Page & Gaubert (No 2)
[2023] FedCFamC2F 1089
•24 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Page & Gaubert (No 2) [2023] FedCFamC2F 1089
File number(s): PAC 5874 of 2020 Judgment of: JUDGE NEWBRUN Date of judgment: 24 August 2023 Catchwords: FAMILY LAW – PROPERTY – Just and equitable orders made. Legislation: Family Law Act 1975 (Cth) ss 90SF(3), 90SM(3), 90SM(4) Cases cited: Lotta & Lotta [2017] FamCA 50 Division: Division 2 Family Law Number of paragraphs: 69 Date of hearing: 14 – 15 August 2023 Place: Parramatta Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr Hodgson (direct brief) ORDERS
PAC 5874 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PAGE
Applicant
AND: MR GAUBERT
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
24 AUGUST 2023
THE COURT ORDERS THAT:
1.The parties forthwith do all acts and things and sign and execute all documents necessary to cause the amount of $75,000 paid into the Supreme Court of New South Wales, case number …, pursuant to orders made, to be paid to the wife as to the sum of $32,200, and to the husband as to the sum of $42,800.
2.Subject to the above Order, as between the parties the wife be declared to be the owner in law and equity of all property in her possession or under her control.
3.Subject to Order 1 above, as between the parties the husband be declared to be the owner in law and equity of all property in his possession or under his control.
4.Liberty to the parties to apply to the court on 7 days’ notice in respect to the implementation or facilitation of the above Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN
INTRODUCTION
These are Reasons for Judgment relating to a final property hearing held before the Court on 14 to 15 August 2023.
The applicant de facto wife and respondent de facto husband both appeared (hereafter the “wife” and the “husband”). The wife was self-represented. Mr Hodgson of counsel appeared for the husband.
PROPOSALS
By her Amended Initiating Application filed on 23 February 2023, and her Outline of Case filed 7 August 2023, the wife seeks one final order in the following terms:
1.A just and equitable division of property formulated pursuant to disclosure is to be further advised but in any event on a without prejudice basis the Respondent shall pay the Applicant a sum of $300,000.00.
(As per original)
The husband seeks orders as set out in his Outline of Case filed 9 August 2023 as follows:
1.That the parties do all acts and things and sign and execute all documents necessary to cause the amount of $75,000 paid into the Supreme Court of NSW pursuant to orders made, comprising the balance of the net proceeds of sale of the [Town Q] property, to be paid to the Respondent.
2.That as between the parties and subject to these orders, the Applicant be declared to be the owner in law and equity of all property in her possession or under her control.
3.That as between the parties and subject to these orders, the Respondent be declared to be the owner in law and equity of all property in his possession or under his control.
4.That the Applicant pay the Respondent’s costs of and incidental to these proceedings.
MATERIAL RELIED UPON
The wife relied upon:
(a)Her Outline of Case (Final Hearing) filed 7 August 2023;
(b)Amended Initiating Application filed 23 February 2023;
(c)Her affidavit filed 2 March 2023;
(d)Her Financial Statements filed:
(i)19 July 2023;
(ii)24 February 2023;
(iii)14 September 2022;
(iv)2 November 2020;
(e)This Court’s Reasons for Judgment of 22 June 2022;
(f)A document titled “Statement of Issues and agreed facts (Applicant only)” filed 9 August 2023;
(g)Her tender bundle;
(h)Subpoena to Ms O filed 18 July 2023;
(i)Notice of Objection filed 18 July 2023.
The husband relied upon:
(a)His Outline of Case (Final Hearing) filed 9 August 2023;
(b)Response to Initiating Application filed 16 February 2021;
(c)His affidavit filed 22 March 2023;
(d)His Financial Statement filed 7 June 2023;
(e)Affidavit of Ms P filed 11 March 2023;
(f)Affidavit of Ms BL filed 15 April 2023;
(g)His tender bundle.
The following documents became exhibits:
(a)Exhibit A: Wife’s tender bundle;
(b)Exhibit B: Husband’s tender bundle;
(c)Exhibit C: Subpoenaed records of Ms O.
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 under the headings, “Balance sheet”, “Contributions”, and “Section 90SF(3)”.
Legal principles
The Court refers to section 90SM of the Act relating to the alteration of property interests in property settlement proceedings after the breakdown of a de facto relationship.
The following discussed legal principles apply equally to property adjustment proceedings between de facto couples.
In Lotta & Lotta [2017] FamCA 50 Foster J stated:
281 The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford (2012) 247 CLR 108 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman (2014) FLC 93–592 and Scott & Danton [2014] FamCAFC 203.
282The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
283Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
284There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
285In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
286In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the wife seeks an order for adjustment of property and the husband contends that there should be no such adjustment.
287It is thus important to ascertain the present property and resources of the parties so as to facilitate a consideration of the s 79(2) question.
288In some circumstances it is not possible to determine whether it is just and equitable to make adjustment orders as to the parties’ present property rights without a consideration of s 79 (4) matters.
289Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).
290The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92–877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.
BALANCE SHEET
A “joint balance sheet” was prepared by counsel for the husband in relation to which each party made submissions and which is now set out:
BALANCE SHEET Ownership Description Wife’s value Husband’s value Assets 1 H Motor Vehicle 1 $ E $5,500.00 2 H Westpac eSaver *…13 $ $2.03 3 H Westpac Choice joint account with Ms O *…76 $ $1,145.41 4 H Westpac Choice *…75 $ $0.55 5 H ANZ Online Saver *…52 $ $8.54 6 H ANZ Access Advantage *…29 $ $1,413.86 7 H ANZ Cash Investment Account *…67 $ NIL 8 H BB Pty Ltd $ NIL 9 H Supreme Court trust account $75,000.00 $75,000.00 10 W Motor Vehicle 2 $10,000.00 $10,000 11 W CBA account *…68 $14.74 $14.74 12 W CBA account *…76 $70.00 $70.00 13 W Furniture $1,000.00 $1,000 Total $86,084.74 $94,155.13 Addbacks 14 W Motor Vehicle 3 sold by wife without husband’s consent, which was owned by his company, BB Pty Ltd $15,000.00 $15,000.00 15a H
Motor Vehicle 4
$58,000.00 NIL 15b W Wife’s sale of two animals and Motor Vehicle 5 $ $7,800 Total $73,000.00 $22,800.00 Liabilities 16 H ANZ low rate credit card *…56 $ $3,656.05 17 H ATO tax bill $ $63,474.32 18 W Afterpay/Zip pay $659.49 $ 19 W Company BM $2,905.74 $ 20 W Company BN $5,742.50 $ 21 JT Exclusive business debts $9,303.86 Not admitted 22 W Company BO $302.58 $ 23 W Loan from Ms BP $1,650.00 $ 24 W Loan from Ms BQ $7,435.00 $ 25 W CBA credit card $5,048.97 $ 26 W Ms D $2,000.00 $ 27 W Service NSW $1,246.00 $ 28 W CBA overdraft $2,000.00 $ 29 W Rent arrears $10,800.00 $ Total $49,094.14 $67,130.37 Superannuation Member Name of Fund Type of Interest Wife’s value Husband’s value 30 H Gaubert Superannuation Fund $ $268,600.00 31 W Super Fund 1 Accumulation $17,380.45 $17,380.45 Total $17,380.45 $285,980.45 Net Total Assets Total $127,371.05 $335,805.21
In relation to items 2 – 7, being various bank account balances held by the husband, the husband submitted that they should be removed from the balance sheet because they were small amounts, and there was no evidence adduced by either party as to the bank balances at the end of the parties’ relationship in January 2019. The Court would make the same comments in relation to items 11 – 12 relating to the wife’s modest bank accounts. The wife made no submission to the contrary, and these items shall be removed from the balance sheet.
In relation to item 8, in the husband’s company, there was no evidence adduced as to the value of this entity and it shall be removed from the balance sheet.
In relation to item 10, the wife’s car, the husband submitted that it should be removed from the balance sheet because it was acquired by the wife post separation. It shall be removed from the balance sheet.
In relation to item 13, the wife’s furniture, the husband submitted it should be removed from the balance sheet because there was no evidence adduced as to it being acquired during the parties’ relationship. It shall be removed from the balance sheet.
In relation to the proposed addback (at the instance of the husband, opposed by the wife) in item 14, the Motor Vehicle 4 $15,000, in about late 2017, the husband’s company BB Pty Ltd purchased the Motor Vehicle 3 for $48,100. He caused a cash deposit of $15,260 to be paid and the balance was financed over 40 months through Company BR. The husband made the loan repayments. The husband had gifted the Motor Vehicle 3 unconditionally to the wife in about early 2018, and the Court accepts the wife’s evidence in this regard including the husband giving the Motor Vehicle 3 to the wife. The Motor Vehicle 3 was delivered to the property in early 2018.
After the parties’ final separation in January 2019 the wife retained the Motor Vehicle 3. She sold it to her former landlord Mr BS in 2020 for $10,500 and later in 2020 she bought it back from him for $10,000. In October 2020, her financial circumstances being parlous, she sold it for $15,000 to pay for her reasonable day to day living expenses including food. In these circumstances the proposed addback of $15,000 in relation to the Motor Vehicle 3 should not be made, and it shall be removed from the balance sheet.
In relation to item 15a, the proposed add back (at the instance of the wife, opposed by the husband) for the Motor Vehicle 4, $58,000, in October 2018, the parties decided to buy a business. The Court accepts the wife’s evidence that this business was not purchased to rescue the wife from unemployment. The husband obtained a business loan through his company, BB Pty Ltd, in the amount of $128,550, to purchase a business and Motor Vehicle 4. The parties set up BA Pty Ltd, and they became joint directors of that company. The parties agreed to divide profits 20% to the husband and 80% to the wife. The wife ran the business including working as an employee from around late 2018 and during 2019. For a period the income from the operation of the business paid for loan repayments on the Motor Vehicle 4, and the parties, when necessary, topped up the business’s bank account to enable these loan repayments to be made.
Ultimately the business failed to make a profit, payments on the loan for the Motor Vehicle 4 fell behind, and the Motor Vehicle 4 was repossessed by Company BT. The husband paid $90,000 to Company BT to settle the loan and retrieve the Motor Vehicle 4. He spent $23,328 for repairs to the Motor Vehicle 4 and sold it for $58,000 in early 2021. The Court, when considering the husband’s contributions to the Motor Vehicle 4 and the business (see below under Contributions) can take into account his receipt of $58,000. Item 15 relating to the proposed addback in relation to the Motor Vehicle 4 shall be removed from the balance sheet.
In respect to the husband’s belatedly proposed addback, of $7,800, item 15b, relating to items 1, 3, and 4, in Part M of the wife’s Financial Statement filed 19 July 2023, the sale of two animals and the Motor Vehicle 5, there is no evidence as to whether these animals arose out of the parties’ relationship. As to the sale of the Motor Vehicle 5, $5,600, the wife originally purchased the Motor Vehicle 5 for $2,500 and she had to sell it, reasonably in the Court’s view, to pay for legal fees. The proposed addback of $7,800 shall be removed from the balance sheet.
In relation to stated liabilities on the balance sheet, the husband submitted that items 16 and 17 should be removed from the balance sheet and they will be so removed.
The wife submitted that item 18 arose after the parties’ relationship and it should be removed from the balance sheet.
In relation to items 19 and 20, Company BM, $2,905, and Company BN, $5,742, relating to motor vehicle toll charges, the wife submitted that both parties utilised such toll facilities during the relationship. In oral evidence she stated that some part of the Company BN debt existed prior to the relationship commencing but could not give specifics. The husband submitted that these liabilities should have been discharged by the wife in circumstances where she had an excess of income over expenditure stated in her Financial Statement filed 19 July 2023, and there was no evidence that these toll charge entities were pursuing the wife for payment.
In the wife’s Financial Statement filed 3 November 2020, and later Financial Statements, the wife had listed Company BM, $2,905, as a personal liability. In that same Financial Statement she had listed as “joint business debt” Company BU Toll, $94, and Company BV (Tolls), $844, with these two alleged joint business debts appearing in her later financial statements. During submissions, the wife did not seek to include these two alleged joint business debts into the balance sheet as liabilities.
The Court observes in the wife’s Financial Statements filed 3 November 2020, 14 September 2022 and 24 February 2023 the wife had not listed Company BN as a creditor.
In light of the above discussion, items 19 and 20 shall be removed from the balance sheet as they do not clearly arise out of the parties’ relationship.
In relation to item 21, the wife’s contended joint Company BA debt of $9,303, comprising numerous individual small debts, are not admitted by the husband. These alleged joint debts have been consistently referred to in all the wife’s filed Financial Statements. However, during final submissions, the parties were in dispute as to whether relevant invoices pertaining to these alleged joint debts had been provided by the wife to the husband. There are no invoices in evidence. There is no evidence that the creditors the subject of these alleged joint debts are pursuing the wife for payment. There is no evidence relating to how and when these alleged joint debts came into existence. Item 21 shall be removed from the balance sheet.
The wife conceded, during submissions, that items 22, 23, 26, 27, 28, and 29 did not relevantly arise out of the parties’ relationship. They shall be removed from the balance sheet.
As to item 24, a loan from Ms BQ, $7,435, during submissions the wife stated that this loan was incurred about one year ago and related to the purchase of household items including household items and fencing. This item shall be removed from the balance sheet.
As to item 25, the alleged loan from Ms D, $2,000, according to the wife during submissions, it related to legal fees relating to the removal of a second caveat the wife had lodged on the property. Item 25 shall be removed from the balance sheet.
The final balance sheet accordingly will be as follows:
BALANCE SHEET Ownership Description Value Assets 1 H Motor Vehicle 1 $5,500 2 H Supreme Court trust account $75,000 Total $80,500 Superannuation Member Name of Fund Type of Interest Value 3 H Gaubert Superannuation Fund $268,600 4 W Super Fund 1 Accumulation $17,380 Total $285,980 Net Total Assets Total $366,480
Accordingly, the parties’ non-superannuation assets are $80,500. Their superannuation entitlements are $285,980.
SECTION 90SM(3) 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 de facto relationship of the parties was approximately two years in length, an aggregate of the following periods:
(a)24 September 2016 until 29 January 2017;
(b)15 March 2017 to 2 September 2018; and
(c)6 October 2018 to 3 January 2019.
At cohabitation commencement, the wife had a Motor Vehicle 6, and a pet. She had superannuation in the vicinity of about $69,000. She was gainfully employed earning a package of $130,000pa in her employment.
It is not clear exactly what assets the husband had at cohabitation commencement. He had monies within his own self-managed superannuation fund; that fund is now valued at $268,600 and the husband last made contributions to that fund in 2011/2012. By the time the Town Q property was purchased by him in about 2017 (see below) he had monies from an inheritance and savings approaching about $331,600. During the relationship he was a professional.
In 2017, the husband purchased a property at AK Road, Town Q (“the property”) for $970,000. He paid a deposit in the amount of $331,600, comprising an inheritance and savings, and obtained a mortgage in his sole name in the amount of $679,000. He commenced mortgage repayments in about late 2017. The parties moved into the property in late 2017. The wife had worked with Employer X until late 2017.
The wife conducted significant work relating to the purchase of the property including research and liaising with conveyancers and town planners.
The husband paid the mortgage repayments, outgoings, and utilities in relation to the property; he started making mortgage repayments in about late 2017. The property was eventually sold by the husband in early 2020 for approximately $980,000. The Court does not accept that the husband acted unreasonably in selling the property for the price he obtained. The Court finds on the balance of probabilities that the wife indirectly contributed to the husband’s financial ability to make the mortgage repayments, outgoings and utilities through her contributions during the relationship as follows:
(a)She gave the husband cash monies totalling about $50,000 to contribute towards mortgage repayments, and to enable him to pay bills he claimed he was short for, during the period from about January 2018 to March 2019. On occasion during the above period the husband told the wife that he was experiencing financial difficulties, and the Court accepts the wife’s evidence in this regard. The wife was motivated to make these cash payments because she did not want the parties to lose the property through mortgage loan default.
(b)She paid an architect’s fee paid in the amount of $5,577. (The husband had otherwise paid all such fees as well as surveyor’s fees.)
(c)She paid for the bond, rent in advance and ongoing rent, and all moving costs, in relation to the parties renting a property in Suburb AX, Queensland from about mid-2018. This was paid out of her inheritance. Back in Queensland at this time, the wife worked as a full-time professional with Employer AR. The parties lived at Suburb AX until about the end of 2018.
(d)She paid for rental premises at Suburb W, Queensland, during, inter alia, the second half of 2017, in relation to which the husband regularly spent the night and in this respect the Court accepts the wife’s evidence. In this context the Court observes, inter alia, that the husband’s Town BD rental accommodation came to an end in mid-June 2017.
(e)She paid for the parties’ groceries and household items, whilst the parties resided together in NSW and Queensland.
(f)She paid for the rent of a shipping container delivered to the property which enabled the parties to store their belongings.
(g)She paid for the deposit and initial rent for a portable cabin that the parties lived in on the property, and then subsequently gave the husband money regularly to contribute to its rent. Otherwise this rent was paid by the husband. (Apart from this cabin there was no habitable house on the property).
(h)She assisted the husband with his business through, inter alia, her administrative work, including assessing and chasing up the husband’s unpaid fees. The wife’s work in this context was carried out in both 2017 and 2018 which work is supported by her annexures to her affidavit referring to certain work, and communications with Ms P and Ms BL. It is also supported by documents in the wife’s tender bundle, Exhibit A. It is likely that the wife’s work in this context was intermittent during the above years. The Court accepts that the name Company BW was not registered as such as a business name. The wife was not remunerated for this work on behalf of the husband.
(i)During the relationship the wife provided significant emotional and practical support for the husband relating to his defence of professional misconduct complaints brought against him in Queensland, and the Court accepts the wife’s evidence in this context. The husband’s emotional state had been parlous at times in relation to these complaints and he had experienced suicidal ideation at times during the relationship, and again, the wife supported him.
(j)During the relationship the wife assisted the husband in driving him to and from airports, booking flights and hotels for the husband when he was busy working and studying for exams, assisting in emptying his Suburb AC apartment whilst he worked, and she even “stupidly” took demerit driving points for the husband at his request relating to his speeding fines and the risk of loss of driver’s licence.
The wife worked for Company AO in Town AP working full-time after the parties moved into the property in late 2017 until about mid-2018. The wife worked in a professional role with Employer AR in Brisbane from about mid-2018 to about late 2018. The wife had received approximately $159,000 as an inheritance from her late father shortly after his passing in 2018.
The wife carried out the vast majority of maintenance of the property, often using a Motor Vehicle 3 (see below). At the time of purchase the property was overgrown. This work was carried out whilst the parties resided at the property from about late 2017 to about mid 2018; from after mid 2018 up until about the end of 2018, usually on weekends whilst the parties resided in rented accommodation in Suburb AX, Queensland; and from final separation in January 2019 to March 2020 on a regular basis whilst the wife resided at the property. She continually slashed paddocks, and had removed old AG pipe and old fencing. She filled holes on the property, she organised and solely paid for electric fences and installed them and looked after the parties’ animals. She weeded. The husband occasionally carried out some maintenance work to the property such as slashing paddocks, paid for some repairs, and carried out some shed roof repair work up to final separation in January 2019.
The parties’ final separation was in January 2019. In February 2019 the husband agreed to provide a lease to the wife to live at the property for three years for a rent of one dollar per week. The husband agreed to pay all the cabin rent, shipping container rent, utilities and pay the costs associated with fencing and shelters for the wife’s animals. The Court takes into account the wife’s occupation of the property from after separation up to March 2020 for a nominal rent.
By about mid-2019 the husband was in financial difficulties and decided to sell the property. It was placed on the market in mid-2019. Settlement was to take place in late 2019. The wife refused to leave the property. She brought NCAT proceedings in late 2019 contending that the husband had breached the residential lease between the parties. In late 2019, the wife lodged a caveat against the property. In late 2019 consent orders were entered into in the NCAT proceedings pursuant to which the wife was required to leave the property by November 2020. The wife refused to leave the property on this latter date and she lodged an appeal in NCAT. The unsuccessful appeal proceedings concluded by the wife being required to vacate the property in March 2020 and which occurred. In late March 2020, the wife lodged a further caveat against the property.
The Court is not persuaded, on the balance of probabilities, that the wife acted unreasonably in relation to her remaining in occupation of the property up until March 2020, particularly in view of the husband’s agreement to lease the property to the wife for a nominal rent in February 2019 and her obtaining legal advice. In oral evidence, the husband confirmed that a written document had been produced in relation to the lease agreement.
In April 2020, the property was sold, pursuant to an agreement between the husband and the wife’s then solicitor that the caveat would be removed, and $75,000 would be placed into that solicitor’s trust account from the sale proceeds, which occurred. The net proceeds of sale were $212,000 and accordingly the husband received $136,292 (after taking into account the $75,000 paid into the trust account). The $136,292 was spent by the husband approximately as follows: about $50,000 was paid to the ATO for a personal tax debt (there was no evidence that such debt related to the parties’ relationship), and $90,000 was paid to Company BT to expunge a debt owed on the business Motor Vehicle 4.
In March 2021 the husband commenced proceedings in the Supreme Court of NSW against the wife’s former solicitor, pertaining to the release of the $75,000 held in the solicitor’s trust account. In February 2022 the wife was added as a defendant and all other defendants were removed. On the same day, orders were made for the $75,000 in trust monies to be paid into the Supreme Court of NSW, where they remain today.
In relation to the Motor Vehicle 3, the Court refers to and adopts its previous discussions relating to the Motor Vehicle 3 under the heading “Balance Sheet” including the Court’s discussions relating to the husband’s financial contributions in relation to the Motor Vehicle 3. The husband’s loan repayments in relation to the Motor Vehicle 3 continued from its purchase by his service company until about mid-2019 when he experienced financial difficulties by reason of a drop in income. He had paid for some Motor Vehicle 3 repairs.
In relation to the business and Motor Vehicle 4, the Court refers to and adopts its previous discussions relating to the Motor Vehicle 4 under the heading “Balance Sheet”. Again, the Court takes into account the husband’s receipt of $58,000 relating to the sale of the Motor Vehicle 4 when considering his financial contributions to the Motor Vehicle 4 and business. The Court does not accept that the wife caused any wastage in relation to the Motor Vehicle 4’s condition prior to its sale.
The wife carried out the vast majority of household and domestic chores at the residences at Suburb W, at the property, and at Suburb AX, and the Court accepts her evidence in this regard. The Court would assess her homemaker contributions during the relationship as vastly superior to those of the husband. The Court accepts the wife’s evidence as to the periods of time when the husband was usually residing at these residences and the property.
The husband paid for surgery for wife ($11,413) in about early 2018 and flights to UK after death of her father ($7,713).
The husband ultimately contended in oral submissions that his contributions should be assessed at 90%. The wife did not contend for any particular percentage figure in relation to her contributions; however, the Court has inferred from her material and related submissions that she disputed the husband’s contributions contention at 90%, noting that she seeks a property adjustment in her favour in the sum of $300,000.
Take into account all the above discussed matters, and viewing the parties’ contributions holistically, the Court finds that the wife’s contributions should be assessed at 30% and the husband’s at 70% but only in respect to the parties’ non-superannuation assets. In respect to the parties’ non-superannuation assets of $80,500, the Court’s contribution findings results in a disparity of $32,200 in the husband’s favour. The Court finds that neither party made any relevant contribution to the other party’s superannuation entitlements at any time.
SECTION 90SF(3) OF THE ACT
The total length of the parties’ de facto relationship was a little more than two years with final separation in January 2019. There were no children of the relationship.
The wife is aged 44. The husband is aged 58.
The husband is in good health. He is a professional presently completing further training. Such training may take up to one year to complete. The husband’s Financial Statement filed 7 June 2023 states that his average gross weekly income as a professional is about $4,000. By reference to his income receipts in his bank statements in Exhibit A, his weekly average gross income from about March 2023 to June 2023 was about $7,279. He probably has a real prospect of earning significantly more than his present income after completing his training.
The wife suffered injuries in a car accident in 2020. She was diagnosed with PTSD and experiences symptoms of PTSD related to the accident including difficulties with driving long distances, and attending face-to-face in the workplace. Her PTSD was being treated through a psychologist in 2023. She has received a positive prognosis from her psychologist who recommended specialised treatment for PTSD. The wife presently works in full-time employment as a professional earning $2,403 average income per week before tax, albeit working remotely. Her evidence indicates that she has a significant work history in these roles.
The Court would assess that the husband’s income earning capacity is significantly greater than that of the wife’s earning capacity.
The Court takes into account the husband’s far superior superannuation entitlement, $268,600 compared to the wife’s $17,380. The wife drew down on her superannuation (about $42,198) after her car accident and related incapacity to pay for living expenses.
The husband is married to Ms O. Ms O has worked as a health care worker and has earned income in those roles. The husband’s Financial Statement filed 7 June 2023 states that Ms O’s average weekly income is zero dollars. However, the Court observes that Ms O received fairly regular modest income from Company BX during the period from March 2023 to July 2023 referred to in Exhibit C. Ms O is also studying. Ms O’s son from a former relationship, aged 16, lives with herself and the husband.
The husband asserted that he has $67,130 in total debt (see the initial “joint balance sheet” prepared by counsel for the husband) which did not enter the final balance sheet. The wife asserted she has $49,090 in total debt which did not enter the final balance sheet.
The Court does not accept on the balance of probabilities that there has been any relevant non- disclosure by the husband, and the Court accepts his evidence relating to the provision of requested documents in this context.
The husband contended that there should be no adjustment in favour of the wife under s 90SF(3). The wife contended, by inference, that there should be an adjustment in her favour under s 90SF(3), without placing a percentage figure on it.
Take into account all the above discussed matters, there should be an adjustment in favour the wife of 10%. This results in an adjusted contributions finding in favour of the husband of 60% and 40% to the wife, with the resulting disparity being $16,100 in the husband’s favour.
JUSTICE AND EQUITY
The parties will retain their respective superannuation entitlements.
Should the husband retain his Motor Vehicle 1, $5,500, then he should receive $42,800 from the trust monies of $75,000 held in the Supreme Court of NSW. The wife should receive $32,200 from such trust monies.
Each party, from their entitlements referred to above, can choose to pay off personal debt. They both will probably continue to work in their respective careers. The parties each presently rent premises; the wife in Queensland, and the husband in Melbourne.
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 sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Deputy Associate:
Dated: 24 August 2023
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