the purchase price and that the purchaser was Ms P alone. Her address was given as RR Street, Town F, a rental property close by where she lived with the husband. The deposit was the $41,500 the husband had provided. The settlement dated was early 2021.
I have already said that Ms P had modest financial circumstances at the time. By reference to a loan application (exhibit 16), it seems that she borrowed $372,984 from the Commonwealth Bank. In the loan application, she claimed to have $30,000 in cash or savings. This is quite a significant amount of money for someone who, according to exhibit 21, had a CBA loan valued at $11,000 in July 2020 and had only paid it down to $8,264 by November of that year.
It seems clear enough to me - and I find - that any significant cash or savings Ms P had were a direct result of the husband putting them into her account. Again, I note the husband could easily have called Ms P to give evidence, and he chose not to do so.
The loan that Ms P took out, in fact, covered the discharge of this relatively small debt ($8,264) and, notably, her stated assets included her motor vehicle valued at $50,000, which the husband, in my view, had paid for. In her loan application, Ms P said she was employee of G Company, earning $63,700 per annum.
The husband said that the holding deposit of $41,500 he had paid was, in fact, refunded to him by SS Real Estate, the selling agent, in early 2021, and that does seem to have been the case, having regard to exhibit 24.
The husband denied having any interest in AA Street. The wife contends that the husband has an undisclosed interest, and that it warrants an adjustment in her favour, in accordance with cases such as Mezzacappa and Weir & Weir (supra). The wife was able to produce Insurance company documents which, mysteriously, named the husband as an “insured person” in relation to the property at OO Street. He was an insured person for a period of one (1) year from late 2020, and again, from late 2021. Then, abruptly, in early 2022, the records of the insurance company were amended so that the insured person was Ms P alone.
The husband said he had not had anything to do with this change, and that Ms P had done so.
The husband has undertaken significant work at AA Street, all the while, I might add, while the property at E Street was left to go to “rack and ruin”. His substantial works are evidenced before me.
It is clear that his work vehicle was parked there, that numerous building materials sourced through G Company, with appropriate trade discounts, no doubt, were applied to improve that property. He had removed an old pool, ripped up the bathroom floor tiles, put in decking, put in a spa. Even on his own admission, he said that the work he had done at the property was “substantial”.
I have as exhibit 18 various photographs which show:
·above a “Sale” sign for the property, there is a sign advertising G Company;
·a photograph of one of the husband’s work vans parked at the property;
·photographs of what are clearly substantial renovations. And I must say, the property presents much better now than it did when it was purchased. Enormous effort was put into improving a property that the husband claims to have had zero interest in.
The husband admitted that it was his intention to live at the property with Ms P. Mr Graham put it to the husband that he was doing substantial work there, while letting E Street go to waste.
The husband was asked whether he had chosen not to do anything at E Street to improve the property, in case it affected the wife’s property entitlements. The husband answered that that thought “did not cross his mind”. Absolutely, it did. It was at the forefront of his mind in my view. The husband has been putting substantial effort and energy into AA Street, including the benefit of money and other funds through the business.
The husband was adamant in saying that he only paid for some property outgoings, such as Rates, and was otherwise paying “rent” to Ms P of $300 per week. He was adamant that she pays the mortgage for the property.
According to exhibit 21, Ms P borrowed another $70,000 as a top-up loan in early 2022, increasing the loan from $364,000 to $435,000. The husband said that he had not discussed that top-up loan with her. I do not accept his evidence.
I consider that it is highly likely, indeed probable, that the husband has an undisclosed interest in the property at AA Street [1] which he is actively seeking to conceal from the wife and from this Court.
In terms of C Street, I have already indicated that the wife has been living there and paying the mortgage for the property up until February 2022, after which the husband took over the payments. I accept the wife’s evidence that the property is somewhat run-down. It has various problems with water leaks, decking that needs repair and an unsafe pool area. There are plumbing and gas issues. She has been struggling to maintain the property.
In relation to Motor Vehicle 1, the wife has been paying for registration and insurance. Maples Pty Ltd has been paying Fringe Benefits Tax which, in turn, is added to the wife’s Division 7A loan.
The husband has been paying the mortgage and indeed the bulk of the real property outgoings, and I have already made allowance for that in the Balance Sheet, so I must not double-count it.
In terms of E Street, this remains in a somewhat sad state and incomplete state. I have already accepted that the husband has been meeting the expenses for that property, and I will not labour the point.
There was significant dispute between the parties about child support appears. It suffices to say that I was burdened with numerous Notices of Assessment and other correspondence, but the upshot of it all seems to be that the husband is in arrears, apparently, of around $10,261. As at September 2022, he was assessed to pay $606 per month to the wife, together with a “backpay” of $250 per month going forward. The child support assessments I have fluctuate fairly wildly, essentially depending on the husband’s estimate of income. They run from as low as $21.25 per month, based on an income of $68,828, and they range as high as $997.58 per month, contingent upon his income being provisionally assessed at $122,459.
I do consider that the husband has been paying significant money towards the upkeep of the other properties, however, and it is a little artificial to isolate child support in this way and to accuse the husband of being “recalcitrant”. I do not propose to dwell on child support issues beyond observing that I am satisfied the husband will do all he can to minimise his child support obligations, and he has that distinct advantage over the wife in that he conducts his own business.
In terms of parenting issues, I have already addressed the circumstances in this respect concerning Ms M, who has lived primarily with the mother, as well as X, who has done likewise, and Y, who has lived equally between the parties. The wife has undertaken more of the parenting duties in this respect.
There was a recent “breaking change” (my expression) in relation to Mr R, when it emerged that the wife had recently signed a contract to purchase a property with him at OO Street, Town B. Rather than the wife being “on the front foot” about this issue, it was the husband’s solicitors who wrote to her solicitors on 3 March 2023 seeking disclosure, ahead of what would have otherwise been closing submissions: see exhibit 22.
The wife then provided a proof of evidence and an annexed Contract: exhibit 23. Pursuant to the Contract, the purchase price was $869,000, the deposit was $86,900 and the completion date was mid-2023. The wife said that Mr R had paid the deposit, but had only paid half, that is $43,450. The wife said her plan was to borrow 95 % of the purchase price with Mr R, and that ideally they would own the property as tenants-in-common in equal shares.
It is unclear to me whether the Contract has proceeded to completion, but it suffices to say that there is clearly a significant financial relationship and financial support being provided, one would think, by both the wife to Mr R and vice versa. It is the wife’s plan to live with Mr R in that property, if the settlement (ie. Contract completion) goes ahead. She said that she and Mr R have discussed a Binding Financial Agreement but have not entered into anything yet.
OVERALL ASSESSMENT OF CONTRIBUTIONS
Overall, when I weigh up and assess contributions, the wife submitted that they ought to be assessed 55 % - 45%, in her favour, based largely on the murky circumstances of the husband, particularly concerning 271 AA Street and perhaps also OO Street, owned by his “parents”.
The husband submits that a 50 / 50 assessment is warranted, or perhaps slightly more to the husband, on account of his post-separation contributions as well as issues of the wife’s alcohol consumption.
I have already allowed for the husband’s significant post-separation contributions in the Balance Sheet on a dollar-for-dollar basis, and I cannot double-count those.
Overall, considering contributions in this case, I would assess contributions towards the non‑superannuation pool as being 50 / 50. I would also assess contributions towards the superannuation as being 50 / 50 as well. I do not consider that the wife’s use of alcohol in any serious way makes a difference to the contributions assessment, nor the husband’s use of cannabis. To the extent that the husband’s family paid some money to help the parties on an interest-free basis, I also take account of the wife acting as primary carer for the children throughout. In truth, a 50 / 50 contributions assessment, in my view, is appropriate.
For practical purposes, I arrive then at a contributions conclusion whereby the non‑superannuation of $2,354,350 would be divided equally between the parties, that is they receive $1,177,175 each, together with sharing in the sale proceeds of Motor Vehicle 2, together with splitting the superannuation so that it is equalised as between the parties.
RELEVANT FUTURE FACTORS
I turn, then, to future factors under section 75(2) of the Act, and I make the following observations.
Both of these parties are in good health. Both of them are in employment. The husband is self‑employed.
Both parties earn a good income. The husband has real advantages over the wife because his business income, though variable, can, in a sense, be diverted in tax-effective ways and in other ways that might be effective as well for child support purposes. Such things as being able to hire his partner and pay her a reasonably generous income is just one example. He also accepts that he obtains trade discounts. The wife does not have any of those benefits.
The husband’s income, according to his Financial Statement, is $1,320 per week, and his expenses are $1,530. When I add in ‘Part N’ of his Financial Statement, he is living well and truly “in the red”, which belies his circumstances, namely, for example, his observation that he had been able to buy Motor Vehicle 5 for $56,000, albeit that it came from the work account.
There is much to be said, in Mr Graham’s submission, that Maples Pty Ltd acts, in a sense, like a “private piggie bank” or a “private bank” for the husband. Although, of course, that being said, the husband has to ensure that the company is solvent and that it is able to meet its liabilities, and he also has to deal with potential looming Division 7A issues, if they arise.
I simply do not consider that I know the husband’s true financial circumstances. He ought not to get the benefit of that.
Likewise, the wife’s Financial Statement says that she earns $1,800 per week, plus $180 in Family Tax Benefits. She says her expenses are just $795, but when I look at ‘Part N’, which has not been completed properly, it seems that her weekly expenses come to something like $2,337. She has $60 in the bank and seems to be living week-to-week.
I suspect that the wife’s financial circumstances are somewhat exaggerated, in that she would have gone backwards, if not into bankruptcy, on those sort of numbers, so it is likely that her partner is providing her with some financial support, particularly given the nature of their relationship. But again, I have not been provided, really, with any disclosure in that respect, and she should not obtain the benefit of that.
In terms of Maples Pty Ltd, it is clearly a solid asset. At trial, the husband accepted that it had $300,000 in “cash reserves”, as well as $100,000 sitting in an account to offset a business loan for a new production machine. But I do accept the husband’s evidence that he needs to update and replace equipment, and motor vehicles as well.
The wife has care of the two children, X and Y, for most of the time. The husband will do whatever he can to minimise his child support going forward. And I fully expect these parties will end up causing “no end of headaches” for the Child Support Agency before these children have reached the age of 18.
The husband has the responsibility for baby Q, as well as supporting his partner, who, as I indicate, is on maternity leave.
Each party, in my view, has a reasonable standard of living and will certainly have a reasonable standard of living as a result of orders that I propose to make.
The husband has the benefit of the ongoing business and all of the other advantages that flow from that.
I do not propose to make orders that will affect the capacity of any creditor to obtain payment.
The wife has significantly contributed to the husband’s earning capacity through the family support she has given to the children over the years. In the same way, the husband has contributed to the wife’s earning capacity as well, she having obtained the qualifications for her present role during the marriage.
The husband’s circumstances and the wife’s circumstances are both somewhat opaque for reasons that will be obvious, but I am much more concerned about the opacity in the husband’s circumstances than about the opacity in the wife’s circumstances because, put simply, he has had access to a lot more money than she has, and that will continue into the future by reason of the business.
The wife says that she ought to be given another 5% of the non-superannuation assets, on account of the husband retaining Maples Pty Ltd, described as being like a private bank. Additionally, it is also contended that the husband’s interest, or undeclared interest, in OO Street and/or other financial non-disclosure warrant an “uplift” to the wife.
The husband says there should be no adjustment for future factors whatsoever, and that each party is capable of and, indeed, is actually working.
In my assessment, the husband’s financial circumstances loom large, especially with the benefit of Maples Pty Ltd. I have already expressed my significant scepticism and concerns in relation to OO Street. I have expressed my concerns about the husband’s attitude towards paying child support, and I have expressed my concerns in relation to the husband having a possible interest of some kind in OO Street, owned by his “parents”.
But the wife has also not been entirely full and frank with the Court, and I have concerns about her as well.
Weighing all of these matters together, and noting authorities such as Mezzacappa & Mezzacappa and Weir & Weir (supra), I am of the view that the appropriate course is to provide an uplift to the wife of the non-superannuation property only, limited to 3%. This reflects, in my view, these particular matters, and particularly the husband’s greater access to money and the greater capacity, if you like, to hide it from the wife, than she has had the opportunity to do from him.
Accordingly, I arrive at a conclusion that the non-superannuation property ought to be divided 53% to the wife and 47% to the husband, with the superannuation property left divided equally.
In practical terms, the wife would receive $1,247,805 in non-superannuation property, and the husband $1,106,545, with the superannuation to be equalised.
A “JUST & EQUITABLE” OUTCOME?
Is this a just and equitable outcome?
I consider that it is, in what is a difficult case involving a great many disputed facts and allegations and counter-allegations.
CONCLUSION & FORM OF ORDER
I turn, then, to the form of the order.
Both parties agree that the wife should retain the Town D property and the husband should have the property at E Street. They both agree the wife should keep Motor Vehicle 1, but I have to be careful to deduct its value from the value of Maples Pty Ltd, which the husband, otherwise, will be retaining by agreement. He will also be retaining the J Company business.
The husband wants to retain either Motor Vehicle 2 or Motor Vehicle 4. He can keep Motor Vehicle 4. If he wants to buy Motor Vehicle 2, he can do so, as I have indicated earlier, or perhaps the parties can reach agreement about that and simply agree on a value with an appropriate adjustment.
On my calculation, to recap, the wife’s entitlement to the non-superannuation is $1,247,805. The husband’s is $1,106,545. I calculate as follows:
·The wife holds this property: she has Town D, worth $1.175m; Motor Vehicle 1 $55,000; the parts at $17,000, less the mortgage for Town D of $173,555, means that the wife would be holding $1,073,445, if she were to retain those assets.
·The husband would be retaining E Street, worth $770,000, Maples Pty Ltd $821,000 after deducting $55,000 for Motor Vehicle 1, H Pty Ltd $458,500, Motor Vehicle 3 at $2,975, Motor Vehicle 4 at $8,600, the cash he put into Ms P’s account of $60,453, less the mortgage for the E Street property of $360,241, the Division 7A liability of the husband of $197,000, the Division 7A liability of the wife of $51,000, the outstanding bills of $52,710 and the moneys he has already paid on account of bills of $179,672. I calculate, on that basis, that he holds $1,280,905.
To recap, the wife has $1,073,445. In order for the wife to receive $1,247,805, or 55 % of the non-superannuation property, the husband has to pay her a sum of $174,360.
Purely by coincidence, and not by design, this is essentially the same as the value of the Town D mortgage, so accordingly I consider that the husband should take responsibility for all of the liabilities I have referred to, and the assets should be divided in the way I have just described, but with the husband to pay out the Town D mortgage. This “short-changes” the wife by about $1,000, which I regard as de minimis in the circumstances of this case.
Turning then to the property orders, I propose for these reasons to make the orders set out at the commencement herein.
I certify that the preceding two hundred and fifty-six (256) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 6 June 2023
[1] Upon revising my oral reasons, I note that I had erroneously referred to the “OO Street” property in this sentence when I clearly intended to refer to AA Street. Accordingly, I have made that correction.
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