Ogburn & Waymark
[2021] FCCA 1686
•23 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Ogburn & Waymark [2021] FCCA 1686
File number(s): MLC 2401 of 2020 Judgment of: JUDGE HOWE Date of judgment: 23 July 2021 Catchwords: FAMILY LAW – ten year defacto relationship – significant initial contributions – balance of financial and non-financial contributions during the relationship – future needs of each party – ability to gain employment – ability of parties to refinance and maintain former matrimonial home – use of one party’s entire superannuation benefits during the relationship for benefit of the relationship. Legislation: Evidence Act 1995 (Cth) s 140(2)
Family Law Act 1975 (Cth), ss 90SF(3), 90SM(3), 90SM(4)(a) ,90SM(4)(b), 90SM(4)(c)
Cases cited: Briginshaw v Briginshaw [1938] HCA 34 Number of paragraphs: 114 Date of last submission/s: 11 June 2021 Date of hearing: 9-11 June 2021 Place: Melbourne Counsel for the Applicant Mr Testart Solicitors for the Applicant Martin Street Lawyers Counsel for the Respondent Mr Combes Solicitors for the Respondent J A Middlemis ORDERS
MLC 2401 of 2020 BETWEEN: MS OGBURN
Applicant
AND: MR WAYMARK
Respondent
ORDER MADE BY:
JUDGE HOWE
DATE OF ORDER:
23 JULY 2021
THE COURT ORDERS THAT:
1.The Respondent pay the Applicant the sum of $500,500 (“the payment”) on or before 5.00pm on 20 August 2021 (“the date”) by depositing the payment into the trust account of the Applicant’s legal practitioner.
2.Contemporaneously with the payment, the Applicant do all such acts and things and sign all such documents to transfer to the Respondent, at his expense, all of her right title and interest in the property situate at and known as B Street, Town C in the state of Victoria (“the B Street, Town C Property”) subject to all rates, taxes or other encumbrances.
3.The Respondent be and is hereby restrained from disposing of or encumbering the B Street, Town C Property until such time as the payment has been made save for the purpose of raising funds for the payment.
4.If the payment is not made by the date, the B Street, Town C Property be forthwith placed on the market for sale on or before 5.00pm on 10 September 2021 as follows:
(a)The Applicant and the Respondent shall do all acts and sign all documentation as deemed necessary to cause the B Street, Town C Property to be sold; and
(b)The Applicant and the Respondent are to elect an authorised selling agent (“the B Street, Town C selling agent”) to facilitate the sale of the B Street, Town C Property. In the event that the parties are not able to agree as to the nomination of the B Street, Town C selling agent then the following shall apply:
(i)The Applicant is to nominate three authorised selling agents and to communicate the names and fees of these agents to the Respondent and his legal practitioner via email;
(ii)Within 7 days of such notice being sent, the Respondent is to elect one of the agents and to advise the Applicant via email; and
(iii)In the event that the Respondent fails to elect an agent from the nominated agents provided to him or if he fails to respond within 7 days of the notice being sent pursuant to these orders, the Applicant shall be authorised to elect a selling agent of her choice and engage the selling agent to place the property on the market for sale.
5.The terms and conditions of the sale of the B Street, Town C Property are as follows:
(a)By private treaty or private sale as agreed between the parties and in default of agreement, the method of sale shall be as recommended by the B Street, Town C selling agent;
(b)The reserve price shall be as agreed between the parties and in default of agreement, the reserve price shall be as recommended by the B Street, Town C selling agent;
(c)In the event that there is a dispute as to the terms and conditions of sale, then the parties shall engage the services of the President of the Real Estate Institute of Victoria or their agent; and
(d)The parties are to agree upon the conveyancer and in default of agreement, the conveyancer shall be as recommended by the B Street, Town C selling agent.
6.With respect to the sale of the B Street, Town C Property, both the Applicant and the Respondent are to:
(a)Cooperate with the selling agent and to comply with all reasonable requests of the B Street, Town C selling agent for the preparation of the property for sale;
(b)Sign all documents as requested by the B Street, Town C selling agent in relation to the listing for sale of the property;
(c)Provide the selling agent with a key to the property if requested to do so;
(d)Make the property available for inspections, both general inspections and privately arranged inspections, or to the selling agent for advertising purposes; and
(e)Keep the property in a good condition, including ensuring that the property and gardens are maintained.
7.The proceeds of sale of the B Street, Town C Property are to be distributed as follows:
(a)First: Pay all costs and expenses of sale, including any legal or conveyancer costs and disbursements and the agent’s commissions of sale;
(b)Second: Payment to either party such sums as either of them may have prepaid to either the B Street, Town C selling agents or conveyancers prior to the completion of sale; and
(c)Third: The balance of proceeds to be distributed:
(i)65% to the Applicant; and
(ii)35% to the Respondent.
8.On or before 5.00pm on 20 August 2021, the Applicant and the Respondent shall do all acts and sign all documentation as deemed necessary to cause the sale of the property situate at and known as D Street, Suburb E in the state of Victoria (“the D Street, Suburb E Property”):
9.On or before 5.00pm on 6 August 2021, the Applicant and the Respondent are to elect an authorised selling agent (“the D Street, Suburb E selling agent”) to facilitate the sale of the D Street, Suburb E Property. In the event that the parties are not able to agree as to the nomination of the D Street, Suburb E selling agent then the following shall apply:
(a)The Applicant is to nominate three authorised selling agents and to communicate the names and fees of these agents to the Respondent and his legal practitioner via email;
(b)Within 7 days of such notice being sent, the Respondent is to elect one of the agents and to advise the Applicant via email; and
(c)In the event that the Respondent fails to elect an agent from the nominated agents provided to him or if he fails to respond within 7 days of the notice being sent pursuant to these orders, the Applicant shall be authorised to elect a selling agent of her choice and engage the selling agent to place the property on the market for sale.
10.The terms and conditions of the sale of the D Street, Suburb E Property are as follows:
(a)By private treaty or private sale as agreed between the parties and in default of agreement, the method of sale shall be as recommended by the D Street, Suburb E selling agent;
(b)The reserve price shall be as agreed between the parties and in default of agreement, the reserve price shall be as recommended by the D Street, Suburb E selling agent;
(c)In the event that there is a dispute as to the terms and conditions of sale, then the parties shall engage the services of the President of the Real Estate Institute of Victoria or their agent; and
(d)The parties are to agree upon the conveyancer and in default of agreement, the conveyancer shall be as recommended by the D Street, Suburb E selling agent.
11.With respect to the sale of the D Street, Suburb E Property, both the Applicant and the Respondent are to:
(a)Cooperate with the D Street, Suburb E selling agent and to comply with all reasonable requests of the D Street, Suburb E Property selling agent for the preparation of the property for sale;
(b)Sign all documents as requested by the D Street, Suburb E selling agent in relation to the listing for sale of the property;
(c)Provide the D Street, Suburb E selling agent with a key to the property if requested to do so;
(d)Make the property available for inspections, both general inspections and privately arranged inspections, or to the selling agent for advertising purposes; and
(e)Keep the property in a good condition, including ensuring that the property and gardens are maintained.
12.The proceeds of sale of the D Street, Suburb E Property are to be distributed as follows:
(a)First: Pay all costs and expenses of sale, including any legal or conveyancer costs and disbursements and the agent’s commissions of sale;
(b)Second: Discharge the mortgage currently secured over the property with the Bank F, mortgage …;
(c)Third: Payment to either party such sums as either of them may have prepaid to either the D Street, Suburb E selling agent or conveyancer prior to the completion of sale;
(d)Fourth: $50,000 to be placed into the trust fund of the applicant’s legal representative for the payment of Capital Gains Tax associated with the sale of the D Street, Suburb E property, with such funds to be payable upon an advice or request for payment from the Australian Taxation Office and once paid, the remaining funds are to be distributed:
(i)65% to the Applicant; and
(ii)35% to the Respondent
(e)Fifth: 65% of proceeds to be paid to the Applicant;
(f)Sixth: Payment to the Applicant of $37,698.00 being $40,008.00 (the Wife’s 65% share of the Husband’s superannuation) minus $2,310.00 (the Husband’s 35% share of the Wife’s Motor Vehicle 1); and
(g)Seventh: the balance of proceeds to be paid to the Respondent.
13.On or before 5.00pm on 13 August 2021, the Applicant is to cause the sale of the Motor Vehicle 2 currently in her possession with an independent and authorised car sales agent, upon the following conditions:
(a)The Applicant is to advise the Respondent of the name of the authorised car sales agent via email;
(b)In the event that the Respondent does not agree to the selected care sales agent, then within 7 days the Respondent is to nominate three authorised car sales agents and to communicate the names and fees of these agents to the Applicant and her legal practitioner via email;
(c)Within 7 days of such notice being sent, the Applicant is to elect one of the agents and to advise the Respondent via email; and
(d)In the event that the Respondent fails to nominate an agent or fails to respond within 7 days of the notice being sent pursuant to these orders, the Applicant shall be authorised to elect and engage an authorised car sales agent of her choice.
14.Upon the sale of the Motor Vehicle 2, the proceeds of settlement are to be divided as follows:
(a)First : All costs associated with the sale and the selling agents fees; and
(b)Second: Proceeds are to be distributed:
(i)65% to the Applicant; and
(ii)35% to the Respondent.
15.On or before 5.00pm on 13 August 2021, the Respondent is to cause the sale of the Motor Vehicle 3 currently in his possession with an independent and authorised car sales agent upon the following conditions:
(a)The Respondent is to advise the Applicant of the name of the authorised car sales agent, via email;
(b)In the event that the Applicant does not agree to the selected car sales agent, then within 7 days the Applicant is nominate three authorised car sales agents and to communicate the names and fees of these agents to the Respondent and his legal practitioner, via email;
(c)Within 7 days of such notice being sent, the Respondent is to elect one of the agents and to advise the Applicant via email; and
(d)In the event that the Applicant fails to nominate an agent or fails to respond within 7 days of the notice being sent pursuant to these orders, the Respondent shall be authorised to elect and engage an authorised car sales agent of his choice.
16.Upon the sale of the Motor Vehicle 3, the proceeds of settlement are to be divided as follows:
(a)First, all costs associated with the sale and the selling agents fees; and
(b)Secondly, Proceeds are to be distributed:
(i)65% to the Applicant; and
(ii)35% to the Respondent.
17.The Applicant is to retain the following items currently held at the B Street, Town C Property, with collection to occur within 21 days of these orders:
(a)Coffee table in lounge;
(b)Black unit TV owned by the Applicant prior to the relationship;
(c)TV on black unit;
(d)Outdoor metal table;
(e)Mirror in bathroom;
(f)Couch owned by the Applicant prior to the relationship;
(g)Dryer purchased at the commencement of the relationship;
(h)Two wooden candle holders (large white) given to the Applicant as a gift from deceased sister;
(i)Cutlery – the gift from the Applicant’s aunty; and
(j)Tubs, books and artwork in shed.
18.Until the settlement of sale for the D Street, Suburb E Property pursuant to these orders:
(a)The Applicant have the sole use and occupation of the D Street, Suburb E Property;
(b)The Applicant is to pay all mortgage payments as they fall due and payable, noting such payments are currently from an offset account;
(c)The Applicant is to pay all utilities and outgoings on the D Street, Suburb E Property as they fall due and payable;
(d)The Applicant shall indemnify the Respondent from all and any liabilities associated with the D Street, Suburb E Property, save as provided for in these orders; and
(e)Both parties are hereby restrained by injunction from further encumbering the D Street, Suburb E Property.
19.Until the payment or settlement of sale for the B Street, Town C Property pursuant to these orders:
(a)The Respondent have the sole use and occupation of the B Street, Town C Property;
(b)The Respondent is to pay all utilities and outgoings on the B Street, Town C Property as they fall due and payable;
(c)The Respondent shall indemnify the Applicant from all and any liabilities associated with the B Street, Town C Property, save as provided for in these orders; and
(d)Both parties are hereby restrained by injunction from further encumbering the B Street, Town C Property.
20.The parties be at liberty to provide a copy of these orders to the authorised real estate agents and the authorised car selling agents prior to the distribution of funds.
21.In the event that either party receives funds that are not in accordance with these orders from any of the selling agents, then such funds to give effect to these orders are to be paid to the other party with 48 hours of receipt.
22.In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these orders then the Registrar of the court be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed or instrument in the name of the defaulting party and to do all things necessary to give validity and operation to the deed of instrument.
23.Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these orders or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the D Street, Suburb E Property being deemed to be in the possession of the Wife and the furniture, personal possessions, and like chattels in the B Street, Town C Property being deemed to be in the possession of the Husband);
(b)All money in bank accounts in each party’s name or in which they have an interest in shall be retained by them;
(c)Monies standing to the credit of the parties’ in any joint bank account are to be divided equally between the parties and thereafter any such account be closed;
(d)Insurance policies remain the sole property of the owner named thereon;
(e)Each party retain for their sole use and benefit their superannuation entitlements;
(f)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(g)Any joint tenancy of the parties’ in any real or personal estate is hereby expressly severed.
24.All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
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 under the pseudonym Ogburn & Waymark is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HOWE
INTRODUCTION
This matter relates to the adjustment of the parties’ property interests following the breakdown of a de-facto relationship of 10 years pursuant to the provisions of section 90SM of the Family Law Act 1975 (Cth) (“the Act”). Although the parties never married, for ease of reference I will refer to the Applicant as the Wife and the Respondent as the Husband.
The Wife was born in 1959 and is currently 62 years of age. She is currently unemployed and has provided evidence to the Court that she no longer has the capacity to gain paid employment. I will refer to this further in these reasons.
The Wife has four children from a previous relationship, however, all of these children had attained adult age at the commencement of the relationship with the Husband and did not reside with the parties during the relationship. The children were also financially independent from the parties.
Prior to her relationship with the Husband, the Wife had been previously married to Mr G for some 11 years. This relationship concluded in or about 2005 and the Wife was in receipt of funds by virtue of a property settlement.
The Husband was born in 1964 and is 57 years of age. He is presently unemployed, however, he has previously operated a business called Company H (“the Company H business”), with this company ceasing to operate from September 2019. As I will detail in these reasons, the Husband has indicated that he has the capacity to work and also has grandiose plans in relation to work that he seeks to undertake in the field of science.
The Husband’s evidence is that he enjoys reasonable health, although he does suffer from some anxiety arising from the breakdown of the relationship. The Husband has been married on three previous occasions and has one child from a previous marriage, Ms J born in 1989. This child did not reside with the parties throughout the relationship.
The parties commenced their relationship on or about 2009, with cohabitation occurring on or about 2009 and final separation occurring in November 2019. There are no children of the relationship.
The Wife currently resides in the D Street, Suburb E Property and it is her intention that this property be sold and therefore she will need to rehouse herself. The D Street, Suburb E Property is currently encumbered by a mortgage, however, there is money in the redraw account that is currently sufficient to cover the mortgage repayments.
The Husband currently resides in the B Street, Town C Property. It is his intention that he retains this property as part of the property settlement. There is no mortgage currently secured over this property.
LEGAL PRINCIPLES IN RELATION TO DE-FACTO PROPERTY SETTLEMENT
In these reasons, any findings of fact are made on the balance of probabilities. I have read the material carefully and I have also had the benefit of observing the parties and the Husband’s witness throughout this trial. I have regard to section 140(2) of the Evidence Act 1995 (Cth) and the comments made by Dixon J in Briginshaw v Briginshaw [1938] HCA 34, which I am entitled to take into account given the nature of the subject matter of these proceedings and the gravity of the matters alleged in applying that standard of proof. As stated by His Honour:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
Section 90SM(1) of the Act empowers the Court to make orders altering the property interests of the parties to a de-facto relationship but only if it is satisfied that, in the circumstances of the case, it is just and equitable to do so as per section 90SM(3) of the Act. The first step in such a process is to identify the parties’ legal and equitable property interests. The major assets are the two real properties owned by the parties, the Husband’s superannuation and some motor vehicles.
Both parties made financial contributions to the assets accumulated throughout the relationship inclusive of a joint endeavour of working which allowed the parties to pay the mortgages secured over the properties.
I am satisfied, in the current circumstances where there has been a de-facto relationship of 10 years that has produced jointly acquired assets, it is just and equitable for an order to be made.
Any alteration in the property interests must be determined by reference to the following factors:
(a)First, the contributions of the parties to the acquisition, conservation or improvement of the property and to the welfare of the family as provided in subsections 90SM(4)(a), 90SM(4)(b) and 90SM(4)(c) of the Act; and
(b)Secondly, the matters set out in the remaining subsections of 90SM(4) of the Act which incorporate section 90SF(3) of the Act. Those matters broadly require consideration of the financial position and resources of the parties, their age and state of health, their necessary commitments in supporting themselves or any other person, the duration of their relationship and the extent to which it has affected the earning capacity of either party, the effect of any proposed order on the earning capacity of either party and any other fact or circumstance which the justice of the case requires to be taken into account.
I am also permitted to take into account any other fact or circumstances which I consider that the justice of the case requires that I consider.
THE EVIDENCE
The Wife seeks to rely upon the following documents:
(a)Further Amended Initiating Application filed 28 April 2021;
(b)Trial Affidavit filed 14 May 2021;
(c)Financial Statement filed 7 June 2021;
(d)Two Affidavits of Mr K, both filed 7 June 2021;
(e)Affidavit of Ms L filed 7 June 2021; and
(f)Case Summary filed 8 June 2021.
The Husband seeks to rely upon the following documents:
(a)Trial Affidavit filed 20 May 2021;
(b)Financial Statement filed 7 June 2021;
(c)Case Summary filed 7 June 2021;
(d)Affidavit of Ms M filed 10 June 2021; and
(e)Affidavit of Mr N filed 10 June 2021.
THE PROPERTY AVAILABLE FOR DIVISION
Unfortunately, despite orders being made prior to the trial for the joint valuation of the real properties, this task was not undertaken. The Wife, of her own volition, had previously obtained a valuation of the real properties and these were provided to the Court. The Husband did not obtain any evidence as to the value of the real properties and therefore I was not provided with an agreed asset pool. At the commencement of the final hearing the parties agreed on the value of the D Street, Suburb E Property, however, the value of the B Street, Town C Property was not agreed until closing submissions.
It is worthy to note that there was an order made on 26 May 2021 by Registrar Mathews requiring the parties to jointly request an urgent updated valuation by O Valuers, with the Husband to be responsible for the costs and for the Husband to file this report with the Court. The valuation was not completed or filed with the Court.
During closing submissions, Counsel for the Husband made a concession on behalf of his client that despite all the evidence to the contrary of an acceptance of the value, the Husband was now accepting the valuation of the B Street, Town C Property as per the Wife’s evidence. With regard to the motor vehicles, the parties, once again, could not agree as to the value of the Motor Vehicle 2 in the Wife’s possession or the Motor Vehicle 3 in the Husband’s possession.
In circumstances where I did not have an agreed value or any single expert valuation, I advised each of the parties that I would have no other option than to sell the disputed asset and then determine an appropriate division of the net proceeds. This indication was provided on the first day of the trial and repeated on several occasions throughout the three days of hearing.
Held By Description Agreed Value ASSETS 1 J D Street, Suburb E $850,000 2 J B Street, Town C $770,000 3 J ANZ Account #...29 $25 4 W Westpac # …54 $4,400 5 W Motor Vehicle 1 $6,600 6 W Motor Vehicle 2 Not agreed 7 W Personal Property in B Street, Town C Property Not agreed 8 H Westpac A1 Account $6,800 9 H Motor Vehicle 3 Not agreed 10 H Superannuation $61,895 11 W Superannuation $223 Total $1,699,943 LIABILITIES
1 J D Street, Suburb E Property Mortgage $596,000 2 W Westpac $202 3 W ANZ Credit Card $4,074 Total $600,276
The values of assets that are not agreed have not been included in the total values contained within the table and there will be an order for the sale of each item with the proceeds divided in the same percentage proportions as other assets.
Chattels
To the parties’ credit, I was provided with a list of chattels currently within the B Street, Town C Property that the Wife shall retain. The agreed chattels are:
(a)Coffee table in lounge;
(b)Black unit that the television is on (owned by the Wife prior to the relationship);
(c)Television on black unit;
(d)Outdoor metal table;
(e)Mirror in bathroom;
(f)Couch (owned by the Wife prior to the relationship);
(g)Dryer;
(h)Two wooden candle holders (large white) (gifts given to the Wife from her deceased sister);
(i)Cutlery (gift from Wife’s aunty owned by the Wife prior to the relationship); and
(j)Tubs, books and artwork in shed.
Initial Contributions
It was the Wife’s evidence that some months prior to the commencement of cohabitation, she had purchased a property situated at P Street, Suburb Q in the state of Victoria (“the P Street, Suburb Q Property”). The P Street, Suburb Q Property was purchased for $532,000 with some unquantified additional costs associated with stamp duty. The Wife entered into a mortgage agreement with the Westpac Bank of Australia (“Westpac”) for a loan to the value of $250,000 as per annexure B-1 of her affidavit filed 14 May 2021. To fund the remaining costs, the Wife gave evidence that she had approximately $46,000 in a savings account and approximately $340,000 - $360,000 from the proceeds of sale of a previously owned property. The entirety of the $340,000 - $360,000 as claimed by the Wife was not supported by the evidence, however, during cross-examination, the Wife gave evidence that she received into her bank account three separate instalments of $100,000 in November 2019 ($300,000 in total) from the sale of the previously owned property, and a further $24,193 on 23 November 2019 and the Wife tendered bank statements to this effect that were marked as Exhibit W3. This results in a $324,193.00 initial contribution on behalf of the Wife.
At the time of purchasing the P Street, Suburb Q Property, the Wife was earning approximately $100,000 per annum whilst being in full-time employment as a sales representative with Employer R.
The Wife also gave evidence that the $46,000 that she had in savings at the commencement of the relationship was ultimately utilised to pay off a car loan, living expenses and payment of any shortfall in the expenses associated with the P Street, Suburb Q Property. This money was, however, available to the parties when they made an application for a home loan with Westpac in contemplation of the purchase of the D Street, Suburb E Property. The evidence contained in the undated Loan Application document with Westpac which was marked as Exhibit W2 (“Loan Application”), showed that the Wife had declared to Westpac that she had cash/bank accounts in the amount of $44,542 at the time of completing the Loan Application.
The Wife was challenged as to the accuracy of her reporting on the Loan Application, given that she had provided the value of the P Street, Suburb Q Property to the bank in the section titled “Your Financial Position – Assets (what you own)” but did not include the associated liability. It was put to the Wife that in light of this, she was not truthful in her provision of information on the Loan Application. The Wife gave evidence that she was of the belief that the question in that particular section of the Loan Application was in reference to the value of the P Street, Suburb Q Property and that she had provided particulars of the liability, being the mortgage, in the section titled “Your Financial Position – Liabilities (what you owe)” of the same application. I find her explanation to be accurate.
In or around August 2018 the P Street, Suburb Q Property was sold for $1,118,000. The proceeds of settlement were applied to pay all selling costs, discharge the mortgage encumbering the property and the payment of the Capital Gains Tax liability of the Wife. The parties received approximately $800,000 from the proceeds of sale.
In November 2018 the parties purchased the B Street, Town C Property for $570,000 plus costs. The parties did not require a mortgage to fund this purchase. The parties also applied the proceeds of the P Street, Suburb Q Property to renovations and joint liabilities.
In 2000 prior to the relationship, the Husband established a business originally known as Company S. This was later renamed to Company H (“the Company H business”) in 2008. The Husband was the sole proprietor of the Company H business. The Company H business was operated out of the rental property that the Husband was residing in. The Husband’s evidence is that it allowed him to earn a salary of approximately $100,000 per annum. There was no evidence before the Court as to the value of the Company H business, be it retrospectively or as of the date of the hearing.
The Husband also received a lump sum payment of $130,000 from family law proceedings relating to his ex-wife. The timing of the payment was after the relationship commenced, however, it is the Husband’s evidence that the agreement between himself and his ex-wife was made prior to the Husband and Wife commencing their relationship. The Husband also gave evidence that he had around $40,000 in savings at the commencement of the relationship with the Wife.
The Wife accepted that the Husband contributed $130,000 at the commencement of the relationship. However, the Wife did not accept that the Husband had $40,000 in a savings account at the commencement of the relationship. The Husband did not produce any evidence of his savings accounts that would confirm the existence of his savings account with $40,000 nor did he produce any evidence of the expenditure of such funds. The contribution of the $130,000 was unchallenged.
During cross-examination, the Husband stated that he had $250,000, which is not consistent with any evidence contained within his own Affidavit of the amounts of money that the Husband asserts to have contributed at the commencement of the relationship.
The Husband provided a detailed narrative in his Affidavit as to his belief that he had been misled by the Wife during the relationship as to the existence of $250,000 held by the Wife in an offset account. The Husband also provided a detailed negative narrative in his affidavit about the relationship between the Wife and her children, and the reasons why the Wife moved into his rental home. The relevance of such evidence in property proceedings was not apparent to the Court.
The D Street, Suburb E Property
In early 2010 the parties purchased the D Street, Suburb E Property. The mortgage secured over this property is with Westpac. To enable the parties to secure finance, the Wife had to refinance and use the P Street, Suburb Q Property as collateral. The D Street, Suburb E Property was purchased by the parties as joint proprietors. At this time, the Wife remained employed in her position as a sales representative with Employer R and the Husband was working within the Company H business.
The D Street, Suburb E Property was purchased for $580,000 with associated costs for stamp duty and other expenses. The Wife gave evidence that the parties required a mortgage of $610,000 to finance the entirety of the purchase costs.
The Wife also gave evidence that she was solely responsible for the property management of the D Street, Suburb E Property.
The Husband’s evidence is not contrary to the Wife’s in that he says the parties purchased the D Street, Suburb E Property in 2010 for $580,000. In relation to the mortgages, it is his evidence that the mortgage for the D Street, Suburb E Property was in the Wife’s name because the Wife already had a pre-approved loan from the P Street, Suburb Q Property. The Husband’s evidence is that the parties paid 10 percent for the deposit and then borrowed the remaining amount. The Husband did not provide any evidence to support the payment of a deposit from joint savings.
The Husband refutes the claim made by the Wife that it was due to his poor credit rating that the mortgage for the D Street, Suburb E Property had to be in her sole name. It is the Husband’s evidence that he did not have a poor credit rating despite being made a bankrupt in 1995 and a discharged bankrupt in 1998.
The Company H business
In 2010 the Wife gave notice of her intention to resign from her employment as a sales representative for Employer R and subsequently from 2010 she was no longer in paid employment. The Wife’s evidence is that the parties had agreed she would work with the Husband in his existing business being the Company H business. Initially, the Wife worked part-time within the business, however, the tasks that the Wife undertook increased as her experience and knowledge developed. The Wife agreed that at the beginning she would refer to the Husband for assistance and advice when she received a call from a potential client. It was her evidence that it did not require much time for her to be sufficiently capable and involved; taking a large portion of the work as her own. There was no formal qualification required for the position the Wife assumed within the Company H business and it was on this basis that the Wife gave evidence she was equally involved once her experience was established.
The Wife substantiated this by providing evidence of her work within the Company H business by way of Initial Client Contact forms and email correspondence completed by her, demonstrating her involvement in the Company H business which were marked as Exhibit W1.
The Wife received no salary from the Company H business, however, payments for the Husband and Wife’s joint living expenses were paid from the business account in lieu of salary. There was no evidence provided to the Court to determine if superannuation was paid to the Wife.
It is the Husband’s evidence contained within his affidavit material that the Wife’s involvement in the Company H business was minimal. It is the Husband’s evidence that following the Wife ceasing her paid employment as a sales representative, the Wife provided minimal assistance to the Company H business. His evidence is that the Wife engaged in menial tasks such as answering phones, relaying messages and attending at the local post office to register lodgements. It was the Husband’s view that he fully maintained the Wife.
The Husband was challenged on his evidence regarding the extent of the Wife’s involvement in the Company H business and during cross-examination he conceded that the Wife had far greater involvement in the Company H business than what was stated in his affidavit material. He gave evidence that the Wife was a hard worker and that he had never denied that she was. He accepted that he and the Wife worked together for their mutual benefit and that included working in the Company H business. The Husband stated that he and the Wife worked in the Company H business as a team as best they could, given their differing knowledge of the industry. He gave evidence to the Court that they were a good team.
The Husband gave evidence that in early 2012 the Company H business was not operating with the same success as previous years under the guidance of the Wife. When challenged on his position, the Husband conceded and acknowledged that the Company H business was still successful, however, the financial debt structure that the parties had established was the key source of the stress for him, rather than the actual decline of the business.
Family Violence
In 2011 the parties relocated to the Region T in the state of Queensland and lived in rental accommodation within the Suburb U area. During this time, the Wife’s evidence is that the relationship began to break down due to disagreements as to finances and the associated pressure on the parties. It is the Wife’s evidence that the Husband would yell at her during disagreements and at times would wake her in the middle of the night to yell at her. The Wife also stated that the Husband would draw unreasonable and illogical inferences during their arguments.
The Wife gave evidence that in or around March/April 2012, her daughter was witness to these arguments and violent outbursts. I note that the Wife’s daughter is not on affidavit to support that she was witness to the same.
In or around July to September 2012, the Wife left the relationship and moved into her sister’s home due to her concerns for her own personal safety and mental wellbeing. It is the Wife’s evidence that the Husband had formed the view that she was trying to murder him, yet at the same time the Husband was threatening to commit suicide if she did not return to the relationship.
Following the move to the Region T in Queensland in 2011, and prior to the Husband’s suicide attempt, the Husband gave evidence that he was of the view that the Wife was deliberately trying to bankrupt him and sabotage the Company H business by removing files from the home. It was also the Husband’s evidence that at this time the Wife deliberately put sleeping tablets into his drinks, deliberately left sleeping tablets on the bench and then encouraged him to take the tablets to end his life. The Wife denies any of these events occurred.
During his viva voce evidence, the Husband then detailed further attempts on his life made by the Wife. His evidence is that on 4 or 5 March 2020, when the Wife attended the property to remove some of her possessions, she had attempted to sabotage the car in an attempt to “kill him”.
To support his claims, the Husband stated that following the time that the Wife was on the property on 4 or 5 March 2020, he attempted to drive his Motor Vehicle 3 and lost control of the front left wheel. It was his evidence that upon observing the wheel, he noticed spanner marks. He was of the view that the Wife had been responsible, either personally or via an agent, for deliberately tampering with the Motor Vehicle 3.
The Husband also gave evidence that when he tried to start the vehicle it would not start. He was of the view that the Wife was responsible for this instance of sabotage.
The Husband gave evidence that the next attempt by the Wife to kill him, was when she poisoned either the food that was contained in the freezer at the B Street, Town C Property, or the water in the water tanks. He was uncertain which one caused him to become unwell, however, he was convinced that either the Wife or her agent were responsible for these attempts on his life.
It is the Husband’s evidence, that despite numerous attempts on his life by the Wife or her agent, he attempted to reconcile with the Wife and continued to engage in business discussions with her. When Counsel for the Wife challenged the Husband as to why he would reconcile with a woman who was allegedly attempting to kill him, it was the Husband’s evidence that financially, he needed the Wife and that he was calculated in getting her back.
When responding to the allegations of family violence made by the Wife, the Husband in his affidavit material refutes all of the allegations made against him.
Of interest, the Husband makes allegations that the Wife has breached the confidentiality requirements of this Court by publishing offensive and false material about the Husband through the Wife’s friend on a GoFundMe Fundraising page. The Husband also criticises the Wife for her application for an Intervention Order against the Husband, despite the Husband also making the same application to the State Magistrates’ Court. Further to this, the Husband complains that the Wife or her agent had sent a letter to the Husband threatening him with the ownership of the Company H business. This criticism is then responded to by the Husband sending a counter threat to the Wife that he will place a caveat over the joint properties. It was somewhat curious that the criticism was made in circumstances where the Husband undertook the exact course of conduct about which he complains.
The Husband makes further allegations that the Wife was a user of Marijuana and was a heavy drinker. The Husband referred to the conduct of the Wife when dealing with her daughter as “disgraceful”. I question the relevance of such allegations in these property proceedings and consider such inflammatory and unsubstantiated comments to be of no assistance to the Court in a property case such as this.
Financial and non-financial contribution throughout the relationship
From 2009 the parties lived in rental accommodation. The Wife gave evidence that whilst working in the Company H business, she was also responsible for cooking meals and performing a large proportion of the domestic duties. She acknowledged that the Husband contributed to the domestic duties during the relationship.
In 2012, the Wife started her own business called Company V and it is her evidence that whilst she was primarily responsible for the running of that business, the parties would at times work on the files together. There was no evidence before the Court regarding the financial position of that business.
In or around 2012, the Wife continued to work within the Company H business whilst the Husband gained alternate paid employment with Employer W for a period of approximately four months. In or about 2012 the Husband attempted suicide and was hospitalised for three days.
The Wife gave evidence that she worked on the files of the Company H business throughout the separation and whilst residing at her sister’s home. Her evidence was that she took files from the Husband’s home to ensure that the Company H business continued in accordance with an agreement that the parties had made for the same. During the period of time the Husband was working at Employer W and during the time that the Husband was hospitalised following a suicide attempt, the Wife was the predominant contributor to the Company H business.
The Wife also gave evidence that during a period of approximately seven months in or about June 2016, the Husband was assisting his cousin Mr N (“Mr N”) who was in hospital with a spinal injury and would be with him for 12 hours a day. Whilst the Husband was employed with Mr W in 2012 and also during the time the Husband was assisting his cousin in 2016, the Wife gave evidence that she was solely responsible for the work undertaken by the Company H business.
In or about January 2014, the Wife accessed her superannuation entitlements in the amount of $81,500. This money was applied to the payment of the Husband’s debt secured over his Motor Vehicle 3, the discharge of joint credit card debt and the payment of the deposit on the purchase of a property at X Street, Suburb Y (“The X Street, Suburb Y Property”). Money was also applied to the D Street, Suburb E Property offset account.
Despite the alleged attempts on his life, the Husband and the Wife reconciled in 2012 and continued to operate the Company H business. The Husband had ceased work with Mr W. Whilst the Husband accepted that the parties were not paid a direct wage, it is his evidence that the business was the source of income which paid for the outgoings of the D Street, Suburb E Property, P Street, Suburb Q Property and then the X Street, Suburb Y Property later in 2014.
The Husband gave evidence that the parties were a great team who were working for their mutual benefit. The Husband agreed that he had spent approximately seven months caring for Mr N and during this time, the Wife predominately operated the Company H business. The Husband was available for consultation throughout this time. It was also accepted that the Wife spent a short period of time with her daughter after the birth of her grandchild and the Husband operated the Company H business in her absence.
Whilst the Husband minimised the value of the Wife’s contribution to the Company H business and to the relationship, during cross-examination the Husband conceded that both the parties contributed to the domestic chores, duties and the Company H business during the relationship.
In relation to the P Street, Suburb Q Property, the Husband’s evidence is that where there was a shortfall between rental payments and outgoings, he financially contributed to address the shortfall. The Husband did not produce any evidence in support of any alleged payments made by him. The Husband also gave evidence that he was involved in the physical work of improving the P Street, Suburb Q Property. There was no specificity or detail of what such work entailed and how, if at all, those works improved the value of the P Street, Suburb Q Property.
The Court is satisfied that throughout the relationship both parties contributed financially to the full extent of their capacity to do so.
Future needs
The Wife filed an affidavit from her treating psychologist Ms L (“Ms L”) annexing a report prepared by her in relation to the Wife’s ongoing anxiety and depression. The Wife has been attending upon Ms L since early 2020 on a monthly basis. To date, the Wife has attended a total of 13 sessions. Ms L does not make any comment in relation to the Wife’s ability to gain paid employment. The report of Ms L does, however, detail a history of anxiety and depression, coupled with ongoing unemployment as contributing to a further and significant deterioration of her mental health. It is the Wife’s evidence that this condition has impacted her greatly and the likelihood of future employment is limited. Ms L was not required for cross-examination and therefore I accept her evidence as detailed in her report.
The Husband was questioned as to his intentions and plans for future employment. In his evidence, the Husband indicated that he was reliant upon other people, particularly Ms M (“Ms M”) whom will be discussed later in these reasons for judgment. The Husband’s evidence was that he would rely on his friends for the provision of food and money, however, if he could get an operating car he would have no issues in obtaining employment. He stated that the only reason he cannot work is because the Wife took both functioning cars and he lives remotely at the B Street, Town C Property.
The Husband then gave evidence to the Court of his intentions and plans for his financial future. For ease of reference, I shall list the evidence provided to the Court:
(a)He intends funding the purchase of the B Street, Town C Property with the money that he is going to receive from Ms M and Mr N as will be detailed later in these reasons for judgment;
(b)At the B Street, Town C Property he intends to build a not for profit scientific research centre that he would fund with the assistance of corporate grants. He has previously been offered a grant to fund such a project with Company BB, however, he declined the grant;
(c)He will establish a panel of scientists that would approve eight scientists who would remain anonymous to the general public, as is necessitated by the corruption of pharmaceutical companies who would use the information to the detriment of their professional careers;
(d)He was going to obtain funding through his work with spirituality, qualitative practice and science;
(e)The scientific research centre would not be for personal enrichment;
(f)He has discovered a way to heal injuries;
(g)To raise the profile of his ability to heal spinal injuries, he was intending to represent Australia at an international sports event as part of their team;
(h)He has already spoken with the international sporting team and this would be approved upon him qualifying;
(i)He was intending to go to Country CC to train for this event and ultimately compete in order to qualify. To fund such an endeavour he indicated that he had friends and family at sports resorts and therefore he would receive free lessons;
(j)In the lead up to the international sports event, he intended to work with five different people who were currently confined to a wheelchair due to their paraplegia;
(k)Upon the completion of the international sports event, as he participated in his sports, he would have it organised that the five people confined to a wheelchair that he had “cured” would all rise as one from their wheelchairs. This would create a media frenzy and would provide the high profile coverage that he needed to raise awareness of his work and the scientific research centre, subsequently creating interest for grants amongst the corporate world; and
(l)It was also his intention that the “journey” that he embarked on would form the basis of a documentary and the publicity generated by the event would fund such an endeavour.
The Husband also gave evidence in relation to his skills and abilities that would create a future for himself and the scientific research centre. For ease of reference, I will again list the evidence provided to the Court:
(a)Three months prior to the final hearing he made contact with a female person of high public standing from Country CC on Facebook. The partner of this lady had previously been in a car accident and the lady was seeking that the Facebook community pray for her partner;
(b)Upon contacting the lady in Country CC, the Husband advised the lady that he had a way with spinal injuries and that he may be able to help her partner;
(c)Via spirituality and meditation, the Husband was able to access the energy of the injured partner and take the partner’s brain to the injury, allowing the Husband to treat the affected area;
(d)The Husband sent an email to the lady and advised her that he had read into her partner’s brain and recognised the three areas in the spine that were injured. The Husband could feel the adjustment in his own body that was required in the partner’s body;
(e)The Husband gave evidence that he was able to “enter” the other person from a distance using the skills that he had researched;
(f)After he had spiritually “entered” the partner, he was advised that the spine was remarkably improved; and
(g)Some months later when the partner had relapsed and returned to hospital, the Husband once again was able to assist remotely.
The Husband has also established a business known as Company DD. Whilst it is his evidence that there has been no recent activity in Company DD, the Husband agreed that this was a business established post separation to offer spinal injury and scientific treatments. The Husband was presented with several website listings from his website for Company DD that quoted a fee for treatment. The Husband indicated that these were old websites established with the Wife post separation to generate interest and that there were no charges for these services.
The Court finds that the Husband has a clear capacity and intention to engage in paid employment. The Husband has been previously successful in the Company H business that he established and the Court is satisfied that whilst his current circumstances require him to be reliant upon others, he has the ability to provide for himself in the future. The Husband’s evidence supports the same as he indicated that he had the capacity to pay a lump sum of $200,000 in 12 months’ time to Mr N.
The Wife gave evidence that her mental health impedes her ability to gain paid employment. Whilst the Court was not provided with any conclusive evidence to support such a finality to employment, the Court is satisfied that her likelihood of gaining employment at the level that she enjoyed previously is minimal. The Court finds that the Wife’s future needs are greater than those of the Husband.
The Husband’s capacity to purchase the B Street, Town C Property
The Husband maintained throughout the final hearing that he wished to retain the B Street, Town C Property. The Husband was challenged regarding this due to his lack of financial means to achieve the same and subsequently, during the final hearing, the Husband filed two affidavits. In an attempt to demonstrate borrowing capacity, one affidavit was of Mr N and the other was of Ms M, however, both deposed to a willingness to lend to the Husband.
Ms M
Ms M filed an affidavit on the second day of the final hearing. Her affidavit was very short and contained the following evidence:
(a)She is a friend of the Husband’s;
(b)She has agreed to invest $200,000 to acquire an equity in the B Street, Town C Property; and
(c)She has the funds available for prompt payment.
Counsel for the Wife did not object to the late filing of this affidavit and therefore I granted leave for the affidavit to be admitted into evidence.
Ms M did not wish for her residential address to be provided in open Court. When questioned as to the reason why, Ms M gave evidence that the person that is Mr EE’s ex-partner is a very manipulative person and from what she has experienced the Wife is not someone that you treat lightly. She stated that the Wife has got bad intentions.
Ms M gave evidence that the basis for her concerns centred upon her witnessing the Husband’s car not working and that she had seen the marks underneath the steering column. Ms M conceded that she had no proof that the Wife was responsible for such actions, however, she gave evidence that she considered it coincidental that when she first stayed in the spare room at the B Street, Town C Property she got sick, describing it as “strangely sick”. Ms M indicated that this occurrence was bizarre to her and that makes her feel something was done to the water. Ms M gave evidence that her source of information regarding the Wife was solely the information given to her by the Husband.
When discussing the nature of the relationship that Ms M and the Husband share, the evidence was that initially they had met on an online dating website in early to the middle January 2020. The relationship was initially sexually intimate on two or three occasions, however, both parties accepted that they were going to only be friends and business associates going forward. Ms M gave evidence that she and the Husband had the same outlook with spirituality and with quantum physics.
Throughout cross-examination, Ms M expanded on her position in relation to the provision of $200,000 in exchange for equity in the B Street, Town C Property.
Ms M gave evidence that she had offered to invest $200,000 within approximately two weeks of meeting the Husband. This evidence was very difficult to illicit from Ms M during cross-examination and it often required intervention to reframe the questions being put to her, in several different ways.
Ms M was unable to provide to the Court a clear explanation as to the terms and conditions of the investment of $200,000. Ms M gave evidence that in return for the $200,000 investment, she was to receive equity in the B Street, Town C Property and possibly in the healing centre that the Husband had advised her that he was intending to build. It was her evidence that she was investing in far more than the B Street, Town C Property as she had faith in the Husband’s ambitions in building a scientific healing and research centre on the B Street, Town C Property. Ms M was unable to provide a satisfactory explanation as to her understanding of the term equity in the property. She gave evidence that the lawyers would deal with all of that.
Ms M gave evidence that she had not spoken to a lawyer in relation to this transaction. She indicated that any percentage stake in the B Street, Town C Property, would be determined by the value of the B Street, Town C Property once these proceedings were over. Ms M was unable to give any evidence as to the terms of any agreement or deed, as she would have to wait for a lawyer to advise her of the same.
It was clear from the evidence of Ms M that she was considering the $200,000 investment to the Husband in the absence of legal advice, however, she intended to get legal advice prior to the provision of the money. I find that the availability of the money from Ms M was not an immediately available source of money for the Husband. It was clear from Ms M’s evidence that she was intending to obtain legal advice prior to the payment and in the absence of this occurring, it cannot be concluded that Ms M’s funds are readily available to the Husband.
It was clear to the Court that Ms M was very much aligned and partisan with the Husband. The Court was often required to intervene to assist Ms M in comprehending any question that did not align with the message that she and the Husband had intended to convey to the Court. Whilst I find that at all times Ms M was a truthful witness, it was clear to the Court that her evidence mirrored that of the Husband and that she was so heavily influenced by the promises made by the Husband, that one could not be satisfied that her evidence was independent and reliable.
Mr N
Mr N filed an affidavit on the second day of the final hearing. His affidavit was very short and contained the following evidence:
(a)He is willing to loan the Husband up to $200,000 for a period of 12 months to assist the Husband in retaining the B Street, Town C Property; and
(b)He will require 90 days to provide those funds.
Counsel for the Wife did not object to the late filing of this affidavit and therefore I granted leave for the affidavit to be admitted into evidence.
Mr N was not required for cross-examination.
The Husband gave evidence that Mr N is his cousin and is the same gentleman that the Husband spent seven months with whilst he was hospitalised. Mr N is currently in remission from stage four Cancer following three other successful treatments of various Cancers.
The evidence of Mr N does not provide any specificity as to the exact amount that he is prepared to loan the Husband. It is also clear that the funds would not be made available for at least 90 days.
When asked how the Husband intended to finance the repayments to Mr N, he gave evidence that he would gain employment and that would allow him to pay back the money subject to any loan. He described the repayment agreement as being 12 months’ honeymoon and then the repayment could be paid in one hit.
The Court is not satisfied that the Husband has the ability to refinance the mortgage associated with the B Street, Town C Property or to have the available money to make a just and equitable payment to the Wife. The Court is however of the view that the Husband should be given the opportunity to retain the B Street, Town C Property as he has been unwavering in his evidence that he would be able to achieve this. The Court will not, however, allow this at the expense of the Wife whom would be prejudiced in circumstances where the Husband is allowed an excessive amount of time to obtain the appropriate funds and for this reason, the Husband is being allowed 28 days.
Superannuation
Counsel for the Wife made submissions that the Husband’s superannuation should be included in the asset pool available for division. There were no contrary submissions made by Counsel for the Husband.
The uncontested evidence of both parties was that during the relationship the Wife had withdrawn all of her superannuation for the benefit of the parties. Neither party was seeking a superannuation splitting order nor was there any evidence of procedural fairness afforded to the Husband’s superannuation fund. The Husband retained all of his superannuation throughout the relationship. I find that in circumstances where the superannuation of the Husband remains and the parties jointly had the benefit of the entirety of the Wife’s superannuation, all of the Husband’s superannuation should be considered an asset of the relationship and be included in the asset pool available for division.
To achieve this result, there will be a deduction from the proceeds of sale of the D Street, Suburb E Property, payable to the Wife, to give effect to a 65% split of the Husband’s current superannuation balance to the Wife.
DISCUSSION
On the Wife’s case, the factors to be considered in this matter are:
(a)The Wife’s contribution of the $340,000 that incorporates the P Street, Suburb Q Property with equity of approximately $282,000;
(b)The Wife’s initial contribution of her savings of $46,000;
(c)The economic advantage created by using the P Street, Suburb Q Property as collateral for other property purchases; and
(d)The Wife’s future needs in circumstances where she deposes that she is unable to obtain paid employment.
On the Husband’s case, the factors to be considered in this matter are:
(a)The Husband’s initial contribution of $130,000 and $40,000;
(b)The Husband’s contribution of the Company H business and the reliance on this business by the parties for income throughout the relationship; and
(c)His far greater contribution in working in the Company H business.
When Counsel for the Wife asked the Husband some preliminary questions with regard to the relationship, the Husband was unable to provide a coherent or satisfactory answer. When directed to his own affidavit and asked to confirm that the dates contained within the material were correct, the Husband was unable to do so. The Husband’s evidence was that he had an obsessive compulsive brain and due to this he found it difficult to answer questions.
There was no medical evidence before the Court that the Husband suffered from any medical condition that would affect his ability to answer questions on cross-examination. It became apparent to the Court throughout the Husband’s evidence that he was able to answer questions that did not challenge his thoughts but he faltered when the questions were not in line with the dialogue that he was seeking to present to the Court.
When giving his evidence to the Court, the Husband would not answer a question directly, instead he was evasive and attempted to engage Counsel for the Wife in a combative dialogue rather than answer any questions asked of him. The Court was required to intervene on several occasions to direct the Husband’s attention to the question that was asked.
Whilst I cannot comment or make findings as to the likelihood of the Husband achieving his goal of joining an international sports team or finding the cure for spinal injuries, I do find that the Husband had grandiose ideas and appeared to be very influential in convincing others to join with him, including financially, in these endeavours.
Of concern to the Court was the Husband’s inability or deliberate attempts to avoid any questions that did not fit within the narrative that he sought to present to the Court. On all occasions when asked to produce evidence to support all and any claims, the Husband was unable to do so. The Husband went so far as to deflect his inaction in providing information and evidence to the Wife when requested, onto his own legal representative.
The Husband gave evidence that he was very “calculated to get back with her”, being the Wife, following a period of separation to ensure his financial security. His evidence was very telling when he suggested that despite the parties ultimately reconciling, he would not have been overly distressed if they had not. The Husband impressed upon the Court as a man of intellectual means who was calculated in his actions to achieve his own financial security.
In contrast, when questioned as to the basis of her claims of contributions, both financial and non- financial, the Wife was able to support her evidence with corroborating documentation. I found the Wife was honest, direct, non-combative and truthful regarding her provision of evidence.
At the commencement of the final hearing and at several times during, the Court indicated to all the parties that in the event there was no agreement or the Court was unable to ascertain the value of an asset, then such asset would be sold. This was inclusive of the properties and the motor vehicles. The parties both acknowledged this direction from the Court.
The orders make provision for the Husband to receive his share of the Wife’s Motor Vehicle 1 at a value that he places on this motor vehicle. The remaining vehicles are to be sold by a registered car dealer with all transactions to be transparent and independent from the parties. If either party seeks to retain any of the motor vehicles, they would have the option to purchase the vehicle at the market value.
When determining the contributions of each of the parties and the impact that has on the determination of a just and equitable division, each contribution must be assessed and balanced against all of the other contributions, financial and non-financial, to the relationship. Counsel for the Wife submitted that the Wife should receive an uplift due to the economic advantage the contribution of the P Street, Suburb Q Property and its use as security to increase their property portfolio. Counsel for the Husband submitted that, but for, the existence of the Husband’s Company H business, the parties would not have been in a financial position to build their property portfolio. Each submission has merit, however, each contribution must be weighed against all others.
The Court does find that upon the Wife ceasing her paid employment the parties were reliant upon the Company H business for their income. This was a business that the Husband owned prior to the relationship, however, it was also a business to which the parties jointly contributed throughout the relationship. The Court is of the view that it was both the security of the P Street, Suburb Q Property and the income generated by the Company H business that allowed the parties to acquire the properties that formed part of their existing property pool. These contributions are to be balanced and are considered of equal value.
The parties agreed that there will be a Capital Gains Tax liability (“CGT”) associated with the sale of the D Street, Suburb E Property. Whilst there was no accounting evidence as to the quantum, Counsel for the Wife submitted that it was anticipated to be within the range of $40,000 - $50,000. Counsel for the Husband did not object to such a submission. As such, these orders provide for an amount of $50,000 to be set aside to cover the CGT and then once paid, any additional funds are to be distributed in accordance with the division of assets provided for in these orders.
The Wife’s initial contribution to the asset pool is approximately 35% based upon the valuations of the real properties as provided by the Wife and equal contributions throughout the relationship. The Husband’s initial contribution to the asset pool is approximately 12%, based upon the values of the real properties as provided by the Wife and equal contributions throughout the relationship.
The Court is satisfied that the future needs of the Wife are greater, particularly in circumstances where the Husband was very clear in his evidence, that he would be able to obtain work once he gets a working vehicle. These orders allow for the Husband to receive funds from the sale of the D Street, Suburb E Property, the B Street, Town C Property (if sold) and the motor vehicles to assist him in purchasing such a car. I find that the Wife should receive a loading in her favour on the basis of future needs as discussed in these reasons for judgment.
On balance, the percentage to be received by the Wife using a global approach is 65% and the percentage to be received by the Husband using a global approach is 35%. The Court is satisfied that the global approach to all of the assets, inclusive of superannuation, has produced a just and equitable result.
I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Howe. Associate:
Dated: 23 July 2021
Key Legal Topics
Areas of Law
-
Family Law
-
Property Law
-
Civil Procedure
Legal Concepts
-
Injunction
-
Remedies
-
Costs
-
Jurisdiction
-
Statutory Construction
-
Appeal
0