Najeeb & Najeeb
[2023] FedCFamC2F 189
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Najeeb & Najeeb [2023] FedCFamC2F 189
File number(s): PAC 4592 of 2019 Judgment of: JUDGE NEWBRUN Date of judgment: 23 February 2023 Catchwords: FAMILY LAW – PROPERTY – Just and equitable property orders made. Legislation: Family Law Act 1975 (Cth) ss 75(2), 79(2) Cases cited: Lotta & Lotta [2017] FamCA 50 Division: Division 2 Family Law Number of paragraphs: 89 Date of hearing: 30–31 January 2023 Place: Parramatta Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr Maddox Solicitor for the Respondent: Safi Legal ORDERS
PAC 4592 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS NAJEEB
Applicant
AND: MR NAJEEB
Respondent
order made by:
JUDGE NEWBRUN
DATE OF ORDER:
23 FEBRUARY 2023
THE COURT ORDERS THAT:
1.Within 7 days the parties shall cause the husband’s solicitors to pay to the wife from trust monies held by those solicitors the sum of $361,628.
2.The wife, should she wish to retain the property situate at and known as B Street, Suburb C (“the property”), shall within 8 weeks from the date of these Orders provide to the husband’s solicitors evidence of a bank mortgage loan approval enabling the wife to re-finance the existing mortgage loan debt relating to the property and obtain a new mortgage loan for the property in her own name.
3.Within 7 days of Order 2 being complied with by the wife:
(a)The parties shall do all acts and things and sign all necessary documents to discharge the mortgage in favour of ANZ Banking Group Limited secured over the property (“the mortgage”) and thereafter the wife shall indemnify and keep indemnified the husband from any liability thereon;
(b)The husband shall transfer to the wife his interest in the property;
(c)The husband and wife shall request the husband’s solicitors to distribute the balance of trust fund monies of $332,965 to the husband.
4.Should the wife fail to comply with Order 2 above, then the husband, should he wish to retain the property, shall within 8 weeks thereafter, provide to the wife evidence of a bank mortgage loan approval enabling the husband to re-finance the existing mortgage loan debt relating to the property and obtain a new mortgage loan for the property in his own name.
5.Within 7 days of Order 4 being complied with by the husband:
(a)The parties do all acts and things and sign all necessary documents to discharge the mortgage and thereafter the husband shall indemnify and keep indemnified the wife from any liability thereon;
(b)The husband and wife shall request the husband’s solicitors to distribute the balance of trust fund monies of $332,965 to the wife;
(c)The husband shall pay to the wife the sum of $21,503; and then,
(d)The wife transfer to the husband her interest in the property.
6.Pending the transfers in Orders 3 or 5, each party is restrained from further encumbering the mortgage.
7.Should the husband fail to comply with Order 4 above, then the parties shall forthwith do all things and sign all documents necessary to cause the property to be sold by private treaty at the earliest possible date at a price to be agreed upon between the parties and failing such agreement at a price to be determined by the President of the New South Wales Division of the Australian Property Institute (or any successor of it) or his/her nominee and to disburse the proceeds of the said sale in the following manner and priority:
(a)Payment of agent’s commission and advertising expenses and legal expenses of the sale;
(b)Discharge of the mortgage;
(c)Payment of costs incurred, if any, in relation to determination of value or selling price by the President of the New South Wales Division of the Australian Property Institute or his/her nominee;
(d)The balance of the proceeds of the said sale then remaining shall be divided between the parties as to 60 per cent to the wife and 40 per cent to the husband but adjusted by reference to the assets and liabilities they each shall retain in accordance with Orders set out below.
8.Should the property not be sold pursuant to Order 7 within six months, then the parties shall do all acts and things to sell the property by public auction as soon as possible with an auctioneer recommended by the selling agent, and will accept the recommendations of the auctioneer on such matters as the reserve price and the acceptance of any offers. The proceeds of sale of the property following an auction sale shall be disbursed in accordance with Order 7 above.
9.The wife is declared the sole owner in law and in equity as between herself and the husband of all items of personal property, financial assets and financial resources currently in her power, possession or control other than as specifically dealt with elsewhere in these Orders, including any bank or credit union accounts.
10.The husband is declared the sole owner in law and in equity as between himself and the wife of all items of personal property, financial assets and financial resources currently in his power, possession or control other than as specifically dealt with in these Orders, including any bank or credit union accounts, and any superannuation entitlements held in his name.
11.The wife is declared solely responsible for all liabilities in her sole name and the wife shall indemnify and forever keep the husband indemnified with respect to any and all of the wife’s personal liabilities, and the wife shall pay the parties’ C City Council debt in the sum of $3,979.
12.The husband is declared solely responsible for all liabilities in his sole name and the husband shall indemnify and forever keep the wife indemnified with respect to any and all of the husband’s personal liabilities.
13.In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
14.Each party has liberty to apply in relation to the implementation or enforcement of these Orders upon 14 days’ notice.
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 Najeeb & Najeeb has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
These are Reasons for Judgment relating to a final hearing held before the Court on 30 and 31 January 2023 relating to property proceedings.
The husband appeared, legally represented. The wife’s legal representatives appeared at the outset of the final hearing but sought leave to withdraw due to, what was submitted, was an allegation made by the wife against her instructing solicitor. The Court gave the wife’s legal representatives leave to withdraw. The wife told the Court she was ready to proceed with the final hearing and sought no adjournment. The wife was assisted by an Arabic interpreter during the final hearing with the Court observing that during the final hearing she often spoke in broken English with a thick accent. The wife told the Court she could read English.
The husband’s counsel brought to the Court’s attention certain family violence allegations made by the wife against the husband in her affidavit filed 22 July 2022, however, informed the Court that the husband had no objection to the wife personally cross-examining him and confirmed that the previous ADVO made against the husband for the benefit of the wife had previously expired.
Before the wife’s cross examination by the husband’s counsel, the wife informed the Court as to the property orders she was in substance seeking, clarified and amended certain aspects of the parties’ balance sheet dated 30 January 2023, and the Court explained to the wife the course of the final property hearing including cross-examination by the wife of the husband. The wife was informed by the Court that she was permitted to inspect subpoenaed documents before the Court and tender any relevant document from such documents. The wife made certain discrete objections to the husband’s trial affidavit filed 27 January 2023 and the Court made rulings.
PROPOSALS
In relation to the property proceedings, the wife was asked by the Court whether she sought the orders set out in her previously filed Amended Initiating Application filed 5 May 2020. In response, the wife informed the Court that:
(a)She wanted to retain the jointly owned property at B Street, Suburb C, (the B Street, Suburb C property) subject to the mortgage debt in the sum of $575,532, and informed the Court that she would look for employment with a view to servicing that mortgage debt;
(b)She sought 65 per cent of the net proceeds of sale of the property (held in the name of the husband) at D Street, Suburb C, (the D Street, Suburb C property). That latter property had been sold just before trial and the net proceeds of sale were $694,593 and held in the husband’s solicitor’s trust account;
(c)She sought 65 per cent of the husband’s superannuation entitlement, having informed the Court that as a result of withdrawals by the husband from his superannuation totalling $27,000, his superannuation entitlement should be at least $100,758;
(d)She sought a refund for mortgage repayments that she had made on the B Street, Suburb C property over the last three years in the sum of about $36,000.
The husband sought final property orders as set out in his Amended Response to Initiating Application filed 25 January 2023. The husband sought final property orders, inter alia, as follows:
(a)That the wife transfer to the husband her interest in the B Street, Suburb C property with the costs of the discharge of the mortgage on the property to be paid by the husband;
(b)The net proceeds of sale of the D Street, Suburb C property be divided equally between the parties.
MATERIAL RELIED UPON
The wife relied upon the following documents:
(a)Her affidavit filed 22 July 2022;
(b)Her Financial Statement filed 22 July 2022;
The husband relied upon the following documents:
(a)Amended Response filed 25 January 2023;
(b)His affidavit filed 27 January 2023;
(c)His amended Financial Statement filed 27 January 2023;
(d)His Case Outline filed 27 January 2023 prepared by his counsel.
The exhibits were as follows:
(a)Exhibit A: ANZ account and loan statements;
(b)Exhibit B: Document showing wife’s Centrelink debt;
(c)Exhibit C: Company E income statement;
(d)Exhibit D: Cheque to Company F for $10,300;
(e)Exhibit E: Document showing husband’s superannuation balance;
(f)Exhibit F: Child support assessment statements for the husband.
EVIDENCE
The Court has considered the documentary material relied upon by the parties discussed above, and the parties’ oral evidence.
The standard of proof applied by the Court in respect to the evidence is the balance of probabilities. The Court does not propose to set out the entirety of the evidence. Relevant evidence relating to the issues to be determined will be set out below and under the headings “Balance sheet”, “Section 75(2)” and “Contributions”; where there is any conflict between the evidence referred to below and in those sections of these Reasons, the evidence under the headings “Balance sheet”, “Section 75(2)” and “Contributions” shall take precedence.
The wife was cross-examined by the husband’s counsel.
The wife stated that the husband’s superannuation entitlement used to be $120,000. She stated that the husband had withdrawn $27,000 from his entitlement. The wife was asked whether she had a document to verify her assertions in this context and she said it was with G Lawyers.
The wife asserted that the husband had withdrawn monies from a bank and had hid such monies. She was asked of the addbacks in the balance sheet what monies had the husband withdrawn and hid, to which the wife replied that $250,000 had been withdrawn against the D Street, Suburb C property and in item 10 of the balance sheet the addback for the sale of the Motor Vehicle 1 should be $15,000 not $10,000.
The wife asserted that the husband had purchased his new Motor Vehicle 2 before he sold his Motor Vehicle 1. She asserted he purchased the Motor Vehicle 2 on credit card. The wife asserted that the husband had hid monies that he had received from the sale of the Motor Vehicle 1. She asserted that when the husband sold the Motor Vehicle 1 the children and herself were not living with the husband. In relation to the sale of the Motor Vehicle 1 the wife stated that she had no idea where the monies relating to the sale of this van had gone.
The wife asserted that the husband had borrowed $250,000 against the D Street, Suburb C property after the parties’ separation in 2019, and not on about 23 August 2018 as asserted by the husband.
The wife agreed that she did not know what the husband had done with the monies the subject of the alleged addbacks. The wife agreed that her position was that if she did not know what had happened to these monies then the husband had hidden such monies. The wife was asked whether she would be satisfied if the husband was able to explain to the Court where these monies had gone, with the wife responding that she would not be so satisfied because the husband had taken the money, he had hidden it and had not stated where it had gone.
The wife stated that the husband worked from Monday to Friday during the whole period of the marriage. She agreed the husband had worked hard but that he was always at work.
The wife agreed that she had received no Centrelink benefits until the first child was born in 2008. Initially the wife stated that the husband had supported her financially during this period but only in relation to eating. She then agreed that the husband had paid the parties’ rent for one year before the D Street, Suburb C property was purchased and that after that property was purchased he was also paying the mortgage debt and rates.
The wife stated that she did not know anything about the husband’s assets before the commencement of the parties’ marriage.
The wife agreed that the husband had mowed the lawns during their relationship. She asserted that the parties had taken the children to swim lessons before 2018 for a number of years. The husband had taken the children to parks on weekends. She asserted that she did more gardening work than the husband. She asserted that the husband had only washed the dishes and cooked for one week. She denied the husband had done the laundry each weekend and that he did not clean the house on Sundays. She stated that both parties did the grocery shopping together on Sundays.
It was put to the wife that apart from the sale of the husband’s Motor Vehicle 1 van, she did not know anything about the husband selling anything since separation, to which she agreed.
The wife agreed that the husband, during the parties’ marriage, earnt much more than her receipt of Centrelink benefits.
The wife was asked what was the husband doing, apart from paying the mortgage debt, with the income he earnt from his transport business, to which the wife responded “you ask him”.
The wife asserted that her statement in paragraph 42(a) of her affidavit that the husband had made a redraw of $250,000 against the D Street, Suburb C property in August 2018 was incorrect. She then asserted that the purported signature of herself at the bottom of page 6 (paragraph 42(a) appears on page 6) of her affidavit was not her signature. This latter assertion of the wife then led to cross examination of the wife in relation to her purported signatures at pages 2 to pages 17 of her affidavit.
The wife asserted that her purported signature on page 1 of her Financial Statement filed 22 July 2022 was not her signature (her then solicitors being H Lawyers). She stated that her purported signature on page 9 of her Amended Initiating Application filed 5 May 2020 was her signature (her then solicitors being G Lawyers). The wife asserted that the two signatures appeared to look similar.
In relation to the purported signatures of the wife in her affidavit filed 22 July 2022, the wife asserted that her signature did appear at the bottom of page 2 of that affidavit, as well as at pages 7, 8, and 9 of that affidavit, and she stated that those signatures were signed through her previous lawyers. The wife stated that she did not make those signatures before her most recent solicitor, Mr J (H Lawyers) despite her affidavit stating otherwise (see page 17 of that affidavit). Otherwise, she asserted, her purported signatures on the other pages of that affidavit were not her signatures.
The wife stated that on 22 July 2022 she did not see her affidavit filed that day. She stated that today (30 January 2023) was the first time she saw that affidavit.
The wife stated that she did not sign all pages of her affidavit in the presence of the interpreter, Ms K, whose certification appears at page 18 of her affidavit. (The Court observes that that certification of the interpreter states, inter alia, that she has truly interpreted to the deponent of the affidavit “the contents of this affidavit and the oath or affirmation which was administered.”). The wife asserted that the interpreter had only interpreted the pages of the affidavit that she had signed. However, she later asserted that page 7 of her affidavit had not been interpreted to her. The wife asserted that after she had “signed” the affidavit that extra pages of the affidavit had later been put in by the lawyers who had numbered the affidavit. She asserted that pages 3–6 of the affidavit had been inserted into the affidavit after she had signed it.
It was put to the wife that it was unlikely that she had signed page 2 of the affidavit (up to paragraph 6) and that the next page that she had signed commenced at paragraph 46 appearing on page 7 of the affidavit, to which the wife replied, “I don’t know”.
The wife asserted that her most recent solicitors had obtained the information for paragraph 42 of her affidavit from the ANZ bank statements.
In relation to paragraph 42(c) of her affidavit, the wife asserted that she did not know anything about the sum of $77,510, only that her lawyer had put it in there.
The wife asserted that the first sentence of paragraph 48 of her affidavit was correct, namely that the purchase of the B Street, Suburb C property was funded by a cash deposit payment and the balance was secured by way of mortgage in the sum of $620,000 from ANZ bank. She asserted that the second sentence of paragraph 48 was correct, namely that she did not know where the balance of the deposit was sourced from. In this latter context, it was put to the wife that the balance of deposit could have come from either of the withdrawals from the offset account ($77,510 withdrawn on 24 September 2018, and $110,224 withdrawn on 12 November 2018) referred to in paragraph 42 (c) and (d) of her affidavit, to which the wife replied that $77,510 was paid to the agent. It was then put to the wife that she had no idea where the balance of the deposit came for the purchase of the B Street, Suburb C property, to which she agreed.
The wife stated that the husband had never asked her for spousal maintenance. The wife agreed that the husband now pays $250 per week in child support and which had commenced from 21 July 2021.
In relation to the children’s expenses, the wife stated that the husband had recently paid $500 for school uniforms but that she had paid some $3,320 in total in this regard. She stated that in 2022 the husband had paid $700 for school fees. The wife agreed that apart from school fees and uniforms, the husband pays for other things for the children, separate to child support, but that she pays double what the husband pays.
The wife agreed that she could look for employment while the children were at school, however she stated that her eldest child is diabetic and that her work would have to be near the children’s school. She stated that her last employment was for four months from about mid-March 2021. This work was in a shop in Suburb C. She stated that she had told her previous lawyers (G Lawyers) about this employment. The wife stated she is presently looking for employment; she stated she was registered with a job agency. She stated that she had attended English-speaking classes since arriving in Australia in 2007 and that those classes had improved her English. She had been required to speak English in the shop. She stated that her lack of English did not stop her from obtaining employment. The wife agreed she had an income earning capacity.
In relation to paragraph 118 of her affidavit, the wife stated that she did not write the words, “I do not know if I would be able to obtain a mortgage on my own” (in relation to her retaining the B Street, Suburb C property). In this context the wife asserted that she told her solicitor that she wanted to retain the B Street, Suburb C property and that she would look for work in that regard. The wife asserted that her proposed order in her Amended Initiating Application filed 5 May 2020 that the properties be both sold had been decided upon by her former lawyers who were “forcing” her to sell such properties.
The wife asserted that the B Street, Suburb C property should not be transferred to the husband by way of court order. Inter alia, the wife stated that post separation she had made the mortgage repayments in respect of this property and that, as a result, herself and the children could not afford proper food during this period.
The wife agreed that she stopped making the mortgage payments on the B Street, Suburb C property in 2022. She stated that despite consent orders on 8 December 2022 that the parties shall equally pay the mortgage repayments for this property until judgment on the final hearing the husband had not made any payments.
In relation to the wife’s claimed Centrelink debt in item 15 of the balance sheet, the wife asserted that during the time the husband was working, she was overpaid benefits by Centrelink and they were now seeking repayment of such overpayments.
The husband was cross-examined personally by the wife, and the wife’s interpreter assisted the wife in this regard.
The husband was asked how he spent the $250,000 borrowed from the bank. In reply, he stated that he borrowed the money against the equity in the D Street, Suburb C property to purchase the B Street, Suburb C property.
The husband was asked how he spent about $49,000 in July 2019. The husband stated that about $47,000 was left over from the $250,000 borrowed from the bank and was spent on tyre replacement, lighting replacement and “all other things for the B Street, Suburb C property” including tiles for the floors.
The husband was asked when the parties were still living together where did he hide his income. The husband replied by stating that he spend it towards family living expenses including mortgage repayments, and his business expenses including GST and income tax.
The husband stated that the wife, during their relationship, had utilised her Centrelink benefits to pay mainly utilities.
The husband was questioned about his withdrawals from his superannuation entitlement. The husband stated that the balance of his superannuation entitlement was at one stage about $120,000 but that figure went up and down and reduced, at one point, to about $113,000. He stated that he had, during COVID-19, experienced hardship and had withdrawn $10,000 from his superannuation entitlement. He then stated that he had also withdrawn $10,000 for his legal fees.
The husband was questioned about his payment of child support. He stated that he usually paid the wife $250 per week for child support. He stated that on occasion he might pay less if he had a relevant expense to pay. The husband stated that previously he had paid certain discrete sums of money for the children, apart from formal child support, for such items as glasses, clothes and shoes.
It was put to the husband that whatever he paid for the children, the wife paid double. The husband replied by stating that it was not necessary for the children to go to a private school, especially when the wife was struggling to meet expenses.
The husband confirmed his affidavit evidence relating to the borrowing of $250,000 against the D Street, Suburb C property to assist in the purchase of the B Street, Suburb C property including paragraphs 44, 45, and 46 of his affidavit.
The husband stated that his prior Motor Vehicle 1 van had been sold for $5,000 in 2020 and after he had purchased an Motor Vehicle 2 van. He stated that his ATO debt of $8,121 had related to his income earned during the parties’ relationship.
Ms K, interpreter, gave brief oral evidence in the husband’s case. She had provided a certification on page 18 of the wife’s affidavit filed 22 July 2022 that she understood both the English and Arabic languages and that she had truly interpreted to the wife the contents of her affidavit and the oath or affirmation which was administered. She effectively refuted the wife’s earlier oral evidence that the wife had only signed her affidavit on four separate pages of the affidavit. She stated that she had an independent recollection relating to the contents of her certification made on 22 July 2022. When shown a copy of the affidavit (without annexures) she confirmed that such copy was the same as the affidavit that she had translated for the wife. She stated that Mr J solicitor was present when she translated the affidavit for the wife. She stated that she had observed the wife sign every page of the affidavit in her presence. The wife briefly cross-examined Ms K. It was put to Ms K that the wife had only signed limited pages of the affidavit to which Ms K disagreed stating that she had seen the wife sign each page of the affidavit.
The Court finds that the wife did in fact sign all pages of her affidavit contrary to her oral evidence. The Court accepts Ms K’s evidence in this context. Even in the absence of Ms K’s evidence, the Court would still have found that the wife did in fact sign all pages of her affidavit contrary to her oral evidence. The Court observes, in this context, that at the end of the first day of the final hearing that the Court gave the wife an opportunity to call as a witness in her case, on this signature issue, her former solicitor Mr J before whom the affidavit of the wife was sworn, and the wife declined this opportunity. In any event, the wife’s belated oral evidence in relation to this signature issue was implausible, in particular her allegation that she had signed four pages of her affidavit but not the remaining pages of that affidavit and that her former solicitors had in some manner inserted her “signatures” on pages of the affidavit that she had allegedly not signed.
LEGAL PRINCIPLES
In Lotta & Lotta [2017] FamCA 50 Foster J stated:
281 The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford (2012) 247 CLR 108 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman (2014) FLC 93–592 and Scott & Danton [2014] FamCAFC 203.
282The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
283Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
284There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
285In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
286In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the wife seeks an order for adjustment of property and the husband contends that there should be no such adjustment.
287It is thus important to ascertain the present property and resources of the parties so as to facilitate a consideration of the s 79(2) question.
288In some circumstances it is not possible to determine whether it is just and equitable to make adjustment orders as to the parties’ present property rights without a consideration of s 79 (4) matters.
289Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).
290The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92–877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.
BALANCE SHEET
The balance sheet of the parties, as contended by the husband and wife (after the wife’s legal representatives were given leave by the Court to withdraw), is now set out:
BALANCE SHEET Ownership Description Applicant’s Value Respondent’s Value Assets 1 Joint B Street, Suburb C, NSW $930,000 $930,000 2 H Net sale proceeds from sale of D Street, Suburb C (held in Respondent solicitor trust account) $694,593 $694,593 3 H Motor Vehicle 2 Van E $21,500 $21,500 4 W Motor Vehicle 3 E $4,000 $4,000 5 H Household contents E $5,000 $5,000 6 W Household contents E $5,000 $5,000 7 W Jewellery E $6,000 $6,000 8 W Cash at bank $17 $17 9 H Cash at bank (ANZ) $5,458 $5,458 Total $1,671,568 $1,671,568 Addbacks 10 H Sale of Motor Vehicle 1 Van $15,000 Nil 11 H Unexplained bank withdrawals $258,000 Nil 12 H Superannuation withdrawals $20,000 Nil Total $293,000 Nil Liabilities 13 Joint Mortgage to ANZ Bank for B Street, Suburb C $575,532 $575,532 14 W Centrelink debt $16,229 $16,229 15 H ATO debt 0 $8,121 16 Joint Suburb C City Council for B Street, Suburb C $3,979 $3,979 Total $595,740 $603,861 Superannuation Member Name of Fund Type of Interest Applicant’s Value Respondent’s Value 17 H Super Fund 1 Accumulation interest $95,336 $95,336 Total $95,336 $95,336 Net Total Assets Total $1,459,164 $1,163,043
As to item 10, the Court rejects the wife’s contended addback of $15,000 for the sale of the Motor Vehicle 1 van; the Court accepts the husband’s evidence that he sold this van for $5,000 and that such sum was paid to pay off the wife’s Company L credit card (see paragraph 40 of the husband’s affidavit).
In relation to item 11, the wife’s contended addback of about $258,000, the wife confirmed to the Court that she had calculated this sum by reference, in particular, to what she contended was an unexplained increase in the D Street, Suburb C property mortgage from about $192,000 to about $450,000. In this context, she agreed with the Court’s observation that these approximate figures of $192,000 and $450,000 broadly equated with monetary figures in the ANZ Residential Investment Loan Statement Number … being Annexure F to the husband’s affidavit (page 25 of 39 in that affidavit).
The Court rejects the wife’s contended addback of about $258,000, except as to a payment of $1,800 to the husband’s lawyers and $10,000 paid by the husband to his elder sons. The Court accepts the husband’s evidence, both in his affidavit and oral evidence, relating to his borrowings of $250,000 against the D Street, Suburb C property mortgage in about August 2018 and the manner in which that sum of money was disbursed, particularly in relation to the dispersal of monies in respect to the purchase of the B Street, Suburb C property. Specifically, $110,224 was used to fund a shortfall in the purchase of the B Street, Suburb C property, noting that the specific ANZ mortgage loan for that property was the sum of $620,000. The sum of $77,510 was utilised for the deposit on the purchase of the B Street, Suburb C property. The sum of $10,310 was utilised for payment of building works at the B Street, Suburb C property (see Exhibit D; a payment to Company F).
As to the husband’s withdrawals of about $47,655 between about 21 May 2019 to about 9 August 2019 (see Annexure E to the wife’s affidavit), the Court accepts the husband’s evidence that of this sum he spent about $5,000 to make mortgage repayments, he spent up to about $5,000 on renovations to the B Street, Suburb C property, he spent up to about $10,000 to assist his elder sons from a prior relationship, he spent about $1,800 on his lawyer’s fees, he spent some monies on van repairs, and he spent about $10,000 on his own personal expenses (the wife did not cross-examine the husband to suggest that such personal expenses were unreasonably incurred by the husband).
As to item 12, the husband’s superannuation withdrawals totalling $20,000, the Court accepts the husband’s evidence that his first superannuation withdrawal of $10,000 related to his financial hardship suffered during COVID-19, and that such withdrawal should not be added back. As to the second withdrawal of $10,000 in payment of counsel’s fees, the Court would infer that this second withdrawal was made sometime after COVID-19 commenced in 2020. The parties separated under the one roof on about 23 March 2019, almost four years ago. There is no specific evidence as to the value of the husband’s superannuation entitlement at separation date. As at the date of the husband’s affidavit, his superannuation balance was about $93,758. It is now valued at $95,336. The Court finds that the wife, both during the parties’ relationship and post separation to date, has indirectly contributed to the husband’s superannuation entitlement through her primary care of the children; her care of the children has effectively enabled the husband to work in employment to the extent that he has done so and thereby accumulate his superannuation entitlements. Accordingly the Court will add back, in favour of the wife, the sum of $10,000 paid by the husband for his counsel’s fees.
In relation to item 15, the husband’s ATO debt, the Court accepts the husband’s evidence that such debt related to income that he had earned during the parties relationship and accordingly will remain as a matrimonial debt in item 15.
The final balance sheet accordingly will be as follows:
FINAL BALANCE SHEET Ownership Description Applicant’s Value Respondent’s Value Assets 1 Joint B Street, Suburb C, NSW $930,000 $930,000 2 H Net sale proceeds from sale of D Street, Suburb C (held in Respondent solicitor trust account) $694,593 $694,593 3 H Motor Vehicle 2 Van E $21,500 $21,500 4 W Motor Vehicle 3 E $4,000 $4,000 5 H Household contents E $5,000 $5,000 6 W Household contents E $5,000 $5,000 7 W Jewellery E $6,000 $6,000 8 W Cash at bank $17 $17 9 H Cash at bank (ANZ) $5,458 $5,458 Total $1,671,568 $1,671,568 Addbacks 10 H Sale of Motor Vehicle 1 Nil Nil 11 H Unexplained bank withdrawals $11,800 $11,800 12 H Superannuation withdrawals $10,000 $10,000 Total $21,800 $21,800 Liabilities 13 Joint Mortgage to ANZ Bank for B Street, Suburb C $575,532 $575,532 14 W Centrelink debt $16,229 $16,229 15 H ATO debt $8,121 $8,121 16 Joint Suburb C City Council for B Street, Suburb C $3,979 $3,979 Total $603,861 $603,861 Superannuation Member Name of Fund Type of Interest Applicant’s Value Respondent’s Value 17 H Super Fund 1 Accumulation interest $95,336 $95,336 Total $95,336 $95,336 Net Total Assets Total $1,184,843 $1,184,843
From the above, it can be seen that the parties’ net non-superannuation assets are $1,089,507 (which include the total addbacks of $21,800) and the husband’s superannuation is $95,336. The total net asset pool is accordingly $1,184,843.
SECTION 79(2) OF THE ACT
The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of their property, and the fact that the continuance of the current legal ownership of their property would not afford them justice and equity.
CONTRIBUTIONS
The parties’ cohabitation in Australia commenced in about 2007. They had been married in Country M in 2006. Final separation occurred on about 23 March 2019.
Prior to the parties’ commencement of cohabitation in Australia, the wife had no significant property. Prior to the parties’ marriage the husband had about $20,000 in superannuation and about $70,000 in cash.
The husband contributed from his savings about $50,000 towards the purchase of the D Street, Suburb C property, which property was purchased in about 2009.
During the parties’ relationship the husband worked full time as a transport worker. During this time, he contributed his earnings towards, inter alia, the repayment of the mortgage loans on the D Street, Suburb C and B Street, Suburb C properties, towards renovations of the D Street, Suburb C and B Street, Suburb C properties, and towards the living expenses of the parties and family.
During the relationship and to date the wife has been the primary carer of the parties’ three children; the first child was born in 2008, the second child was born in 2009, and the third child was born in 2011. This has been a very significant contribution by the wife. The husband had also contributed to the care of the children but, by reason of his employment commitment, this contribution was to a modest extent only when compared with the wife’s very significant contribution in this regard.
The Court finds that during the parties’ relationship the wife performed the majority of household tasks (both when the family were living at the D Street, Suburb C property and thereafter at the B Street, Suburb C property) although there was some modest contributions in this regard by the husband, including some gardening work and weekend shopping assistance, with the Court observing that he worked full-time in his employment during the working week. The Court also takes into account in this context the wife’s annual house painting of the D Street, Suburb C property, a three bedroom house, (with the Court observing that this property was lived in by the parties from about 2009 to 2018) including her painting of the granny flat (two bedrooms) at that property in between each tenancy.
Post separation, the wife and children resided in the B Street, Suburb C property from about late 2018 with the husband vacating that property in about mid-September 2019 when he resumed his residence in the D Street, Suburb C property. Thereafter, the wife met the mortgage repayments for the B Street, Suburb C property alone, and the husband met the mortgage repayments for the D Street, Suburb C property alone.
To make ends meet, the wife leased a granny flat in Suburb C in late December 2019, where she lived with the children, being $350 per week, until May 2021; during that time the wife leased out the B Street, Suburb C property to a tenant with the rental income being used to meet the mortgage repayments for the B Street, Suburb C property. The wife and children returned to live in the B Street, Suburb C property in May 2021. On returning to this property the wife, noticing damage to the walls and other parts of the house, painted the house, which the Court takes into account. The wife continued to meet the mortgage repayments for this property. The Court accepts the wife’s evidence relating to hardship relief which each party received, at different times, in relation to the mortgage debts on each property.
The husband’s superannuation asset is now valued at $95,336. The husband states that the parties were married in 2006 in Country M. He states that prior to the marriage he had about $20,000 in superannuation but gives no evidence as to whether this superannuation in Country M was utilised in relation to his superannuation entitlement in Australia with Super Fund 1. The parties had arrived in Australia in 2007. The Court finds that the wife indirectly contributed to the accumulation of the husband’s superannuation entitlement with Super Fund 1 through her primary care of the children during the parties’ relationship and to date; her primary care of the children enabled the husband to work to the extent that he has done so in employment during such period and thereby accumulate his superannuation entitlement.
Taking into account the above matters, and viewing the parties’ overall contributions holistically, the Court assesses the parties’ contributions to non-superannuation assets and the superannuation asset to be about equal.
SECTION 75(2) OF THE ACT
The husband is 67 years, and the wife 50 years.
The parties’ children are aged 14 (almost 15), 13, and 11. The children live with the wife and spend quite modest time with the husband each Tuesday and Thursday evenings and each Saturday afternoon, as well as on special occasions, pursuant to the final parenting orders made in March 2021. Accordingly, the wife will remain the children’s primary care for a considerable period of time into the future and to a significant extent by reference to the quite modest time that the husband spends with them.
The husband presently pays formal child support to the wife in the sum of about $250 per week. Historically, the husband has incurred arrears in paying such child support (for example, in January 2022 he was in arrears in the sum of about $5,113, with the Court noting that by November 2022 he had reduced such arrears to about $1,568). The husband occasionally purchases items for the children such as clothes. The wife, apart from her receipt of formal child support, utilises her Centrelink benefits to assist in meeting the expenses relating to the children, including private school fees. In this context, the Court also takes into account the prospect that the extent of the husband’s payment of child support may diminish with his prospective retirement from work and which is discussed further below.
The wife enjoys good health. Whilst she has an earning capacity the Court observes that to date such earning capacity has been largely unexercised. The wife worked casually in a shop in Suburb C for about four months in 2021 earning almost $20 per hour for 20 hours per week. She receives JobSeeker benefits and has registered with an employment agency seeking work. She can read English. She speaks English albeit with a very thick accent. She speaks Arabic, being her primary language. She has the primary care of the three children, the youngest of whom is only 11 years old. Any employment that the wife obtains will need to factor in her primary care of the children, and the Court accepts the wife’s evidence that in light of the eldest child’s Type 1 diabetes any employment that she secures would need to be located near to the children’s school.
The Court would assess that the wife probably only has a modest earning capacity, most likely in casual employment, perhaps similar to the work in the shop, with the Court again observing that the wife has a very limited past employment record, she is aged 50 years, and any employment secured would need to be located near to the children’s school. During oral submissions, the wife told the Court that in the event that the Court did not afford her an opportunity to retain the B Street, Suburb C property she had an intention to establish her own business, however the Court would assess this plan as speculative, noting that the wife adduced no sworn testimony or other evidence in this regard, and she has no business experience.
The husband, aged 67 years, who works as a transport worker (sub-contractor of Company N), by reference to his historical work income, has a greater earning capacity than the wife; his total average weekly income is $1,500 gross per week.
The husband has a number of medical conditions for which he ingests medication and asserts that he suffers from fatigue although he adduces no medical evidence in this regard. He had a heart attack in mid 2020 and then had triple bypass surgery. He alleges that his medical conditions are only going to worsen over time and that his earning capacity has already lessened due to “health”, however he adduces no medical evidence to this effect. Whilst he does not assert any specific intention to retire in the near future, the Court nevertheless takes into account the husband’s age, 67 years, and places some weight on his evidence relating to his fatigue, both of which may prospectively contribute to a reduction of his working life.
The husband has a modest superannuation entitlement in the sum of $95,336.
The wife sought a 15 per cent adjustment under section 75(2) of the Act. The husband sought a five per cent adjustment under section 75(2).
Taking into account the above matters, there should be an adjustment in favour of the wife of ten per cent; thus the adjusted contributions finding is 60 per cent to the wife and 40 per cent to the husband. With the net property pool being $1,184,843, such adjusted contributions finding results in the wife receiving $710,905 and the husband $473,937 representing a difference of $236,968.
JUSTICE AND EQUITY
Pursuant to the Court’s adjusted contribution assessment, the husband should be left with assets representing, in value, 40 per cent of the net assets including superannuation, being $473,937 (40 per cent of $1,184,843).
The wife will be entitled to 60% per cent of the net assets including superannuation, a sum of $710,905 (60 per cent of $1,184,843).
Should the wife retain:
(a)The B Street, Suburb C property: $930,000;
(b)Her household contents: $5,000;
(c)Her car: $4,000;
(d)Her jewellery: $6,000;
(e)Her cash: $17
totalling $945,017,
and should the wife retain the following liabilities:(a)B Street, Suburb C property mortgage debt: $575,532;
(b)Centrelink debt: $16,229;
(c)Suburb C City Council debt for the B Street, Suburb C property: $3,979;
totalling $595,740,
leaving her with net assets of $349, 277,
then the wife will need to receive cash of $361,628 (being $710,905 less $349,277). Such cash could be paid from the net sale proceeds of the D Street, Suburb C property. Should the wife utilise such cash of $361,628 to pay off the Centrelink debt and Council debt (total $20,208), and pay her outstanding legal costs (from item 54 of the wife’s Financial Statement filed 22 July 2022, such legal costs estimated to be at least about $115,000), such debts and legal costs totalling some $135,208, then she may have remaining cash of about $226,420 ($361,628 less $135,208) to reduce the mortgage debt on the B Street, Suburb C property to about $349,112 (present mortgage debt $575,532 less $226,420). Taking into account that the wife and children have been living in the B Street, Suburb C property both before and after separation, and also observing the wife is the primary carer of the children and needs to house both herself and the children, it is just and equitable to afford the wife an opportunity to acquire the B Street, Suburb C property before the husband.Should the husband retain:
(a)His ANZ cash: $5,458;
(b)His household contents: $5,000;
(c)His Motor Vehicle 2 van: $21,500;
(d)His superannuation: $95,336;
totalling $127,294,
and retain the following liabilities:(a)ATO debt: $8,121;
leaving him with net assets of $119, 173,
then the husband will need to receive cash of $332,964 (being $473,937 less $119,173 less the addbacks in the wife’s favour of $21,800). Such cash could be paid from the net sale proceeds of the D Street, Suburb C property. In these circumstances, the husband will retain his superannuation entitlement of $95,336, his modest ANZ cash and household contents, together with cash of $332,964 with which he could invest and rent accommodation or possibly utilise towards the purchase of a residence.The Court is of the view that its proposed property adjustment orders will represent a just and equitable property settlement between the parties.
The Court makes Orders accordingly.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 23 February 2023
0
5
0