Olesk & Olesk
[2025] FedCFamC2F 574
•7 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Olesk & Olesk [2025] FedCFamC2F 574
File number(s): PAC 5222 of 2023 Judgment of: JUDGE NEWBRUN Date of judgment: 7 May 2025 Catchwords: FAMILY LAW – PROPERTY – Just and equitable orders made. Legislation: Family Law Act 1975 (Cth) Cases cited: Boulton & Boulton [2024] FedCFamC1A 132
Scott & Munayallan(No 12) [2023] FedCFamC1F 665
Weir & Weir (1993) FLC 92-338
Division: Division 2 Family Law Number of paragraphs: 92 Date of hearing: 8-9 April 2025 Place: Parramatta Counsel for the Applicant: Mr Schonell Solicitor for the Applicant: Croker Edwards Counsel for the Respondent: Mr Brook Solicitor for the Respondent: Sarah Bevan Family Lawyers ORDERS
PAC 5222 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS OLESK
Applicant
AND: MR OLESK
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
7 MAY 2025
THE COURT NOTES THAT:
Recitals
A.In these Orders, the following definitions apply:
(i)The B Street property means the property situated at and known as B Street, Suburb C in the State of New South Wales, being the whole of the land comprised in Certificate of Title Folio Identifier …;
(ii)The D Street property means the property situated at and known as D Street, Suburb C in the State of New South Wales, being the whole of the land comprised in Certificate of Title Folio Identifiers … & …;
(iii)The E Street property means the property situated at and known as E Street, Suburb C in the State of New South Wales, being the whole of the land comprised in Certificate of Title Folio Identifier …; and
(iv)The Suburb G property means the property situated at and known as F Street, Suburb G in the State of New South Wales, being the whole of the land comprised in Certificate of Title Folio Identifier ….
AND ON A FINAL BASIS THE COURT ORDERS THAT:
1.On or before the date that is 7 days following the date of these Orders, the Husband deliver to the Wife the original Certificate of Title to the B Street property, if such document exists;
2.On or before the date that is 21 days following the date of these Orders, the Husband do all acts and things and sign all documents necessary to transfer to the Wife all of his right, title and interest in the B Street property, with the Wife to be responsible for payment of the Land Registry Services fee for registering the Transfer and with the parties to each be responsible for their respective PEXA and legal/conveyancing fees in respect of the transfer;
3.On or before the date that is 28 days following the date of these Orders, the Husband pay to the Wife the sum of $1,307,211.
4.In the event that the Husband fails to comply with Order 3, then the parties shall forthwith do all acts and things as are necessary to effect the sale of the E Street property.
5.For the purposes of Order 4:
(a)The Husband shall engage a solicitor or conveyancer ("the sale legal representative") to act in respect of the sale within 14 days of the date of the Husband's default under Order 3;
(b)The Husband shall appoint a real estate agent to act in respect of the sale ("the agent") within 21 days of the date of the Husband's default under Order 3;
(c)The Husband shall provide the sale legal representative with a copy of these Orders at the time of engagement of the sale legal representative;
(d)At the time that he engages the sale legal representative, the Husband shall do all acts and things necessary to enable and authorise the Wife to liaise directly with the sale legal representative and receive from him/her/it all information regarding the sale of the E Street property;
6.Upon settlement of the sale of the E Street property, the proceeds of the said sale shall be disbursed in the following manner and priority:
(a)In payment of the costs of sale, including but not limited to the costs of the sale legal representative and the agent;
(b)In payment of any adjustments necessary on settlement;
(c)In discharge of the ANZ mortgage loan;
(d)The balance divided between the husband and the wife so that, taking into account:
(i)net $995,345 in assets retained by the husband;
(ii)$93,531 in addbacks attributable to the husband;
(iii)$2,052,929 in assets retained by the wife, and;
(iv)$10,494 in addbacks attributable to the wife;
there be a distribution of the net total assets of 42.5 per cent to the husband and 57.5 per cent to the wife.
7.Save as otherwise provided for in these Orders, the Wife retain the following assets free from any claim by the Husband:
(a)Her superannuation entitlements;
(b)Her motor vehicle;
(c)Her bank accounts; and
(d)The contents of the B Street property.
8.Save as otherwise provided for in these Orders, the Husband retain the following assets free from any claim by the Wife:
(a)The Suburb G property;
(b)Subject to Order 4, the E Street property;
(c)Any motor vehicle owned by him;
(d)His bank accounts;
(e)His superannuation entitlements, and;
(f)The contents of the E Street property.
9.Except as otherwise provided for in these Orders, the Wife be responsible for, and indemnify the Husband in respect of, any liabilities accrued in the Wife's name, or for which the Wife is responsible or which attach to any asset being retained by the Wife pursuant to these Orders.
10.Except as otherwise provided for in these Orders, the Husband be responsible for, and indemnify the Wife in respect of, any liabilities accrued in the Husband's name, or for which the Husband is responsible or which attach to any asset being retained by the Husband pursuant to these Orders.
11.If any party fails, neglects or refuses to sign within 14 days of a request to do so any document giving effect to these Orders (such failure, refusal or neglect being hereinafter referred to as "the default" and the party so failing, refusing or neglecting as "the defaulting party"), a Registrar of the Parramatta Registry of the Federal Circuit and Family Court of Australia is empowered pursuant to section 106A of the Family Law Act 1975 (Cth) to execute any such document in the name of the defaulting party and the Affidavit of a party or a party's solicitor shall be sufficient evidence of the defaulting party's non-compliance.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
These are Reasons for Judgment relating to a final property hearing held before the Court on 8 and 9 April 2025.
The applicant wife and respondent husband both appeared, legally represented.
The wife commenced proceedings on 5 October 2023.
PROPOSALS
The wife seeks orders as set out in her Minute of Orders, Exhibit E.
The husband seeks orders as set out in his Minute of Orders, Exhibit F.
MATERIAL RELIED UPON
The wife relied upon:
(a)(Amended) Initiating Application filed 25 February 2025;
(b)Her affidavit filed 10 March 2025;
(c)Financial Statement filed 10 March 2025;
(d)Affidavit of Ms J filed 10 March 2025;
(e)Affidavit of Mr H filed 10 March 2025.
The husband relied upon:
(a)His affidavit filed 18 March 2025;
(b)His Case Outline filed 4 April 2025;
(c)Response to Initiating Application filed 10 November 2023;
(d)Financial Questionnaire filed 10 November 2023;
(e)Financial Statement filed 10 November 2023;
(f)Certificate of readiness filed 10 October 2024;
(g)(Amended) Response to Final Orders filed 31 January 2025.
The following documents became exhibits:
(a)Exhibit A: Annexures to the wife’s affidavit;
(b)Exhibit B: Certificate of Dispute Resolution;
(c)Exhibit C: Letter to the husband’s solicitors dated 24 March 2025.
(d)Exhibit D: Joint balance sheet;
(e)Exhibit E: Applicant wife’s minute of order;
(f)Exhibit F: Respondent husband’s minute of order.
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”, “Contributions”, and “Section 75(2)”. 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”, “Contributions” and “Section 75(2)” shall take precedence.
The wife was a satisfactory witness. She gave her evidence honestly and she sought to give responsive answers to questions asked of her.
The husband was a combative and evasive witness and often posed questions to the cross-examiner. He often failed to give responsive answers to straightforward questions asked of him. He had to be reminded by the Court on numerous occasions to answer cross-examination questions directly and responsively. He was determined to give evidence favourable to his case. He stated that certain requested disclosure by the wife’s solicitors from himself was either irrelevant and/or that he had verbally provided such requested information directly to the wife. He acknowledged that he had not made full disclosure in the proceedings (and had not made complete enquiries after disclosure was requested) but asserted that significant requests by the wife’s solicitors for disclosure were not relevant to the proceedings (and see the Court’s discussion below in relation to the husband’s failure to make adequate disclosure in the proceedings). Where the husband’s evidence materially differs from the wife’s evidence the Court prefers the evidence of the wife unless otherwise stated by the Court.
Separation date issue
The wife asserts that the parties separated in about March 2007. The husband alleges that the parties separated in July 1998. He places significant reliance upon a signed letter of the wife to the ANZ bank on 14 December 2020 in which refers to the parties having been separated for over 20 years (“the letter”). The signature of the wife is witnessed by a person but no evidence was adduced from this person.
The husband had stated in his affidavit that in December 2020 he had asked the wife to indicate her position to the ANZ bank as he was trying to arrange finance at that time.
In oral evidence, the wife stated that her signature appeared on the letter. She stated that she could not recall having signed the letter. She stated that she did not understand the document. She disagreed that at the time of the letter (December 2020) she had been separated for over 20 years.
In relation to this issue of separation date, the wife relied upon the individual affidavits of the parties’ adult children. The children were not cross-examined.
The eldest child, Ms J, aged almost 45 years, and born in 1980, stated, inter alia, that she lived with both the wife and husband (aside from trips abroad) throughout her childhood and until a date in about the first half of 2005. She stated that after her family lived in an apartment in Suburb G after she was born, her family lived at B Street, Suburb C (“the B Street property”). She stated that in about the late 1990s the wife, the husband herself and her brother moved together to E Street, Suburb C (“the E Street property”).
Ms J stated that at the E Street property, the wife and husband shared a bedroom. She remembers the wife routinely doing the husband’s laundry when they were living at the E Street property, just as the wife had done when the family lived in the B Street property.
Ms J states that in 2002 she spent a year studying in Country K. She states the wife and husband came to visit her during this time, as did her prospective husband Mr L. She stated they all travelled together for about two weeks. They spent some time in Europe and also went to Country M. She stated in Europe they stayed in hotels and the wife and husband shared a hotel room. She states that in Country M they all stayed with the husband’s relatives. She states that in City N in Country M they stayed in a hotel and again the wife and husband shared a hotel room. She states that at the end of their time together the wife and husband left to return to Sydney together. She annexes to her affidavit a copy of a photograph of the wife and husband in the hotel room which she says they shared in City N, and a second photograph of the family in Country M.
Ms J states that during the time that she lived in Country K, she was not under the impression that her parents had separated. She stated that when she spoke with the wife, the husband was often in the background on her end of the phone.
Ms J states that when she returned to Sydney after her year in Country K she moved back to the E Street property and remain living there for more than two years. She stated that when she returned from Country K, the wife and husband were sharing a bedroom at home, and they continued to share a bedroom the whole time that she lived at the E Street property.
Ms J states that she moved in together with Mr L on a date in about the first half of 2005. She annexes a letter from the ATO dated 21 February 2005 which is addressed to herself at the E Street property. She states that she did not notice significant changes in her parents’ relationship with each other during the time that she lived at home. She states that the whole time that she lived at home, the wife cooked, cleaned and shopped for the husband, and they shared a bedroom. She states that before the time that she commenced living with Mr L, she did not believe or have cause to believe that her parents had separated. She states that it was at some point after moving out of home that she became aware that her parents had separated and that she does not recall when that was.
The youngest child, Mr H, aged 42 years, and born in 1982, stated, inter alia, that in 1999, the wife, the husband Ms J and himself were living together at the B Street property. He stated that in late 1999 they moved into the E Street property. He stated that at the E Street property the wife and husband shared a bedroom. He stated that he did not notice a change in the way his parents interacted with each other between when the family lived at the B Street property and when they lived at the E Street property. He stated that in both houses the wife, inter alia, looked after the inside of the house including the cooking for the family, household cleaning, and the laundry for the family. He stated that in about mid 2004 he moved out of the E Street property and he was not of the view at this time that the parties had separated.
Mr H stated that the parties attended his university graduation ceremony together in June 2006. He stated that on a date after he moved out of home the wife moved back to the B Street property. He stated that this was the time when he became aware that the parties had separated. He stated that before this time he was not of the view that the parties had separated.
The wife states that in 1999 herself, the husband, and Mr H were living at the B Street property. She states that in about late 1999 they moved as a family into the E Street property. She states that she and the husband set up the master bedroom, which was upstairs, as their bedroom. She states they both stored their clothes in this bedroom and they shared a bed in this bedroom. She states that Mr H’s bedroom was one of the two smaller rooms upstairs. She states that the husband converted the larger of two kitchens at the property into a bedroom downstairs for Ms J. The wife states that they continued in their daily routines, whereby the wife washed the husband’s clothes, cooked for him, and cleaned the house. The wife refers to visiting Ms J in Country K with the husband. She refers to herself and the husband holidaying together in 2002 for about two months. In this context she refers to herself and husband travelling to City O, and around Country K and Country P together. She refers to herself and the husband, Ms J, and her boyfriend flying together to Country M where they visited where the husband had grown up.
The wife refers to Ms J returning to Sydney in about late 2002 when she recommenced living at the E Street property with the family. The wife refers to Mr H moving out of the E Street property in about 2004. She refers to Ms J moving out of that home in about late 2004 or 2005. The wife refers to attending with the husband Mr H’s graduation ceremony in late 2005 at university; she and the husband had travelled there together and sat together. The wife recalls that she and husband had not separated at this time and were sleeping in the same bedroom at this time.
The wife states that in about 2006 the husband decided to lease out a portion of the E Street property. The wife states that the part in which the family remained was just one bedroom, kitchen, lounge room, bathroom, and the room where the husband slept. She states that in 2006 she and husband were not getting along well, and the parties stopped sharing a bedroom. The wife states that she recalls that when this happened it was after the children had moved out, and after the husband had converted the E Street property into two separate dwellings. The wife states that by late 2006 she did not want to live with the husband anymore, with the parties barely speaking to each other. She stated that in about early 2007 she said to the husband that she wanted to move back to the B Street property on her own and for the parties to live apart, and the wife moved back into that property in March 2007.
The husband, in paragraph 5 of his affidavit, asserts that his memory is reasonable but not perfect at his age. He states that on occasion he has gotten specific years mixed up. He states that one example is the year of separation “which I previously asserted was July 1999. On reflection, when having to think carefully about the sequence of events, I have recalled that it was actually July 1998.”
The husband asserts that the parties moved to the B Street property in 1983 and they remained living there together until they separated and the husband subsequently moved out. He asserted that the wife has remained living in the B Street property since separation, except for a period from 2001 to about 2004 in which she lived at the E Street property.
The husband asserts that he moved into his office space at D Street, Suburb C (“the D Street property”) between about late 1998 and July 1999, and he then moved to the E Street property. He asserts that between about 2001 and 2005, he lived between the B Street property, where he was undertaking renovations, and the granny flat of the E Street property. He asserts that since about 2005 he has lived at the E Street property.
The husband asserts that in 2001 until 2004 he undertook renovations to the B Street property. He asserts that he rented out the front part of this property, which after his renovations had two bedrooms and all utilities, from about 2003 to 2005.
The husband asserts that he lived in the E Street property from July 1999 until 2001 when the wife and children moved in while he undertook renovations to the B Street property. He states that the wife lived there until about 2006. He states that he stayed in the granny flat part of this property for some periods during the time that the wife lived at the property. He states that since the wife moved back to the B Street property he has remained living at the E Street property.
The husband asserts that his alleged disagreements with the wife in relation to the children increased and in mid-1998 he decided that he needed to live separately from the family for a while, “although at that point I did not consider the relationship finally over. In July 1998 I started staying at the office space of the D Street property. I still returned to the B Street property, where the family was living, most days.”
The husband asserts that the parties’ discussions in relation to the issue of the children’s freedom continued, and he remained hopeful that they would be able to sort it out. He states that in mid-1999 he bought the E Street property in an attempt for a fresh start with the family. He asserts that it became clear that this would not occur and in July 1999 he moved to the E Street property. He asserts that at that point he considered the marriage over and it was his understanding from his discussions with the wife that she considered the same. He could not recall the specifics of those conversations.
On the balance of probabilities, the Court finds that the parties separated in about early 2007. Relevantly, as to this finding, inter alia, the wife’s evidence relating to this issue of separation (which the Court accepts) is supported by the evidence of the two children. The Court accepts the evidence of the two children. The parties had travelled together to Europe to visit Ms J and they acted as husband and wife, including sharing hotel bedrooms.
The husband’s own evidence relating to separation date having occurred in July 1998 (after his reflection and his having thought carefully about the sequence of events) is inconsistent with his later affidavit evidence that it was in July 1999 when he considered that the marriage was over and he moved to the E Street property.
In the husband’s affidavit at paragraph 44 he had stated in December 2020 that he had asked the wife to indicate her position to the ANZ bank as he was trying to arrange finance at that time. Yet in cross-examination he sought to suggest that it was the wife who approached him with the letter because she was trying to get out of her obligations as a guarantor and was trying to protect herself. At no point did the husband indicate or acknowledge that it was he who had initially asked the wife to indicate her position to the ANZ bank as he was trying to arrange finance at that time (paragraph 44 of his affidavit).
The Court is unable to determine the identity of the person who drafted the letter, with the Court observing that a lawyer may have played some role in its production. It is unlikely that the wife herself drafted the letter because, in particular, the Court accepts that the wife did not fully understand the contents of the letter. The Court observes that during the parties’ marriage and since separation, the husband had handed the wife documents and said to her words to the effect of “sign there” and the wife signed those documents without reading them; it is possible that this occurred with the letter but the Court is unable to make an affirmative finding on the evidence before it. Having regard to the Court’s discussions above, again, the Court finds that the parties likely separated in about early 2007.
Husband’s disclosure in the property proceedings
The wife submitted that the husband failed to make relevant disclosure in these property proceedings. She submitted that such failure was relevant to a number of determinations the Court was required to make in these property proceedings. She submitted that such failure included, inter alia:
(a)a failure to provide disclosure in relation to the husband’s application of the gross sale proceeds of the D Street property;
(b)failure to provide financial and other information in relation to the renting out of the D Street, Suburb G and E Street properties;
(c)failure to provide supporting documentation of the funds the husband claimed he expended on an attempted subdivision of the D Street property, and;
(d)failure to provide documentation for the alleged subdivision itself.
The husband’s counsel, in submissions, acknowledged that the husband’s disclosure had been inadequate.
The wife’s evidence relating to the husband having failed to make relevant disclosure was set out in various letters from the wife’s solicitors to the husband solicitors seeking relevant disclosure from the husband (see, for example, Exhibit MSO 34 to the wife’s affidavit and Exhibit C in the proceedings). The wife also refers to various non-disclosures by the husband in her affidavit.
During cross-examination of the husband, on occasion, he asserted that he had certain documents in his possession relating to relevant matters in issue between the parties. Counsel for the wife made calls for these documents with there being no response to the calls from the husband’s counsel. Further, during the husband’s cross-examination, he asserted that in relation to certain issues between the parties he had no obligation to provide disclosure or that he had had certain discussions with the wife previously.
The Court finds that the husband failed to make adequate disclosure in these property proceedings. Accordingly, the Court should not be unduly cautious about making findings in favour of the innocent party, here the wife: Weir & Weir (1993) FLC 92-338.
LEGAL PRINCIPLES
In Scott & Munayallan(No 12) [2023] FedCFamC1F 665, Aldridge J stated:
649.Consistent with authority such as Stanford v Stanford and Bevan & Bevan, the four-step process in determining property adjustment applications under Part VIII of the Act is as follows:
•identification and valuation of the property of the parties;
•identification and evaluation of contributions to the property (including property no longer owned by the parties);
•identification and assessment of the various matters in s 79(4)(d) to (g) including, to the extent they are relevant, the maters in s 75(2);
•consideration of matters of justice and equity.
BALANCE SHEET
The balance sheet of the parties is now set out:
Ownership Description Applicant’s value Respondent’s value Assets 1 H E Street, Suburb C $3,010,000 $3,010,000 2 J B Street, E Street $1,900,000 $1,900,000 3 H F Street, Suburb G $540,000 $540,000 4 H CBA Account …76 (as at 1/3/2025) $369,320 $369,320 5 H ANZ Account …98 (as at 24/2/2025) $38,826 $38,826 6 H CBA Account …04 (as at 26/3/2025) $30,542 $30,542 7 H Q Bank Account …35 (as at 21/1/2025) $2,014 $2,014 8 W CBA Account …47 (as at 7 April 2025) $27,133 $27,133 9 W CBA Account …84 (as at 7 April 2025) $90,282 $90,282 10 H Motor Vehicle 1 $7,000 $7,000 11 W Motor Vehicle 2 $5,000 $5,000 12 H 1,047 shares in R Company $7,643 $7,643 13 W Funds in Trust Account of Croker Edwards $30,514 $30,514 Total $6,058,274 $6,058,274 Addbacks 15 [sic] H Husband’s paid legal fees paid from CBA Account #...04, per Section 50 Schedule $93,531 $93,531 16 W Wife’s paid legal fees including expert fees, Court fees and mediator fees $10,494 $10,494 17 H Proceeds of sale of jointly held property on D Street:
$1,764,453.82 received by Husband
LESS:
$250,000 paid to Wife
$340,870.69 applied in repayment of Husband’s loan
$347,000 accounted for at Item 4
$25,000 accounted for at Item 6
Say $105,000 Tax
$93,531 accounted for at Item 15
$603,052.13$603,052 $NIL Total $707,077 $104,025 Liabilities 18 H Loan from ANZ as of 24 February 2025 $NIL $225,204 Total $NIL $225,204 Superannuation Member Name of Fund Type of Interest Applicant’s Value Respondent’s Value 19 H Super Fund 1 (as at 4/4/25) Accumulation $17,748 $17,748 20 W Super Fund 2 (as at 7 April 2025) Accumulation $83,890 $83,890 Total $101,638 $101,638 Financial Resources Ownership Description Applicant’s Value Respondent’s Value Total $6,866,989 $6,038,733
As to item 17, the wife contends that the sum of about $603,052 should be added back because the husband had failed to fully account for the sale proceeds of the D Street property. In support of her contention, the wife referred to the decision in Boulton & Boulton [2024] FedCFamC1A 132 at [38] and [47] and to which the Court refers. At [38] and [47] the Full Court stated:
38. The primary judge found that the affidavit evidence of each of the parties was “replete with minutiae” (at [576]), and that every possible allegation was made and was refuted. Cast against that background, the husband was requested to disclose an explanation as to the use and application of significant funds in his control. He did not do so. All evidence must be weighed and assessed in light of a party’s capacity to produce it. The process of drawing inferences from established facts simply involves logical deduction (G v H [1994] HCA 48; (1994) 181 CLR 387 at [4]; Mead v Mead [2007] HCA 25; (2007) FLC 93-327 at [13]). It was open to the primary judge to find that such lack of explanation permitted an inference that the husband retained the benefit of those funds.
…
47. The husband bore the onus to explain how the proceeds of the sales in his control were applied. He was placed on notice by way of the exchange outlined above as to the wife’s inquiry as to the use of the funds. He subsequently had the opportunity to provide an explanation as to the application of the funds by way of seeking leave to adduce further evidence-in-chief, or in re-examination. He chose not to do so.
The husband submitted, inter alia, that rather than a formal addback the above sum could be taken into account by the Court under s 75(2)(o). In reply submissions, the wife submitted that if the above sum was to be taken into account under s 75(2)(o) then a further 5 per cent adjustment in the wife’s favour should be made.
The husband’s evidence was that this property was sold in early 2022 and he received net sale proceeds of $1,764,453 which he paid into his CBA bank account. He acknowledged that he had kept such proceeds, and asserted that from such proceeds he paid:
·$340,879 to ANZ;
·$393,000 to undisclosed third parties;
·$250,000 to the wife;
·$107,751 in tax relating to CGT for the sale.
He acknowledged that he had retained the balance after such payments.
The manner in which the proposed addback of $603,052 is calculated is set out within item 17 of the balance sheet, Exhibit D.
The D Street property, as discussed below under “Contributions”, was a property purchased by the parties in 1989 from combined savings/monies and a mortgage loan. It was a property purchase which arose out of their relationship. The wife contributed her income to the mortgage repayments for this property up to about late 2009. The husband contributed his income to such repayments as well and he maintained the property himself from about late 2009 to its sale in about early 2022. The Court observes that the husband received the rental monies for this property for periods during the parties’ relationship and post separation to its sale.
As submitted by the wife, it could not be contended by the husband that he spent any sums from the above net sale proceeds (received by the husband in about early 2022) on his living expenses because his Financial Statement filed 10 November 2023 reveals his weekly rental income receipts of $915 exceeds his weekly total personal expenditure of $818.
The husband failed to adequately disclose the manner in which he dealt with the proceeds of sale of this property; he has failed to fully account for the proceeds of sale of that property in this regard. The Court infers that the husband has likely retained the sum of about $603,052 in some form for his own benefit.
In the circumstances, the Court will take into account the above sum of $603,052 under s75(2)(o).
As to item 18, $225,204 for an ANZ loan to the husband, the wife conceded this amount for item 18, and it shall remain in the balance sheet.
The final balance sheet accordingly will be as follows:
Ownership Description Value Assets 1 H E Street, Suburb C $3,010,000 2 J B Street, E Street $1,900,000 3 H F Street, Suburb G $540,000 4 H CBA Account …76 (as at 1/3/2025) $369,320 5 H ANZ Account …98 (as at 24/2/2025) $38,826 6 H CBA Account …04 (as at 26/3/2025) $30,542 7 H Q Bank Account …35 (as at 21/1/2025) $2,014 8 W CBA Account …47 (as at 7 April 2025) $27,133 9 W CBA Account …84 (as at 7 April 2025) $90,282 10 H Motor Vehicle 1 $7,000 11 W Motor Vehicle 2 $5,000 12 H 1,047 shares in R Company $7,643 13 W Funds in Trust Account of Croker Edwards $30,514 Total $6,058,274 Addbacks 14 H Husband’s paid legal fees paid from CBA Account #...04, per Section 50 Schedule $93,531 15 W Wife’s paid legal fees including expert fees, Court fees and mediator fees $10,494 Total $104,025 Liabilities 16 H Loan from ANZ as of 24 February 2025 $225,204 Total $225,204 Superannuation Member Name of Fund Type of Interest Value 18 H Super Fund 1 (as at 4/4/25) Accumulation $17,748 19 W Super Fund 2 (as at 7 April 2025) Accumulation $83,890 Total $101,638 Net Total Assets Total $6,038,733
Accordingly, the Court finds that the parties’ non-superannuation assets are $6,058,274, the addbacks are $104,025, and liabilities are $225,204. Thus net non-superannuation assets are $5,937,095. Superannuation assets are $101,638. Thus, the net total assets are $6,038,733.
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’ relationship commenced in about 1978 and the Court finds that they separated in about March 2007; hence a relationship of about 29 years. The parties had two children.
At commencement of cohabitation, the husband owned a property at F Street, Suburb G (“the Suburb G property”). He had purchased the property in 1975 having made a cash payment of $5,000 with the remaining $20,000 financed by a loan.
At commencement of cohabitation, the wife did not own significant assets.
The parties initially lived at the Suburb G property. Renovations were conducted for this property and both parties assisted in this regard.
In 1983 the parties purchased the B Street property for about $90,000. They purchased this property with a loan of about $60,000 secured by way of mortgage from CBA together with combined savings. They moved into that property in 1983 after its purchase. The home loan for this property was paid off in about in about the early 1990s. The husband undertook some initial renovations after purchase. In about 2000 he undertook further renovations to this property. He rented out this property from about 2001 to about March 2007.
The Suburb G property, since 1983, was rented out for the majority of the time. The rental income was received by the husband. The home loan was substantially paid off by 1990.
In 1989 the parties purchased the D Street property for $190,000. The purchase was financed from the parties’ combined savings including the husband’s redundancy monies and a loan secured by mortgage to CBA. This property was rented out after the husband’s mother and nephew had initially lived at this property. From 1989 to 1991 the husband undertook renovations. The loan for this property was discharged in late 1999.
From 2004 until 2020 to the husband spent time arranging and undertaking work for a proposed subdivision of this property which subdivision ultimately did not eventuate. The husband had alleged in his affidavit that the costs of the development was about $792,000 calculated from a CGT schedule prepared by his accountant and annexed to his affidavit at page 18. In final submissions, the husband’s counsel submitted that by reference to this schedule at most about $517,000 was spent by the husband. However, as submitted by the wife, the husband had failed to provide disclosure in relation to the proposed subdivision (for example, no bank statements nor any invoices/receipts were disclosed in relation to the proposed subdivision). Accordingly, the Court places no significant weight upon the monetary figures set out in the schedule. The Court does not accept that the husband spent about $792,000 (nor $517,000) on costs for the proposed subdivision.
The husband obtained a line of credit from S Bank in 2013 for $350,000 and secured against the Suburb G property. He alleges that these monies together with the assistance of friends was utilised for this proposed subdivision. However, and again, his lack of disclosure does not permit the Court to conclude that he did so utilise such monies. And further in this context, it is unclear whether the husband’s receipt of rental income from the various properties both pre-and post-separation would have afforded him a source of monies for the proposed subdivision because the husband failed to make adequate disclosure as to such rental income.
The D Street property was sold in early 2022 with the husband receiving the net sale proceeds of $1,764,453. The Court refers to its discussions in relation to the manner in which the husband dealt with such sale proceeds under item 17 in the initial balance sheet above.
In mid-1999 the E Street property was purchased in the name of the husband for $450,000 with a loan from the T Bank secured by mortgage against this property and the D Street property. The loan amount was $506,000 and the husband applied those funds to the purchase of the E Street property and to pay off the loan from CBA for the D Street property.
The wife worked in employment during most of the parties’ relationship. She had commenced working full-time in about 1985. She applied her income to the benefit of the family. The wife contributed her income until about late 2009 (when she ceased working in full-time employment) towards the parties’ mortgage loan repayments (except payments for the loan secured on the Suburb G property), grocery bills, clothing expenses, and schooling and extracurricular activities.
The husband worked in full-time employment during the parties’ relationship and he contributed his income for the benefit of the family. He paid the family’s bills, including utilities and he contributed his income towards the mortgage loans when rental income did not meet mortgage loan repayments.
The husband undertook the organisational tasks of purchasing properties and related matters. He organised repairs and maintenance to the properties owned by the parties.
The husband received the rental income from the various real estate properties of the parties which were rented out.
The wife was also the primary carer of the children during their childhood. The husband assisted the wife with childcare including driving for the children’s activities. During the parties’ relationship she carried out most of the housework, including cooking, shopping, washing and cleaning. The husband attended to gardening work and household repairs. These homemaker and parenting contributions indirectly enabled the parties to earn income including employment income, which in turn was utilised to accumulate assets.
In February 2021 the husband refinanced the loan for the E Street property with ANZ, secured by way of mortgage over that property, and he removed the collateral security of the D Street property. He had borrowed a total of $240,000.
Post-separation from about late 2009 (when the wife ceased employment), the husband paid the loan repayments on remaining mortgage loans. He continued to receive the rental income from the parties’ properties (excluding the B Street property where the wife was living and noting that the D Street property was sold in early 2022). Due to the husband’s lack of disclosure, it is quite unclear what were the differences if any between the husband’s overall mortgage loan repayments and rental income received by him.
Post-separation the wife maintained the B Street property as asserted by her.
Post-separation the husband maintained the E Street, D Street, and Suburb G properties.
As to superannuation, the wife retired from employment in 2009. The husband retired from his employment in early 2022. Their respective superannuation balances are modest. There is a lack of evidence as to the superannuation balances as at separation in early 2007. The Court takes into account that the husband probably accumulated some superannuation post-separation to the date of his retirement.
Taking into account all the above discussed matters, and viewing the parties’ contributions holistically, the Court finds that the parties’ contributions to the parties’ net total assets of $6,038,733 should be assessed as equal.
SECTION 75(2) OF THE ACT
The wife is aged 85 years. The husband is aged 81 years. Both parties enjoy reasonable health. Both parties are retired. Their children are adults.
The husband has re-partnered.
The parties’ respective superannuation assets are modest.
The wife contends that an adjustment of 2.5 per cent should be made in her favour because the husband failed to fully disclose what he did with a borrowing (a line of credit) of about $350,000 from the S Bank in about 2013, which borrowing had been secured against the Suburb G property.
The husband states that the above borrowing was obtained to fund a proposed subdivision project for the D Street property. However, the husband failed to adequately disclose how these funds were spent by him (except that a loan account reveals about $18,000 being spent on taxes and personal living expenses of the husband expended between about 2013 and 2018). This borrowing was paid off from the proceeds of sale of the D Street property. The Court takes into account the husband’s failure to account for these monies pursuant to s 75(2)(o).
The wife contends that an adjustment of 5 per cent should be made in her favour because the husband failed to fully disclose what he did with some $603,052 of funds relating to the sale proceeds of the D Street property; the Court refers to its balance sheet discussions in this regard. The Court takes into account the husband’s failure to account for these monies in respect to the sale proceeds of the D Street property pursuant to s 75(2)(o).
Taking into account the above matters, there should be an adjustment of 7.5 per cent in favour of the wife. This results in an adjusted contributions finding of 57.5 per cent in favour of the wife and 42.5 per cent in favour of the husband. In relation to the net total assets of $6,038,733, this results in a disparity of $905,810 in the wife’s favour.
JUSTICE AND EQUITY
Pursuant to the Court’s adjusted contribution findings, the wife should receive $3,472,271 but less her paid legal fees of $10,494, leaving $3,461,777. The husband should receive $2,566,461 but less his paid legal fees of $93,531, leaving $2,472,930. The resulting disparity between the parties is thus $988,847 in the wife’s favour.
Should the wife retain:
(a)The B Street property: $1,900,000
(b)Her bank accounts: $117,415
(c)Her car: $5,000
(d)Her funds in her solicitor’s trust account: $30,514
total $2,052,929,
and the husband retain:
(a)The E Street property: $3,010,000
(b)The Suburb G property: $540,000
(c)His bank accounts: $440,702
(d)His car: $7,000
(e)His shares: $7,643
total $4,005,345,
less $225,204 ANZ loan,
totalling net $3,780,141,
then the husband will need to pay the wife $1,307,211 ($3,780,141 less $2,472,930).
Should the husband be unable to pay the above sum to the wife within 28 days then the E Street property should be sold.
The Court refers to its discussions above in these Reasons, including its balance sheet and s 75(2) discussions and findings, relating to the husband’s non-disclosures and failure to account for monies.
In light of the above matters, 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 ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 7 May 2025
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