Melvin & Melvin
[2018] FCCA 1847
•10 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MELVIN& MELVIN | [2018] FCCA 1847 |
| Catchwords: FAMILY LAW – Parenting settled first day of trial – property –date of separation – contributions during and after the relationship. |
| Legislation: Drugs, Poisons and Controlled Substances Act 1981 (Vic) (legislation omitted) s.22F Family Law Act 1975, ss.75(2), 79, 90MT(1)(a), 106A Family Law (Superannuation) Regulations 2001, pt.6 |
| Cases cited: AJO & GRO [2005] FamCA195 Phillips & Phillips (2002) 168 FLR 438 |
| Applicant: | MS MELVIN |
| Respondent: | MR MELVIN |
| File Number: | MLC 6111 of 2016 |
| Judgment of: | Judge Harland |
| Hearing dates: | 9, 10 & 11 April 2018 |
| Date of Last Submission: | 11 April 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 10 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Stanley |
| Solicitors for the Applicant: | Ebejer & Associates |
| Counsel for the Respondent: | Mr Goddard |
| Solicitors for the Respondent: | Robinson Gill |
ORDERS
That within 60 days of the date of these Orders;
(a)The Wife pay to the Husband the sum of $149,000.
(b)the Wife and the Husband do all acts and things and sign all documents as are necessary to transfer to the Wife at the expense of the Wife, all of the Husband’s right, title and interest in the property situate at Property A (“Property A”), and the Wife do all acts and things to refinance the mortgage secured over the property and release and indemnify the Husband with respect to the said mortgage (“the transfer”).
In the event that the Wife does not wish to retain Property A or is unable to refinance the property into her sole name the Husband and Wife shall do all acts and things and sign all documents necessary to affect the sale of the property and for that purpose the following shall apply:
(a)The parties engage (omitted Real estate consultant) (“(omitted Real estate consultant)”) to manage the sale of Property A and are to co-operate in every way with (omitted Real estate consultant) and any such real estate agent recommended by (omitted Real estate consultant) with respect to the sale price, marketing of Property A for sale including making the key readily available, allowing inspection of Property A at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer.
That upon agreement being reached for the sale of the property, the parties shall execute the Contract of Sale and all other documents necessary to complete the sale of Property A, including all transfer documentation forthwith upon its submission to them by the agent or their solicitor.
That the proceeds of sale of Property A shall be paid in the following manner and priority
(a)Discharge of the joint mortgage with the Bank A;
(b)Payment of the agent’s commission and advertising or other expenses;
(c)Payment of the legal costs and outlays relating to the sale;
(d)80% to the applicant
(e)20% to the respondent.
Pending completion of the sale or transfer of Property A:
(a)The Wife shall have the sole right to occupy the property and during such right of occupation the Wife shall be responsible for all mortgage payments, rates and outgoings of the property as they fall due up to and including the settlement date;
(b)The parties hold their respective interest in the property upon trust pursuant to these Orders;
(c)Neither party shall encumber the property without consent in writing of the other party or any mortgagee; and
Pursuant to s.106A a Registrar of the Federal Circuit Court at Melbourne shall execute in the name of either party, any deed or documents necessary to affect the transfer and/or sale of the property where a party fails to execute any documents required to comply with any Order made by the Court.
Unless otherwise specified in these Orders except for the purposes of enforcing payment of any money due under these or any subsequent Orders:
(a)Each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at the date of these Orders including any jewellery, furniture, furnishings, shares and motor vehicles;
(b)Monies standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held;
(c)Each party hereby foregoes any claims they may have to any superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation or insurance shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other;
(d)Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this Order; and
(e)If either the Husband or Wife defaults in compliance with their obligations in these Orders, then the party who is not in default shall be entitled to immediately thereafter commence proceedings against the other and shall rely on these Orders for any application for costs of the proceedings.
That these orders be binding upon the parties and their heirs, executors, administrators, assigns and legal representatives and are to continue in full force and effect notwithstanding the death of either party.
That paragraphs 11, 13, 15 and 16 of the Orders are binding on the (omitted Superannuation Board), the Trustee and Administrator of (omitted Superannuation fund) ("the fund").
That the base amount allocated to the husband in these proceedings out of the interest of the wife in these proceedings in the fund is $20,123.00 ("the base amount").
If as a result of termination of her employment the wife becomes entitled to a benefit prior to the (omitted Superannuation Board) making a payment under section 22F of the (legislation omitted) she shall provide to the (omitted Superannuation Board) all such forms as shall be necessary to enable the Trustee to determine the nature and quantum of the superannuation entitlement and any other related information it may reasonably require, within 7 days of that entitlement arising.
That pursuant to Section 90MT(1)(a) of the Family Law Act1975 ("the Act") whenever the Trustee of the fund makes a splittable payment from the interests held by the wife the Trustee will pay to the husband or his legal personal representatives the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 the base amount of $20,123.00 (provided that such base amount shall not exceed the value of the interest determined under Section 90MT(2)) and there be a corresponding reduction in the superannuation interest of Ms Melvin to whom the splittable payment would have been made but for the Order.
That there be liberty to apply to each party and the Trustee in relation to the implementation of the Orders affecting the superannuation interest.
That Order 12 has effect from the operative time.
That the operative time of these Orders is 4 business days after service of a certified court sealed copy of the final Orders on the fund.
That the Trustee of the fund in accordance with the obligations set out under the Act and Family Law (Superannuation) Regulations do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of and make payment to the husband in accordance with paragraph 12 of these Orders.
The wife serve a sealed copy of these Orders on the Trustee of the fund within 7 days of the date of these Orders by ordinary post.
Costs
In the event the wife seeks to make an application for costs she is file and serve written submissions within 28 days.
The husband is to file and serve submissions in reply within 14 days of being served in accordance with order 18.
IT IS NOTED that publication of this judgment under the pseudonym Melvin & Melvin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Melbourne |
MLC 6111 of 2016
| MS MELVIN |
Applicant
And
| MR MELVIN |
Respondent
REASONS FOR JUDGMENT
The parties resolved the parenting proceedings at mediation with the assistance of the Independent Children’s Lawyer a few weeks before the final hearing.
They were unable to resolve the financial issues between them.
The parties agree that neither of them had any assets or liabilities of any significance when they started living together. They were both young when they started living together.
The issues that I have to determine are as follows:
a)assessing the parties’ contributions during their relationship;
b)whether or not the parties separated on 28 December 2014 or in January 2016;
c)the assessment of the parties’ post separation contributions;
d)the relevance or otherwise of the value of the former matrimonial home as at the date of separation assuming that the wife’s separation date was accepted;
e)the competing tensions when considering the justice and equity of the orders sought where the wife seeks to keep the former matrimonial home where she and the children are living, and the husband seeks a cash adjustment in addition to superannuation in order to rehouse himself; and
f)the assessment of the relevant section 75(2) factors.
The wife’s case
The wife’s case is that she made significant contributions post separation with respect to the care of the children and also financially. She says she was subjected to family violence. She seeks to retain Property A and her superannuation.
She also seeks that valuation of Property A be the value as date of separation asserted by her. As part of her closing submissions she provided two scenarios based on the different valuations of Property A. If the Court accepts the 2014 valuation she seeks 60% of the net pool. If the Court accepts the current valuation should be used, she seeks 75% of the pool.
The husband’s case
The husband says there should be a 60% division in the wife’s favour on the basis of their contributions being equal with there being a 5% adjustment in the wife’s favour for his post separation conduct and a further 5% in her favour for s.75(2) factors.
The credibility of the parties
The wife is a (occupation omitted). It is evident from the manner in which she gave evidence that she has had some training or experience in giving evidence which places her at an advantage over the husband. The wife had a detailed knowledge of the evidence in this case. Her evidence was consistent with other pieces of evidence.
The husband was a largely unreliable witness. I am mindful that he has not had the same training and experience of the wife. However at various points his evidence was inconsistent and vague. As a result of this, wherever the parties’ evidence conflicts I prefer the evidence of the wife. I address this further when discussing his evidence.
Where I make findings of fact it is on the balance of probabilities.
Procedural history
This matter commenced on 30 June 2016 when the wife filed an application in which she sought both parenting and property orders, including the sale of Property B.
The first return of this matter was on 24 August 2016 before His Honour Judge McNab. Both parties were represented on this occasion. His Honour ordered that the parties attend a conciliation conference on 30 November 2016, made valuation directions for Property A, Property B and Property C, and adjourned the matter for final hearing before me on 14 September 2017. The parties also consented to various parenting and property orders which included the following orders:
11. In the event the Father does not choose to retain Property C on or by 24 September 2016, whichever is earlier, the Father and the Mother shall do all acts and things and sign all documents necessary to effect the sale of the property situate at Property C in the State of Victoria (“Property C”)…
…
16. The Father be solely responsible for all outgoings and mortgage repayments with respect to Property B. The amount of $1,318 is to be paid by the Father by the 25th of each calendar month into (Ms Melvin’s bank account).
On 20 October 2016 the wife filed an application in a case that, amongst many other orders, sought that both Property C and Property B be listed for sale by private treaty within 7 days and that the balance of the proceeds of sale be invested in a joint interest-bearing account, and that the father be restrained by injunction from attending either the Property C or Property B.
The wife filed a further application in case on 21 November 2016 which sought parenting orders only.
The application in a case filed 20 October 2016 was heard on 7 December 2016. Both parties were represented and I made orders by consent which included the following orders:
7. That the Mother and Father do all acts and things and things and sing all documents necessary to effect the sale of property situated at Property C, in the state of Victoria (“Property C”) and for that purpose the following apply.
a)The property to be listed for sale within 7 days by private treaty with Mr A and (omitted Real Estate Agency);
b)The list price of the property shall be such amount as nominated by the real estate agent;
c)The parties are to co-operate in every way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer.
…
11. That the Mother do all acts and things and sign all documents necessary to make an application to the Bank A to suspend the interest only payments with respect to the Property B mortgage for a period of six months.
12. That the father be restrained by injunction from attending Property C.
…
17. The Mother’s application to sell Property B be adjourned to the adjourned date.
18. The paragraphs 10, 12, 13, 14, 15, 16 and 17 of the Orders made 24 August 2016 remain in full effect.
19. The Father is to maintain the current condition of Property B and will cause to be repaired as any damage to the property caused by him or whilst in his possession and such repairs to be at his own expense.
20. Where the Father requires any renovations to Property B he must seek the written consent of the Mother.
21. The Solicitors for the Wife forward keys to Property B to the Solicitors for Father in 7days.
On 6 March 2017, when the case next came before me, I adjourned the matter to 18 April 2018 and ordered that the husband spend supervised time with the children and that the parties attend upon a private family report writer with the cost to be borne by the father. The parties consented to an order would attend Ms B for the family report interviews on 23 March 207. I also ordered the following:
14. The father file an affidavit by 13 April 2017 providing evidence that he has fully complied with the orders to pay for the mortgage and outgoings on Property B (“Property B”) as and when they fall due.
15. If the father does not comply with order 14 herein, then the sale of the property will be ordered on Property B next occasion.
The husband filed an affidavit on 13 April 2017 to which he annexed documents which he purported to be evidence that he had fully complied with the orders to pay for the mortgage and outgoings on Property B. Annexure 3 contains three documents. One is a Bank A customer receipt dated 28/03/2017 for $1,134.89 but it does not indicate what the payment is for. The second document is an Australia Post receipt to DEFT Payment (omitted) for $1, 377 dated 30 March 2017. The third document is an Owners Corporation Fee Notice dated 28/03/2017 with a total amount due of $1,375.00.
On 18 April 2017 I ordered that the parties attend a Conciliation Conference on 20 June 2017 (the original one being having been vacated by consent). The parties also agreed to interim parenting orders and an order for Property B and Property A to be valued prior to the Conciliation Conference.
On 20 June 2017 I adjourned the matter for Mention on 2 November 2017 and set the matter down for trial. I further ordered that parties do all acts and things within seven days required to sell Property B.
On 23 August 2017 the wife filed an application in a case seeking that the matter be heard on an urgent basis, the wife be solely responsible for the collection of the rent for Property B, the husband be responsible for any shortfall in the monthly mortgage repayments and council and water rates, the husband be restrained from collecting the rent from Property B and interfering with the sale of the property, and costs with respect to this application and the application to the Registrar pursuant to section 106A of the Family Law Act 1975.
In her affidavit sworn 18 August 2017, the wife deposed that Bank A had issued a default notice on the mortgage on Property B. She further outlined a series of correspondence between the parties’ lawyers about the sale price of Property B and stated that the husband would not sign the sale of authority which resulted in her making an application for a Registrar to sign pursuant to section 106A.
The wife’s application in a case came before me on 6 September 2017. The husband appeared in person on this occasion. I made the following orders:
1. Paragraph 16 of the Orders made on 24 August 2016 be discharged.
2. That the Applicant be solely responsible for the management of the tenancy agreement with respect to the property known as Property B (“Property B”); and
a) Collect all rent paid or to be paid by the tenants and to apply such rent to the mortgage encumbering Property B and to use any surplus towards the council rates and water rates.
3. That the Applicant be solely responsible for the management of the sale of Property B.
4.That the Respondent is:
a) Hereby restrained from collecting the rent with respect to Property B;
b) Solely responsible for all mortgage arrears and outgoings for Property B from 26 August 2016 until such time as the property is sold and the mortgage is discharged;
c) Assign the bond ($1,646.00) for Property B to the Applicant; and
d) Hereby restrained from interfering with the sale or the agents and tenants of Property B.
5. Paragraph 11(d) of the Orders made on 20 June 2017 be amended by deleting “Baily Timms Lawyers” and inserting “Ebejer & Associates Lawyers Pty Ltd”.
6. Paragraph 10(e) of the Orders made on 20 June 2017 be amended by deleting the words “Upon Agreement” and inserting “Upon obtaining an offer within or above the range stipulated on the sales authority”.
7. The Applicant’s solicitor is to serve a copy of these Orders on the agent and tenants of Property B.
8. The Applicant’s costs be reserved.
The matter returned on 2 November 2017. On this occasion it was submitted that an updated Family Report was required. The husband argued at length that an alternative Family Report writer be appointed. After hearing submissions from all parties, I determined that the parties were to attend Ms B for an updated report. I made a notation that “If parties do not attend upon Ms B for an updated family report…they must rely upon the Family Report dated 11 April 2017”.
Despite the orders that I made on 2 November 2017, the father filed an application in a case that sought “The father, mother and children attend upon a court funded family consultant to prepare a report”.
When the matter came before me on 8 February 2018 for a call over, as part of a trial case management scheme, I dismissed the father’s application in a case noting that “The issue of the Family Report writer has been raised in Court and dealt with previously”. I also ordered that the parties attend for property mediation with a Family Dispute Resolution Practitioner as nominated by Relationships Australia.
The matter returned on 16 March 2018 for a compliance hearing. The husband was again represented. As Property B had still not sold, the parties reached an agreement that the property be sold “Upon obtaining an offer of $450,000 or above”. The parties also consented that the husband be granted further time to file and serve his trial documents as he had only just reobtained legal representation.
The Final Hearing commenced on 9 April 2018. The parties had been able to agree to final parenting orders, but property matters remained on foot.
Contributions during the relationship
Both parties worked very hard during the marriage. At the start of the relationship they both worked three jobs, including on weekends.
They met in 1998 and started living together in 2001. They married in 2010. The wife says they separated on 28 December 2014.
The wife worked throughout the relationship apart from the periods where she took maternity leave. She became a (occupation omitted) in 2001 and continues in this employment. She was paid during her 5 months at (employer omitted).
Both parties saved towards the deposit of the home they purchased and set up a joint account which they deposited their wages into and from which they paid the mortgage.
The parties purchased their first property at Property B in June 2001. They bought the property for $240,000. They had saved the deposit of $24,000 and took out a mortgage for the rest. They moved into that property and lived there until 2008 when they made the joint decision to take a year off to go travelling. They rented Property B out.
In July 2004 they purchased a property at Property D for $241,000. Again they had saved the 10% deposit and took out a mortgage to cover the rest of the purchase price. They bought this property as an investment and rented it out.
In August 2009 they purchased the current matrimonial home at Property A for $525,000. They had saved the 10% deposit and took out a mortgage to cover the balance of the purchase price. They moved into that property when it settled.
In late 2011 the husband obtained employment at a (employer omitted) in Town C. He lived in Town C in a share house during the week and came home on the weekends.
Their first child [X] was born 2011. About three weeks after [X] was born the wife moved into a rental property at Town C to be closer to the husband’s work. They rented for about six months and then purchased Property C for $310,000. They borrowed $350,000 to assist with renovations. They rented out Property A.
They lived in Property C for about 13 months. After the husband’s contract ended they moved back into Property A and rented out Property C.
In 2012 they sold Property D for $311,000. They received approximately $70,000 from the sale as they had to pay capital gains tax and other costs. After paying those costs they put the remainder onto Property A.
The wife returned to work three days a week in about March 2013. The wife says that when they moved back to Town A the husband did not have work for about five months.
The husband commenced work in May or June 2014 and worked up until New Year’s Eve 2014. The parties’ second child [Y] was born 2014.
The wife said in cross-examination that she earnt about $230,000 more than the husband from 2005 to 2015. She took paid maternity leave after the birth of the children.
The husband was cross-examined about his taxable income for the years ending 30 June 2005 to 30 June 2015. Exhibit D is a bundle of the husband’s tax returns. The husband agreed to those amounts but also said his income was lower because he was able to claim losses on Property C which was in his sole name.
The wife says in 2014 the husband was unemployed for five months, obtained some short term work, and was then unemployed again for a further five or six months.
The wife denied having any health problems during the relationship, apart from needing to have Caesarean sections during the birth of her children.
The wife did not agree with the proposition that the parties both contributed as much as they could during the relationship.
Maintenance and improvements to the properties
The husband says he made significant improvements to the parties’ real properties using his skills as a tradesman to do much of the work himself and using his contacts in the construction and other related industries to get materials cheaply. The wife says they shared responsibilities for maintaining and improving the properties. She also commented that the husband was claiming to have done all this work on the properties whilst at the same time claiming that he was the parent looking after the children.
The wife reluctantly conceded that the husband has skills as a (trade omitted) and that he has done some work in the (omitted) industry but said he mainly worked for (employers omitted).
She did not accept that the husband had arranged his friends and family to work on the properties to the extent the husband claims. She said his father and brother did help a few times but that she would give them $150 a day. She did say that the husband’s father was generous at the time. She said she also worked very hard.
The wife’s evidence was that the husband exaggerated the extent of the work he did on the properties. The floors were polished, not replaced. They both repainted the interior of the house when they came home from work. She said they did some work on it in 2009 or 2010, but not in 2012. It was tenanted until it was sold. She denied that the doors were replaced. A tenant put a hole in one of the doors, which the husband patched, and he installed a security door. She said the husband took out two oyster lights and replaced them with down lights.
At [27] of his trial affidavit the husband says he carried out extensive renovation works on Property D before they sold it in 2012. He says he removed the existing flooring and installed new flooring, repainted the interior, replacing doors and light fittings.
At [28] of his trial affidavit the husband says he and his father and brother also carried out extensive works on Property C from February 2015 to April 2015, including removing carpet and polishing floorboards, installing a new bathroom, installing a new kitchen, painting and landscaping. The wife denies the timing of this as says it was tenanted until it was sold after they moved out. They did do some work on the property when they lived there. She agreed the husband removed the carpet and sanded and polished the floors. She says he retiled the showers and got a friend of his to put vanities and toilets in. She says she helped with the repainting of the interiors, as did the husband’s father and brother. She said the backyard was not landscaped, however he did cut back some plants.
At [29] of his trial affidavit the husband said that between April 2015 and June 2015 he carried out major works on Property A, including rendering the brickwork, landscaping the front and back yard, constructing a new driveway, removing the existing external gates and installing new ones, repainting the interiors and constructing and installing inbuilt storage and shelving units in the lounge room. The wife says the husband’s brother rendered the brickwork of the property instead of repaying money that she had lent him. She said there was not a new driveway put in but the husband did make some repairs to the driveway. She said that the husband moved one external gate about 10 metres forward in order to fit the boat. She says the husband did not build and construct inbuilt storage, instead she says they bought a four drawer chest of drawers for the living room. The husband was cross-examined about the renovations and improvements. He said his work increased the value of the properties, Exhibit H is a photo of what the husband referred to as a storage unit. It is a small unit. It supports the wife’s evidence, not the husband.
The husband was also shown other photographs of the driveway at Property A. Initially, the husband maintained that he constructed a whole new driveway. He then conceded that, contrary to his earlier evidence, he had repaired the driveway.
When he was cross examined about his statement that he rendered all of the brickwork, he conceded that the house was weatherboard. The brickwork was limited. His brother did the work. He also conceded that his brother had borrowed small sums from them from time to time.
I am satisfied that the husband has exaggerated the extent of his contributions to the improvements and maintenance of the properties in several respects.
Separation
The wife says the parties separated under the one roof on 28 December 2014. The husband says they separated when he left the home in January 2016.
The wife says in the lead up to separating under one roof that they had been having problems in their relationship. She says the husband started sleeping in the third bedroom and would go out at night and stay away then sleep on the couch during the day. She says his behaviour changed significantly during this period and that he provided little assistance with the children’s care.
The wife returned to work three days a week in February 2015 and both children attended childcare on the days she worked, even though the husband was not working at the time.
The husband says their relationship deteriorated in 2014, worsening after the birth of their second child. He says that whilst they were away on a family camping trip on 28 December 2014 they agreed to separate but they continued to live under the one roof. The husband says that this arrangement lasted for another 12 months. He said that he now realises that he was not coping with a breakdown of the relationship and he was depressed which was aggravated by his use of recreational drugs.
The wife filed an application for divorce on 27 April 2017 stating the date of separation as 28 December 2014. The husband did not file a notice of objection disputing the separation date. The husband said he does not recall seeing the paperwork.
The husband lodged a notice of objection to the child support agency. The bundle of child support documents, including the objection decision, is exhibit K. Relevantly the decision records that the child support assessment has been in place between the parties since 26 July 2015. This supports the wife’s case with respect to the separation being in December 2014 and not January 2016.
The husband says that despite the dysfunction within the family home he shared equally in the children’s care up until 2016. I prefer the wife’s evidence.
It is clear that there is a period where the parties were separated under the one roof. The husband’s own evidence is that they discussed separating on 28 December 2014 but remained under the one roof. The husband does not explain how he writes a separation date of January 2016. In January 2016 the wife and children left the home temporarily as she took out an intervention order but that does not contradict her evidence about an earlier separation date. It is clear that the husband had serious problems in 2015.
The parties did not separate their finances in 2015, as is apparent from exhibit L which is a bundle of (omitted) credit card statements showing two card numbers for that account. The wife identified these as hers and the husband’s cards. They continued to use this account until they cancelled it.
There was some cross-examination of the husband about some of the transactions but the wife did not mount a waste case in her trial affidavit. I am not satisfied that such a case exists, nor was I asked at the end of the case to make any addbacks.
The husband’s post separation conduct
The wife says that on 24 August 2015 the husband was arrested for drug possession of cannabis and methamphetamine. She says she had suspected that he had been using drugs as this behaviour had become more erratic and irrational. The husband said that he used ice occasionally in 2015.
The husband was involved in a car accident on (date omitted) and sustained a head injury. He was not taken to hospital. About a week later he saw a doctor who allegedly said he had post-concussion syndrome. The wife says the husband’s mental health deteriorated after that, that he became depressed and anxious, was having nightmares, and he became more aggressive and demanding. The husband says in addition to the physical injuries he suffered, he also suffered from shock and trauma and began experiencing higher levels of anxiety and stress. He attended a psychiatrist and was prescribed antidepressant medication. The husband’s car was written off and he received an insurance payout of $27,500, which was paid into the joint account. It was used to pay expenses, including the mortgages.
The wife says that on 1 November 2015 the husband smashed their laptop and left the home. The police arrived the following morning and executed a warrant under the Drugs, Poisons and Controlled Substances Act1981. The husband was intercepted by police and was charged on summons after refusing to undergo a drug screening test.[1]
[1] The actual charge is refusing a preliminary “oral fluid test” used in s.55D of the Road Safety Act (Vic) 1986
The wife says she was very concerned for the husband’s welfare and that she persuaded him to go to a drug treatment centre on 11 November 2015. It was a 28 day program but after 24 hours he contacted her and said he was coming home. The husband denied needing to be there and he said “that’s what they said. They said I needed psychiatric treatment”. He said he left at his request because it was inappropriate for him. The wife said she would collect him. She went with the children at about 7:00pm or 8:00pm that night. The wife says that the husband jumped out of the car window when she was stopped at traffic lights. She said that she did a U-turn and could see him watching her turn around when he laid on the tram tracks as a tram was approaching. The wife says [X] said “daddy nearly got squashed by the tram” and then the wife got out of the car and was yelling at him to get off the tracks and dragged him off the tracks.
Revealingly, when cross examined about this incident, in a deflection from reflecting on his own conduct, the husband said it was sad that the wife had brought the children with her to collect him from the drug treatment centre. In answer to the suggestion that there was no one else to care for the children, the husband said the two neighbours next door were nurses. The husband denied the wife’s version of events and said he got out of the car and walked to the tram stop. He said there was no need for the wife to get out of car.
He denied that [X] screamed and said that wife was making it up. I prefer the wife’s evidence on this point. It is an example of the husband avoiding taking responsibility for his actions.
After this incident, the wife says they went home and he went to sleep. She says that following morning she took the children to her mother’s house and that the husband came out as they were leaving and made some suicide threats. She called the husband’s father and also called the police.
The police had to force their way into the home as husband had barricaded himself in the house. The police forcibly took him to Hospital A under the Mental Health Act 1986 (Vic). The husband refused treatment and absconded from hospital but returned for a further assessment on 16 November 2015. During the next few weeks he stayed his parents’ home but regularly came to the former matrimonial home.
The wife says that on 31 December 2015 the husband became extremely aggressive and threw the highchair against the wall, threw barstools and kept slamming other doors. She says this occurred in front of the children.
She says she took the children to visit her grandmother in Town E from 2 to 5 January 2016. The day after she returned the husband began arguing with her and then got the hose out and soaked her with it. She says she called the husband’s father who arrived and took him away. During cross examination the husband conceded that he saturated the wife with the hose but he claimed that it was because she was swearing at screaming at him. He says that she actually laughed as it was a hot day. This is another example of the husband minimising his own behaviour.
The wife says that the husband returned the next morning and climbed on the roof, removed the roof tiles, kicked in the manhole and got into the house. The wife was afraid and called the husband’s father who said he was out the front in the car. The wife says he did not provide any assistance and the husband left a short time later. She says husband and his father returned later that day and refused to leave.
The husband says he knocked on the front door, but the wife did not answer. He said that he could hear [Y] crying. He did not conceded that he kicked in the manhole. He said he regrets entering the house that way as it was “a stupid thing to do”.
The husband was asked about a further argument in January 2016. Counsel for the wife put the husband that he grabbed her by the jumper and screamed at her. He did not agree that he grabbed her by the jumper but said that on that day he ‘got up in her face’ and screamed at her but says that it was after she threw a wine glass at him.
She describes further confrontations between herself and the husband. She says left the house and moved into emergency accommodation with the children and was away from home from 9 January to 15 January 2016. She sought an interim intervention order on 12 January 2016.
The husband stayed in the house whilst the wife and children sought refuge. He was shown photographs of Property A which are marked Exhibit M.
The wife says when she returned to the home it had been trashed and she found a pipe used for smoking ice.
The wife describes an incident on 5 March 2016 when she attended the husband’s home as they had agreed that he would care for [Y] while she took [X] to her swimming lesson. They had agreed that the husband’s brother would be home as the husband was having supervised time. She said that the husband was highly agitated when she arrived and began verbally abusing her and grabbed her by her arms and shoved her out of the way when she said she should take the children and leave. [Y] was standing behind him. The husband grabbed [X] and pulled her inside and slammed the door shut leaving the wife outside. She says the children were screaming and crying. She heard his phone ringing and he opened the door. The husband said to her that she was “driving him nuts” because of the intervention order and made threats to her if she did not discontinue it. She says he also sent a text message to her that day saying he would come through the manhole of the roof again.
On 16 March 2016, the husband consented to an intervention order, including the children, on a without admissions basis.
The wife describes a further incident which took place on 21 May 2016. The husband dropped off [Y] to Property A as agreed between them and they argued about their relationship and the husband left about 10:30pm that night. The wife says she heard a noise as if someone was breaking into the house. She also refers to the husband’s father’s car being parked out front. She says that she was afraid and went into her daughter’s bedroom and did not come out until after the noises stopped.
The next morning she woke up and noticed that several items had been taken from the lounge/dining room area including her Apple Mac desktop computer and peripherals, her small orange handbag which contained her police badge and lanyard, Bank A cards, diaries and other personal documents, as well as [X]’s new Apple Air 2 iPad. Jewellery was also taken, including her mother’s wedding band. The wife exchanged several texts with the husband. The husband’s mother returned some of the items to the wife at her home two days later. The wife reported the theft of the items to the police.
The husband was cross-examined about this. He admitted to taking the iPad and the items of jewellery.
The husband pled guilty to the burglary charge, as well as contravening the Intervention Order. As a result he was sentenced to two months imprisonment. Despite the guilty plea, in cross-examination he avoided responsibility, saying it wasn’t burglary as he was invited there and that he pled guilty but they ‘threw the book at [him]’.
The husband claimed that the first time he heard about the missing jewellery was at the hearing. I do not believe him.
The wife describes a further incident on 4 October 2016. The interim parenting orders provided for the husband’s time to be supervised. He was also not permitted to pick up the children from child care any earlier than 4:00pm. The father went to the childcare centre with his father that morning. The child care centre contacted the mother and she arrived at the centre at about 11.15am. The wife saw the husband walking outside with [X]. The wife reminded him he could not pick up the children before 4:00pm. The husband lifted [Y] off the ground. The husband’s father was in the car with the engine running. The husband placed [Y] in the car. [X] was holding on to the wife’s leg. The wife took [Y] out of the husband’s car and placed him in her car. The wife says the husband then confronted her and forcibly took some of her keys from her hand. He went around to the passenger side of the car and took the backpack from her car. After the husband left she found other items were missing including her handbag which had her police badge and ID, her wallet and other documents. During the incident she called triple zero and went to (omitted) police station afterwards.
Also, somewhat incredibility, he said that he did not take her police equipment and said that she left her police ID, gun, ammunition, belt and baton at his parents’ home. This makes no sense at all. There is no suggestion that she has spent time at his parents’ home. It also makes no sense that she would have her gun and ammunition while off duty.
The husband was arrested. He was remanded as he was already on bail with respect to his previous offences.
The husband pled guilty to family violence charges and burglary and was convicted of various charges with respect to the incidents on 16 March, 21 May, 29 June, 3 August and 4 October 2016 including burglary, theft, persistently contravening family violence intervention orders, breaching bail conditions and assault. The wife annexes the charge sheets the husband was convicted of to her trial affidavit.
The husband was sentenced to 60 days imprisonment and was placed on a community corrections order. There are further charges for breaching an intervention order pending against the husband. A 5 year intervention order was made against the husband on 13 December 2017.
The husband concedes that he engaged in some appalling conduct post separation. He only addresses it in minimal terms in his affidavit. His Counsel emphasised the importance of not punishing the husband for this conduct in circumstances where he now has a criminal record and spent a period in prison for those offences. I accept those submissions.
Use of Property B post separation
In July 2015 the tenants of Property B moved out. Around this time husband moved into his parents’ home and then moved between their home and Property B up until November 2015. The wife says he would also come to Property A a few times a week and sleep on the couch. She said there was no routine for the husband to see the children and she says he was inconsistent about turning up to their activities.
The husband says that when tenants vacated Property B in July 2015 the property was in a state of disrepair and that he and the wife agreed that work needed to be done to the property before it was rented out again.
He said he removed and replaced the flooring, removed and replaced tiling on the outdoor balconies, plastered and repainted interior walls, replaced light fittings, installed new wardrobes into the bedrooms and demolished and installed new bathroom. The husband says that around this time he moved out of Property A and started working on Property B. He says he was moving between Property B and his parents’ home. The husband’s evidence in this respect is inconsistent with his claim that the parties finally separated in 2016.
The husband agreed to finish work on Property B so it could be rented out. The wife alleges the husband frustrated the agent’s attempts to place tenants in the property in May 2016, changed the locks without her consent and took control over the property. Whilst he had control of the property he did not pay rates, bank interest, electricity or owners corporation fees. The wife says the husband’s conduct caused them to lose rent for an 18 month period and incur significantly higher bank fees.
Interim orders were made by consent on 24 August 2016 requiring the husband to be responsible for all outgoings and the mortgage repayments with respect to Property B and Property C. The husband breached those orders and delayed signing the sale documents for Property B. The husband then said he wanted to retain Property B. During cross-examination, he acknowledged that orders were made for him to pay the Property B mortgage and expenses.
He conceded that he did not apply to vary the order and attempted to deflect by referring to the wife’s obligations with respect to Property A. He was shown the default notices, which are Exhibit O, dated 6 June 2017, 24 October 2017, and 6 November 2017. The husband conceded that he knew what his obligations were and did not meet them.
Exhibit P is a bundle of overdue rates notices with respect to Property B, which again he had to acknowledge that he did not pay. Exhibit P is consistent with the husband’s evidence that he paid the strata levies up until June 2017. They do confirm arrears increasing after June 2017 for strata levies, council rates and water rates. The tenor of the husband’s evidence, in keeping his evidence generally, was that it was other people’s responsibility rather than his own. All the notices were addressed to his parent’s home address which is where he is living.
On 28 February 2017 the husband unilaterally entered into a tenancy agreement. The husband took a $1646 bond from the tenant but did not pay it to the bond authority. He charged $1646 rent each month and retained it for himself rather than applying it to the mortgage.
The husband unilaterally reduced the tenants rent by $200 a week when the property was being advertised for sale and also restricted the agent’s access to the property. The wife annexes the relevant documents to her affidavit. The agreement the husband signed with the tenants required the agent to give at least 48 hours’ notice to the tenants before showing a prospective buyer and that such appointment was to be arranged via email to the husband only and not the tenants directly. The property was to be open for inspection every second Wednesday at 11:00am.
The wife’s Counsel suggested to the husband that he sought to move into Property B upon his release from prison. He was in prison from October 2016 to December 2016. He agreed he wanted a new start and that the Court gave him that opportunity. He then said the plan was to finish the renovations and then get tenants in until he could afford to move in. The wife’s Counsel suggested to the husband that was not what he told the Court.
The husband claimed that he kept the mortgage repayments up to date until June 2017. Exhibit Y, being a bundle of mortgage statements contradict his evidence. Whilst some payments were made to the mortgage before and after June 2017, they were not sufficient to cover the required payments. The statement issued for the period 28 April 2017 to 31 July 2017 shows arrears of $2,692.95. The statement issued for the period 31 July 2017 to 31 January 2018 records arrears of $10,265.55.
The husband did not find tenants through an agent but made cash arrangements with the tenants. The tenants would only deal with the husband. The husband claims that the tenants didn’t want to deal with the wife but that they cooperated with the agent. This is not reflected in the email the agent sent to the wife. The husband and the tenants would only allow inspections at 11:00am on alternate Wednesdays. That was not genuine cooperation. In order to attract buyers properties need to be open for inspection on weekends and more frequently than once a fortnight.
The husband denied that he avoided the sale as much as a could but he was not able to explain why he entered into the rental agreement at Exhibit T.
The husband was also cross-examined about photographs of Property B which were marked as Exhibits U and X, which show the property in a state of disarray. When it was suggested to him that it was left to the wife to clean up the property and get it ready for sale. The husband replied that he had nothing to do with it and that he did not know why it took so long to sell.
The husband compounded the problems of the rising arrears of the levies, rates, and mortgage by resisting sale of Property B.
I am satisfied that the husband obstructed the sale, causing delay and causing the mortgage and outgoings arrears to increase.
The parties exchanged contracts for the sale of Property B shortly before the trial, with the settlement date to take place after the trial. During the period the judgment was reserved the parties’ legal representatives helpfully provided the figures.
Withdrawals post separation
The wife says on 27 January 2016 she was paying bills online when she noticed that $100,000 had been transferred from the joint account. She found out that the husband had transferred that sum without her knowledge or consent and leaving $9824.68 in the account. She had a credit card debt of $10,874.84 that was due to be debited on 1 February 2016.
The husband says he removed that money when he wrongly believed that the wife had transferred the properties and loans into her name. Once he realised his mistake he transferred the money back. The wife’s Counsel suggested to him in cross-examination that he knew the wife had a credit debt to meet. The husband denied this. It was then suggested that he was reckless about it. He said he did not make enquiries.
After correspondence from the wife’s lawyers the husband initially placed the $100,000 into his solicitor’s trust account before returning it joint account on 23 February 2016.
The wife says she noticed a further $50,000 missing from the redraw facility on 4 March 2016 and discovered that again the husband had removed this sum without her knowledge or consent. She says that at court on 16 March 2018 they agreed that the husband would retain $20,000 of the $50,000 he removed and return the $30,000 to the joint account which he did on 21 March 2016. The husband disputes this and says they agreed that he would have the use of the $50,000, that the wife later retracted her consent, and that at her insistence he returned $30,000 and used the remaining $20,000 towards the renovation costs of Property B and to buy basic furniture and pay for living expenses. Exhibit N is a series of texts from the wife to husband where she asks him if he transferred $50,000 or had they been hacked. It is consistent with the wife’s version of events.
The wife conceded that she withdrew the following sums and spent them on legal fees and living expenses as follows:
a)$9,789 on 21 January 2016;
b)$40,000 on 4 March 2016;
c)$25,000 on 29 March 2016.
The wife says she opened two high interest earning savings account and transferred the funds so she could pay the mortgage and other expenses.
The wife provided a breakdown of her spending between 27 January 2016 and 29 August 2016 from her personal bank accounts. At [179] of her trial affidavit she outlines the following:
a)$34,502.48 to pay for the mortgage repayments for the Property A, Property B and Property C properties;
b)$5,879.71 to pay for the utilities and other outgoings with respect to the properties and private health insurance for the whole family;
c)$30,576.90 was expended on living expenses including food and groceries, petrol, children’s clothing, children’s activities including swimming lessons, medical expenses and childcare;
d)$479.80 on expenses for the family dog, including vet expenses;
e)$160 for joint counselling;
f)$1,199 mediation fees;
g)$11,346 legal fees;
h)$3,000 family holiday; and
i)$2,782.12 personal expenses.
Counsel for the husband put to the wife that the amounts in [179] of her trial affidavit totalled approximately $88,000. The wife agreed that these amounts provided her total expenditure during the period of 27 January to 29 August 2016 and she said that these were joint expenses.
Closing Submissions
The wife’s Counsel argued in closing submissions that the value of Property A as at that separation should be adopted rather than the value at trial. The retrospective valuation of Property A values it at $630,000 in December 2014. The current value of Property A is $1,000,025.00. Her Counsel used the figure of $280,000 for the mortgage both at separation and at trial. The wife’s argument, if successful, would have the effect of reducing the equity in Property A by $395,000.
In support of this argument the wife’s counsel relied on the Full Court of the Family Court’s decision in AJO & GRO [2005] FamCA195. At [16] and [17] the Full Court observed that ordinarily the legal and equitable interests of the parties should be valued at the date of trial, acknowledging that in some cases there may be evidence justifying using another date which may be the date of separation.
The husband’s Counsel argues that to use the historical valuation would be grossly unfair to the husband. It is not uncommon for real estate values to increase, and indeed in some cases decrease in the period between separation and trial. There are no justifying circumstances in this case to depart from the usual practice of valuing the parties’ legal and equitable interests as at the day of trial. It would be unfair to adopt the wife’s proposal. The proper course is to assess the post separation contributions which are significant.
The wife’s counsel also relied on the Full Court decision of Phillips & Phillips (2002) 168 FLR 438 where the Full Court stated that when considering a just and equitable outcome it is necessary to consider the practical effects of the orders. He referred to this in support of his submission that the wife seeks the opportunity to retain Property A in which in the children have been living in since separation. The minutes handed up included superannuation split of the wife’s superannuation to the husband’s superannuation on the basis that the split of superannuation would give her a better opportunity to keep the home. This is a change in her previous position where she wanted to retain whole of her superannuation interests. Her superannuation fund has been accorded procedural fairness.
The husband seeks an order equalising the parties’ superannuation interests. By the end of the hearing the wife accepted that there should be a split of her superannuation interests to the husband. This will give her a greater chance of keeping Property A.
I do not have evidence as to the wife’s borrowing capacity.
I accept that the wife should be given the opportunity to retain Property A which will also benefit the children.
The husband’s counsel submitted that there should be a 5% adjustment in the wife’s favour for the husband’s post separation conduct and a further 5% adjustment for s75(2) factors in her favour.
The parties’ equitable and legal interests
The parties sold Property B on the Wednesday prior to the commencement of the trial for $480,000.
Chambers received joint letter from the parties advising the distribution of sale proceeds from Property B as follows:
In the circumstances, and with a view to ensuring that settlement proceeded as ordered, the parties consented to a distribution of the sale proceeds of Property B as follows:
1.To discharge the mortgage with the Bank A and in payment of all costs associated with the sale;
2.In satisfaction of the outstanding liability in respect of the shortfall arising from the sale of Property C;
3.In satisfaction of the husband' s debt to Baily Timms in the agreed sum of $40,000 (legal costs);
4.In satisfaction of the wife's debt to Ebejer & Associates in the sum of $45,485.94 (legal costs);
5.The balance of $4,066.18 in part payment of the husband’s debt to us (legal costs).
The parties sold Property C in July 2017. There was a shortfall on the mortgage of $34,569.
The wife says she has approximately $30,000 owing in legal fees. Her mother contributed $10,000. She paid $11,384 from her income.
Neither party seeks any addback for paid legal fees. Both have now had a portion of their outstanding legal fees paid.
The parties agree that Property A is currently worth $1,025,000 and is subject to a mortgage of $280,000, leaving equity of $745,000.
The husband’s tools
The husband says he left valuable tools at the home which he claims the wife kept. Exhibit G are photos of the tools.
The wife denied keeping the husband’s tools. She kept the lawnmower because of needing to maintain the lawns at the home. She gave him his clothes, boxing gear and tools. The wife says she has previously disclosed CCTV footage of the husband’s brother loading up tools in his truck.
I prefer the evidence of the wife with respect to the tools.
Jewellery
The wife also said she does not have the jewellery as the husband took it on 23 March 2016. She became tearful when describing her mother’s wedding band which was given to her by her father who is now deceased. I accept her evidence.
In circumstances where I am satisfied that on the balance of probabilities that the husband has the tools and the jewellery, it is appropriate not to include the furniture the wife has retained for herself and the children.
The boat
Exhibit E is a photo of the boat. The boat is in the husband’s father’s name. The husband was cross-examined about exhibit F which is a bundle of the parties’ joint Bank A account statements showing a withdrawal on 16 September 2014 described as “payment [D] for boat deposit” for $100. The wife says the withdrawal on 26 September 2014 in the sum of $30,000 was for the purchase of the boat. That entry does not have a description on the bank statement. Other entries with respect to the boat do have descriptions. The husband denied that the $30,000 related to the boat including withdrawals and deposits.
The wife says the boat was bought in the husband’s father’s name as the insurance was cheaper as he was a pensioner. The husband says much of the funds for the boat came from the inheritance he received after his brother’s tragic death. He became very emotional about it when cross-examined. There is no valuation of the boat. The husband says there was an agreement that it is worth $14,000. It needs repairs.
I am not satisfied that the state of the evidence is such that the boat should be included in the asset pool. By the end of the hearing neither Counsel included it in their balance sheets handed up during closing submissions.
Car
The wife has a car. Both counsel handed up balance sheets and minutes of orders sought at the end of the evidence. The husband’s Counsel included the wife’s household content with a figure of $10,000 and her car with a figure of $9,000, taking these figures from the wife’s financial statement. He did not include any figure for the husband’s contents or the (omitted) motorbike the husband has which the husband failed to attribute value to in his financial statement.
The wife says the husband had a second-hand car, which he sold and kept the sale proceeds, and a motorbike.
Superannuation
Exhibit AA is the balances of three of the husband’s four superannuation interests. The husband also has a modest amount of superannuation with (omitted) which he refers to in his financial statement. I am satisfied that the husband’s superannuation interests total $70,575. The valuation of the wife’s defined benefit superannuation fund was made available during the course of closing submissions and as marked exhibit BB. The wife’s superannuation is valued at $110,821 which is significantly less than what both parties thought the superannuation would be.
Before any superannuation split is made the husband has 38% of the superannuation pool and the wife has 62%.
Conclusions with respect to the parties’ legal and equitable interests
The wife’s Counsel does not include any figure for household contents or motor vehicles on either side. Given the state of the evidence I prefer the approach of the wife’s Counsel.
I find that the parties’ legal and equitable interests available for division are the equity in Property A of $745,000 and the parties’ superannuation interests totalling $181,396.
The particulars of the proceeds of sale of Property B are set out at [120] above. I consider it appropriate to notionally add back the amount of $40,066 which the husband received to pay his outstanding costs to Baily Timms and reduce his costs to his current solicitors and the $45,486 the wife received to pay her solicitors. Both counsel present their cases on the basis of there being equity in Property B to include for division between them.
The only figure the parties are unable to provide is what the capital gains tax will be as a result of the sale of Property B. I am on the view the capital gains tax should be divided between the parties equally.
Section 75(2) factors
The husband was unemployed for significant periods post separation. He says he secured full time employment as a (occupation omitted) in April 2017. The husband then said he worked from April 2017 to December 2017 full time earning $1000 a week. His contract expired in December 2017. He says that due to the criminal proceedings and these proceedings he has not been able to enter into a further contract but that his employer has told him he will be considered for a full-time position when he becomes available. I am satisfied that the husband will be able to obtain work. I am satisfied that the husband will get work as a (occupation omitted) again once these proceedings are concluded. His explanation as to why he is not currently working is not credible.
During this period the wife claims she only received $35 a month in child support. The husband claims he was paying $135 a month when working but he has not provided any bank statements. In addition to this when he was working he did not make the payments on Property B that he was obliged to make.
The husband says his mental health has improved significantly in recent months.
Pursuant to the final parenting orders to which the parties agreed, the wife will remain the children’s primary carer. The husband will have care of the children for three nights a fortnight until 12 April 2019. After that he will have care of the children for four nights a fortnight. He will also have time on special occasions and during school holidays.
Legal Principles
Until the High Court decision in Stanford & Stanford (2012) 247 CLR 108, the position in respect of the process to be applied to the resolution of matrimonial property cases was said to be well settled with a preferred approach as set out by the Full Court in Re Hickey (2003) FLC 93-143 at 78,386 [39].
The High Court considered the operation of s.79 of the Act in the matter of Stanford. In this case, the majority stated at [35]-[36] that:
“It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.”
The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.” [Footnotes omitted]
The High Court found three fundamental propositions with respect to the application of s.79, which can be summarised as follows:
1. Firstly, in order to ascertain whether it is just and equitable to make a property settlement order, it is necessary to identify the existing legal and equitable interests of the parties in the property. The High Court emphasised the word ‘existing’.
2. Secondly, although s.79 gives the court a broad power to make property settlement orders it may not be exercised in an unprincipled fashion. There must be no assumption that the parties’ interests are or should be different to their existing interests.
3. Thirdly, when considering whether making a property settlement order is just and equitable the court must not assume that one or the other party has the right to a property adjustment order. The court must give separate consideration to s.79(2) in addition to the matters referred to in s.79(4).
In Stanford the High Court indicated that, in the vast majority of matrimonial property cases, the requirements of s.79(2) will be readily satisfied, largely as a result of a consideration of the circumstances of the parties concerned, particularly the nature of their separation.
The High Court also pointed out that what is just and equitable is different in every case.
Costs
There are several reserved costs orders arising out of interlocutory applications. The issue of costs were raised at the end of the hearing. In the event that either party wishes to seek costs, as was foreshadowed at the conclusion of the trial, written submissions in support of any costs application are to be made within 28 days. Any submissions in reply are to be filed within 42 days. I will then determine that application in chambers, unless either party seeks to have the matter relisted.
Conclusion
I am satisfied that the parties separated in on 28 December 2014 and remained living under one roof for several months. They both worked very hard, particularly in the early years of their relationship. The husband exaggerated the extent of his parenting contributions and his contributions to the improvements of the properties.
I am satisfied that the wife made slightly greater contributions during the latter part of the parties’ relationship. The wife made significant post-separation contributions. She had the care of the children with little assistance from the husband, particularly from mid-2015, given he was having limited supervised time. She also made significant financial contributions post separation in contrast to the husband. This has been discussed in some detail above.
The total of the non-superannuation pool is $830,552. The husband has already received $40,066 and the wife $45,486, from the proceeds of sale of Property B.
In all of the circumstances of this case a 5% adjustment in favour of the wife contributions would be grossly inadequate. I find that it is just and equitable to make a 20% adjustment of the equity in Property A. She should also receive a 5% adjustment for 75(2) factors. The orders I make provide for the wife to receive 80% of the equity in Property A and the husband 20%. In addition they will each keep what they have received from the Property B proceeds of sale.
I find it is just and equitable for the parties to receive 50% each of the superannuation pool which requires there to be a split of $20,123 from the wife’s superannuation entitlements to the husband.
I certify that the preceding one hundred and sixty-four (164) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 10 July 2018
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Remedies
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Costs
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Contract Formation
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Jurisdiction
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