Poulson & Gadal
[2024] FedCFamC2F 392
•28 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Poulson & Gadal [2024] FedCFamC2F 392
File number(s): MLC 10211 of 2022 Judgment of: JUDGE HARLAND Date of judgment: 28 March 2024 Catchwords: FAMILY LAW – parenting settled by consent – property – what should be included in the property pool – wife alleges the husband is hiding assets - weight to be given to contributions and s 75(2) factors – nondisclosure - family violence Legislation: Family Law Act1975 (Cth) ss 75(2), 75(2)(o), 75(2)(1), 79(1); 79(2); 79(4), 81, 106A Cases cited: Benson & Drury [2020] FamCAFC 303
Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143
Robb & Robb [1994] FamCA 136
Stanford v Stanford (2012) 247 CLR 108
Division: Division 2 Family Law Number of paragraphs: 87 Date of hearing: 12 and 13 March 2024 Place: Melbourne Counsel for the Applicant Ms O’Connell Solicitor for the Applicant Pentana Stanton Lawyers Counsel for the Respondent Mr Turner Solicitor for the Respondent Trapski Family Law ORDERS
MLC 10211 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS POULSON
ApplicantAND: MR GADAL
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
28 MARCH 2024
THE COURT ORDERS THAT:
1.Within seven (7) days of the date of these Orders, the parties shall do all acts and things necessary to cause the transfer of all the proceeds of the sale of the property situate at B Street, Suburb C held in the trust fund of Pentana Stanton Lawyers to the applicant.
2.Within 14 days of the date of the Orders, the parties shall do all acts necessary to close the joint bank account with D Bank and share the balance equally.
3.Subject to any other Orders contained herein, the applicant shall retain for her sole and exclusive use and benefit and indemnify the respondent and keep him indemnified with respect to the following items of property:
(a)All of the proceeds of sale of the B Street property;
(b)Her Motor Vehicle 1;
(c)All bank accounts held in her name;
(d)Furniture and effects in her possession or control;
(e)Her superannuation entitlements;
(f)All credit cards held in her name;
(g)The Motor Vehicle 1 car loan; and
(h)All other debts in her name.
4.Subject to any other Orders contained herein, the respondent shall retain for his sole and exclusive use and benefit and indemnify the applicant and keep her indemnified with respect to the following items of property:
(a)The real property situate at E Street, Suburb F;
(b)His Motor Vehicle 2;
(c)All bank accounts held in his name;
(d)Furniture and effects in his possession or control;
(e)His superannuation entitlements;
(f)All credit cards held in his name;
(g)The mortgage over the Suburb F property; and
(h)All other debts in his name.
5.As between the applicant and respondent, and subject to the above Orders, they each shall each respectively retain all interest in and entitlement to:
(a)All personal property now in his/her respective possession or control;
(b)All interests in life insurance policies standing in his/her sole name respectively.
6.Unless specified in these orders, and save for the purposes of enforcing the terms of same:
(a)Each party shall be solely entitled to the exclusion of the other, to all property, including choses-in-action and financial resource, in the possession and /or control of such party as at the dates of these orders;
(b)All insurance policies remain the sole property of the owner named;
(c)Each party forgoes any claims they may have to any superannuation benefits or other employment related benefits belonging to or earned by the other or any future inheritances received;
(d)Each party is solely responsible for any liability of whatsoever nature and kind in their respective names;
(e)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
(f)any joint tenancy of the parties in any real or personal estate is expressly severed.
7.The parties shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed.
8.In the event either party fails to comply with order 2 of these Orders, then a Registrar of the Federal Circuit and Family Court of Australia is empowered and authorised to exercise all necessary documents on behalf of the non-complying party pursuant to section 106A of the Family Law Act 1975 and by way of consequential arrangement to this order: -
(a)an affidavit by the compliant party and/or their solicitor setting out the noncompliant party’s failure to comply with these orders will be sufficient evidence of non-compliance.
9.Pursuant to section 81 of the Family Law Act 1975, the parties intend these orders shall as far as practicable finally determine the financial relationships between them and avoid further proceedings between them.
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 HARLAND
The parties were able to agree on final parenting orders for their daughter X, aged 11 on the morning of the trial. The parenting orders provide for the father to spend time with X each alternate Sunday from 12.00pm to 6.00pm and as otherwise agreed between the parties. They could not resolve property matters. This is not surprising given the significant dispute between the parties about what should be included in the asset pool.
The wife is aged 35 years. The husband is aged 36 years. The parties met in 2011 and commenced living together in 2012 and married in 2012. The parties first separated in June 2018. The wife says the parties reconciled and recommenced living together in mid-2021. The husband says the reconciliation occurred in early 2020. The parties separated on a final basis in December 2021 and are legally divorced.
THE PARTIES’ POSITIONS
The wife says that the husband has refused to comply with multiple requests for disclosure and that he is hiding assets. She seeks the inclusion of several assets that she claims the husband is the beneficial owner of. The wife also says that she and the children were subjected to significant family violence. The wife also has a 15-year-old son G from a previous relationship.
The husband denies the wife’s allegations of family violence.
Both parties’ solicitors were careless when preparing the case outlines as the percentages they refer to equal more than 100%. The husband claims that there should be an adjustment of 75% in his favour on the basis of contributions and the wife to receive 35%, which, presumably is an error. Even if he meant that there should be a 65% adjustment for contributions in his favour, this is well above any just and equitable outcome in the circumstances of this case. The wife says that the husband’s contributions should be assessed at 50% and that her contributions should be assessed at 55%. The wife says that there should be a 25% adjustment for s75(2) factors and that the overall adjustment should be 80% in her favour.
The husband acknowledges that there should be a 10% adjustment in the wife’s favour for s75(2) factors. However in in his case outline says that the overall adjustment should be 70% in his favour and 30% in the wife’s, which again does not make sense. It is also unrealistic.
Talking about percentages does not give the full flavour of the dispute given the controversy about what should be included in the asset pool. On the wife’s figures, the asset pool is significantly greater. However, as I shall explain, the wife has failed to make out her case for add backs.
EVIDENCE RELIED UPON
The wife relied on the following documents:
(a)Further Amended Application filed 20 February 2024;
(b)Trial Affidavit of Ms Poulson filed 20 February 2024;
(c)Affidavit in reply of Ms Poulson filed 5 March 2024;
(d)Financial Statement filed 20 February 2024;
(e)Affidavit of X’s psychologist, Ms H filed 24 May 2023 who was not required for cross-examination; and
(f)Outline of Case filed 6 March 2024.
The husband relied on the following documents:
(a)Response to Initiating Application filed 27 February 2024;
(b)Trial Affidavit of Mr Gadal filed 27 February 2024;
(c)Financial Statement filed 27 February 2024;
(d)Affidavit of Mr K filed 5 March 2023 who was required for cross-examination; and
(e)Outline of Case filed 6 March 2024.
Before discussing the evidence and issues in dispute, I will discuss the applicable legal principles.
LEGAL PRINCIPLES
Part VIII of the Family Law Act 1975 (Cth) (“the Family Law Act”) governs property, spousal maintenance and maintenance agreement between married couples. The major provisions relating to marital property division are contained in ss79(1); 79(2); 79(4); & 75(2) of the Family Law Act.
Until the High Court decision in Stanford v Stanford (2012) 247 CLR 108, the position in respect of the process to be applied to the resolution of matrimonial property cases was said to be well settled with a preferred approach as set out by the Full Court in Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 78,386 [39].
The High Court considered the operation of s79 of the Family Law Act (which has almost identical terms to s90SM) in the matter of Stanford. In this case, the majority stated at [35]-[36] that:
It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. [Footnotes omitted]
The High Court found three fundamental propositions with respect to the application of s79, which can be summarised as follows:
Firstly, in order to ascertain whether it is just and equitable to make a property settlement order, it is necessary to identify the existing legal and equitable interests of the parties in the property. The High Court emphasised the word ‘existing’.
Secondly, although s79 gives the court a broad power to make property settlement orders it may not be exercised in an unprincipled fashion. There must be no assumption that the parties’ interests are or should be different to their existing interests.
Thirdly, when considering whether making a property settlement order is just and equitable the court must not assume that one or the other party has the right to a property adjustment order. The court must give separate consideration to s79(2) in addition to the matters referred to in s79(4).
In Stanford the High Court indicated that, in the vast majority of matrimonial property cases, the requirements of s79(2) will be readily satisfied, largely as a result of a consideration of the circumstances of the parties concerned, particularly the nature of their separation. Both parties seek property adjustment orders.
The High Court also pointed out that what is just and equitable is different in every case.
It is important to have regard to the myriad of contributions the parties have made over the whole of their long relationship and take a holistic approach to the assessment of the parties’ contributions.
In this case I must also consider the family violence the wife was subjected to which is relevant to the considerations that I must consider holistically amongst all the other contributions (see Benson & Drury [2020] FamCAFC 303).
ISSUES IN DISPUTE
There are a number of issues in dispute between the parties. The issues in dispute that I must determine include:
(f)The length of the relationship;
(g)The extent and/or existence of family violence and whether or not there should be an adjustment because of that;
(h)The financial contributions the parties made to the purchase of the land situate at J Street, Suburb C in 2017;
(i)Whether or not various assets are held for the husband beneficially;
(j)Whether the wife is successful in her application for addbacks;
(k)Whether the husband owes $120,000 in loans for the purchase of the Suburb F property;
(l)The weight to be given to the parties’ respective contributions; and
(m)The relevant s75(2) factors.
THE LENGTH OF THE RELATIONSHIP
The parties agree that they commenced living together in 2012 and married in 2012. They further agreed that they first separated in mid-2018. They disagree as to when they reconciled with the husband saying they reconciled in early 2020 and the wife saying they reconciled in mid-2021. The parties agree that they separated on a final basis in December 2021.
On the wife’s case, the relationship lasted approximately six years. On the husband’s case, the relationship lasted approximately seven years. The wife was a more reliable witness than the husband. I prefer her evidence on this point.
FAMILY VIOLENCE
The wife makes serious allegations of family violence in her trial affidavit. She describes a range of physical, emotional, and psychological abuse, and she describes the husband as controlling and that he would erupt with anger, swear at her and call her names. The wife says on or around late 2015, the husband choked her, pulled her hair, and kicked her in front of the children. She says she was too afraid to go to the police.
The wife also says that on numerous occasions the husband would lock her out of the house and would force her to eat separately from the family and threatened to withdraw financial support. She also says that he would abuse her oldest son G, including hitting him. The wife says he did not hit X, but that X witnessed the violence committed against her and G.
The wife says she grew up in a violent household and at the time did not understand that she did not have to put up with family violence.
She says that the violence was at its peak between 2015 to 2018 and that she approached social services and a woman’s organisation for assistance with the Department of Families, Fairness and Housing (‘DFFH’) becoming involved. G lived with the maternal grandmother for a period of time and they received counselling and family intervention assistance. The wife annexes a letter to her trial affidavit from the L Service dated late 2015. She says during this period they discussed reconciling and agreed to recommence building a home at J Street.
The wife says that in or around early 2020, the parties reached an agreement to try and reconcile and she started staying with the husband Friday nights as well as engaging in therapy. She says they moved back in with the husband in mid-2021.
The wife describes another incident of violence on or around late 2021. She says that they were arguing and the husband forced her to get out of the car and then was yelling at her and honking the horn telling her to get back in. She said there were occasions when she had to sleep with G on occasions during the Covid-19 lockdowns. She says the husband would lock her out of the house and she had to sleep in her car in front of the house.
The wife says that the family violence had a significant detrimental impact on G.
The wife says that after separation, the husband continued to commit family violence and monitor her and the children. The wife annexes several documents to her trial affidavit in support of her contentions about family violence, including a letter dated late 2015 from L Service indicating they had engaged with the wife since receiving a police report in early 2015 of family violence perpetrated by the husband and supporting the wife applying for emergency housing.
She also annexes a letter dated late 2022 from M Service, which includes a family violence risk assessment and summarises her experiences of family violence of various types. In addition, the wife annexes a letter from N Service dated late 2022, which refers to the family being referred to this service due to G displaying aggressive behaviour with the assessment referring that the family had been subjected to significant family violence.
After a contested intervention order hearing in mid-2023, the wife was granted a full family violence intervention order (‘FVIO’) expiring mid-2026, listing herself, G and X as protected persons. The husband applied for an FVIO against her. There is no interim order in place and the wife says that she is contesting the application.
The wife also annexes a letter from DFFH dated 26 October 2023, which refers to there being significant family violence dating back to 2015, and G suffering from post-traumatic stress disorder (‘PTSD’).
The wife was not challenged about family violence in cross-examination. I accept that the wife and the children were subjected to family violence perpetrated by the husband. Family violence takes many forms. When children live in a household with family violence, they are direct victims as well regardless of whether or not it is directed at them.
CONTRIBUTIONS
Neither party had assets of any significance at the commencement of the relationship. The wife says she and her family sponsored the husband’s visa and later the paternal grandmother’s. She does not refer to having to supply any form of bond. The husband denied receiving any advances from the wife. There is no evidence before me to support this claim.
The parties both worked full time until X was born in 2012. The wife stayed home caring for both children for the next three years. The wife says the husband was away much of the week working. She says he had little involvement with X’s care.
The wife says that the husband was frequently away for work and that when he was home, he provided little assistance with the children. The husband says that he was the primary income earner and she was the primary parent, but that he assisted with the care of the children when he was home. The husband does not contend that there should be an adjustment in his favour due to looking after a child of a previous relationship, nonetheless, there is scant evidence with respect to this.
Purchases and sales of properties at Suburb C
The parties bought a block of land at J Street, Suburb C in mid-2017 and intended to build a home. The wife says the land was purchased and the mortgage taken out in husband’s sole name and the deposit of $28,000 was paid from his account and from a loan he obtained from his employer. She says that she also contributed to the purchase as her income was being used to pay rent, bills and other family expenses. The husband says he had $8,000 in savings and borrowed $20,000 from his employer to pay the deposit. I accept the wife’s evidence that she made a contribution to the deposit in that manner. Presumably, the parties continued to pay for family expenses including loan repayments in the manner the wife referred to above.
The husband says he paid the expenses for the block of land whilst they were separated. He does not say what these amounted to. The wife had primary care for the children. When the block of land was sold, the parties received $90,000 in net proceeds and put that money towards the purchase of the property situate at B Street, Suburb C (‘B Street property’) in 2021. The wife says she also contributed $10,000 from her own personal savings. The husband acknowledges this. The parties took out a mortgage on the title and the mortgage was in their joint names. The wife says that the house came with display furniture and disputes that the husband borrowed money from a friend to pay for the furniture. After final separation, the wife says she paid expenses with respect to the B Street property including the mortgage whilst living with her parents and paying rent to them.
The parties then sold the B Street property in 2022 for $1,020,000. The purchaser was interested in buying the furniture that was in the home. The wife says that they agreed that they could purchase the furniture for $25,000 which was confirmed in the husband’s former solicitor’s letter dated 1 July 2022. However, the husband also insisted that from the proceeds of sale of the furniture, the husband’s friend Mr O be repaid in the sum of $8,000 that the husband claims to have borrowed in order to purchase the furniture. The wife says she was unaware of the debt and asked for a copy of the loan agreement and says her solicitors did not receive a response to that request. In the end, the husband paid the wife $12,500 and retained the furniture.
The purchaser requested to move into the property under licence paying $500 per week. Again, the husband would not agree unless his friend was paid $8,000. When cross-examined about the furniture, the husband was caught in a lie. The husband first said he denied ever knowing about the offer for $25,000 to purchase the furniture. However, when the wife’s Counsel put to the husband that his solicitors wrote to the wife about the offer, he said the agent was going to give it to the purchaser for the same price but that he wanted $25,000 in addition for the furniture, and $8,000 would have to be paid to his friend and the rest divided evenly for them.
The wife says she paid for all the utilities, mortgage papers and maintenance pending the sale.
Contributions to a child from a previous relationship
Since the parties separated, the wife has almost sole care of X. When the parties separated for the first time in mid-2018, the husband was seeing both children on occasion. However, he has not maintained a relationship with G. The husband did not claim that there should be a Robb & Robb [1994] FamCA 136 style adjustment with respect to G, he not being the husband’s child. I accept he would have made minor contributions, for example his working for the benefit of the family.
ASSETS IN DISPUTE
Property in Country P
The wife alleges that the husband has inherited a property in Country P from his late father which is valued at $60,000. Neither party has included this alleged property in their asset pool. During cross-examination, the husband denied the existence of this property. He also denied that any property that his mother owns in Country P is his. The wife’s “vehement belief” that the property is the husband’s is not evidence. There is insufficient evidence before me to enable me to make findings that the husband owns this property.
Motor Vehicle 3
The wife includes in her asset pool Motor Vehicle 3 worth an estimated $80,000 that she alleges is owned by the husband. She does not include any further information in her trial affidavit than this. The husband denies owning or ever owning a Motor Vehicle 3. The husband’s Counsel during cross-examination asked the wife where the evidence was of this vehicle to which she said the registration number was in the Q Authority subpoena. However, this evidence was not annexed to the wife’s trial affidavit or tendered during the trial. She said she found out about the vehicle in 2021 where it was seen in a photo given to the parties’ son at changeover.
The wife was further cross-examined regarding the value of the vehicle to which she said was an estimate using car value websites as she could not get a physical estimate as the husband is hiding the car. She said the husband always wanted this type of car and that he has a history of borrowing money from all types of people which can be seen in the numerous amounts of money not accounted for in his disclosure. The husband during cross-examination denied ever owning or being seen by the wife driving this vehicle.
There is insufficient evidence to support the wife’s contention that the husband owns this vehicle.
Motor Vehicle 4
The wife alleges that the husband owns Motor Vehicle 4. She believes that he has placed the car in another person’s name to defeat her property claim. In her asset pool she states the value of the vehicle is around $160,000, however, at paragraph 160 of her trial affidavit, she says it is valued at around $100,000. The husband says in his trial affidavit that Motor Vehicle 4 is owned by his friend Mr K and that he has borrowed it from his friend since early 2022 on the condition he pay for the running, maintenance, and registration costs including toll fees. He says he no longer has the vehicle, and it is back in Mr K’s possession. The wife says that the husband has failed to provide any financial disclosure in support that this vehicle is owned by his friend. She issued a subpoena which showed invoices the husband paid for services on the car during the period he was driving the car which were tendered and marked as Exhibit 1.
The wife during cross-examination was asked to confirm her estimated value of $160,000. She said that it was a high-performance car and that it had been modified. The wife’s Counsel asked the husband how he obtained the vehicle. He said his friend was upgrading the car and left it in his possession and that he could use it in the meantime but was unsure of how long he drove it for. The husband said he would use it on weekends and that his friend Mr K had it insured. He said he believed the car to be worth around $70,000 to $80,000. The husband said he paid for the service for a fault fixed in mid-2022 and the tolls for the vehicle but denied having paid for the service because the car was his.
Mr K was cross-examined about Motor Vehicle 4. He told the Court that the car was registered in his name and that it was not the husband’s car and that he bought it under finance and paid it off through his company. He confirmed the value of the car to be around $100,000 due to the upgrades. Mr K denied the husband ever giving him money for the vehicle as they were friends, but that he was required to pay the tolls and that he once paid for a service and replacement of a part. Mr K said that he let the husband drive the car for a little over a year but that he could borrow it whenever he wanted.
The evidence does not establish that the husband owns Motor Vehicle 4. The fact that he paid for car services and tolls during the year he drove the car is not enough to establish beneficial ownership of the car, particularly in light of Mr K’s evidence.
Motor Vehicle 5
The wife alleges the husband owns Motor Vehicle 5 worth an estimated value of $10,000. The husband says the only other vehicle he owns is a Motor Vehicle 2 and that he sold Motor Vehicle 5 in late 2023 for $3,000. He does not provide any documentary evidence to support this and did not include this in financial statement as he was obliged to do. The wife in cross-examination said that this was the car the husband had at the commencement of their relationship and that she did not believe he had sold it because she had not seen any documents to support that. In cross-examination, the husband again claimed to have sold the car. The wife’s Counsel pressed the husband that this was not included in his financial statement. The husband replied he sold it to a friend and that he did not remember. The husband’s evidence is unsatisfactory. If he sold this car, he should have disclosed it and provided evidence. He does not say whether it was market value or not. The wife estimates that the car is worth $10,000 but does not provide any evidence to support this figure. As I cannot be satisfied as to the value of the car, I will consider it pursuant to s75(2)(o) of the Family Law Act.
Motor Vehicle 6
The wife alleges the husband owns Motor Vehicle 6 with his new partner, Ms R worth an estimated $8,000. The husband says this vehicle is owned by Ms R. During cross-examination the wife said that the Q Authority subpoena showed the car being registered in Ms R’s name, but this was the car that the husband was bringing to changeovers and that he did not disclose he was in a de-facto relationship. The husband was not cross-examined about this vehicle. I cannot be satisfied on the basis of the evidence that this is the husband’s car.
Suburb F property
In her trial affidavit the wife says in or around late 2023, her solicitors conducted a title search in the husband’s name due to his failure to comply with obligations of disclosure. This title showed the property situate at E Street, Suburb F (‘Suburb F property’) was registered in the husband’s sole name and that it was purchased for $712,000 in mid-2023. The husband agrees that he purchased the Suburb F property and alleges to fund the purchase and related expenses he borrowed a total of $120,000 from a list of eight friends and acquaintances. However, he says there are no formal loan agreements in place but that he will need to pay the outstanding debts with any funds he receives from this property settlement. The wife denies the existence of these loans. He says this is a common cultural practice.
During cross-examination, the husband’s Counsel suggested that the husband had provided disclosure about this property to which the wife firmly denied and maintained that she only found out about this property after doing a title search. She said she believed the house was worth more than its purchase price of $712,000 as the house is in a fast-growing area in Victoria and does not accept that the husband borrowed the $71,000 for a deposit or a total of $120,000 between mid and late 2023. The wife disagrees that there is no equity in the property due to the money he alleges he borrowed.
When asked why he did not tell the wife about the purchase, the husband said that he thought as they were divorced, he did not think he needed to. He said the money for the purchase of the house came from other people who are not on affidavit and denied when asked if they continued to give him money. The wife’s Counsel drew the husband’s attention to his bank statements between July 2023 and December 2023 that showed money coming into his account in excess of the deposit. The husband said the money in part was used for the settlement and the other money that keeps coming and going is because “we” keep helping each other. He denied it was his money that was being held by friends. His Commonwealth Bank statements for July to December 2023 were tendered and marked as Exhibit 2.
The bank statements for the month of July 2023 show a total of $108,000 being deposited from other people into the husband’s account. However, the husband annexes to his trial affidavit online screenshots of payments he has received in support of the $120,000 he owes to multiple people. This includes two payments in June 2023 for $20,000 from a Mr T and the husband’s wife. The bank statements do not go back to June 2023. If these are to be included this brings the total of money transferred to the husband up until the end of July 2023 to $148,000 and $180,000 by December 2023. The list of names of people the husband alleges he owes money to in paragraph 60 of his trial affidavit are not all represented in the transactions in his bank statements that have been disclosed. The husband transfers various sums between his bank accounts which makes it more confusing. His other bank account statements are not in evidence. As he did not produce bank statements for all of his accounts and only produced these statements at the trial, the wife was deprived of making further enquiries to try and make sense of his financial circumstances.
The wife points out that the husband relies on these transactions and that there is no evidence of these purported loans. There is no evidence with respect to the current value of the property, and it is significant to note that the only reason the wife found out about the existence of this property was because her solicitor conducted a title search. The fact that the husband acquired this property after separation does not mean it should be ignored.
I am not satisfied that the husband has a legal obligation to repay the sums advanced to him. The husband does not provide any detail as to the circumstances surrounding these advances and any conversations had with individuals. All the husband does is provide screenshots of money being transferred to him. Whilst I accept the husband was unrepresented for a significant period, that does not alleviate his disclosure obligations. The wife annexes some of the disclosure requests her solicitors sent to him to her trial affidavit.
THE PARTIES’ EXISTING LEGAL AND EQUITABLE INTERESTS
Proceeds of sale of the B Street property
The net proceeds of sale of the B Street property is held by the wife’s solicitors. I do not know if it is in an interest bearing account or not. The parties say the balance is $262,684.70.
Motor Vehicle 7
The wife alleges that Motor Vehicle 7 is the car she drove during the relationship and that it is registered in the husband’s friend’s sole name, but that the husband has paid all the monies for a loan for this vehicle which belongs to him and is refusing to transfer the vehicle into his name to avoid the vehicle being included in the property pool. The husband denies ever owning this vehicle. The wife alleges this vehicle is worth an estimated $6,000. During cross-examination she said she only found out it was not in her name when she did a search which showed a loan was paid out in the husband’s name with the car being registered to Mr T, one of his friends. The wife says that she paid the registration and maintenance for the car and that after separation, the husband placed a lot of pressure on her to return the car to his friend which was returned in late 2023. It is difficult to accept the husband’s evidence that a friend was content for the husband to have possession of a car for 13 years for no benefit, especially given the timing of the friend wanting the car back after the parties separated and it being the car the wife drove for years. It is more likely that the husband has benefited financially from this arrangement and has not disclosed this.
The husband says that the wife used that car because it used to be his, but that he did not pay for it and that it was always his friend Mr T’s car. He confirmed it was in his possession for 13 years and the wife paid the registration because she was using it. The husband says that Mr T was a childhood friend and “this is what we do”. He denied ever paying a loan for this car. I do not accept the husband’s evidence about this. It defies belief that a friend would lend a car for 13 years for no benefit. The husband does not attribute a value to it because he says it is not his. This is a matter I will take into account pursuant to s75(2)(o) of the Family Law Act.
Motor Vehicle 2 and Motor Vehicle 1
Both parties agree that Motor Vehicle 2 is owned by the husband, but the value is disputed. The wife estimates the value of the vehicle is $10,000 whereas the husband estimates the value to be $2,000. In his financial statements he ascribes a value of $3,000. Again, the evidence is unsatisfactory. Neither party gives any indication as to how they arrived at their figures.
The wife bought Motor Vehicle 1 in 2023. She attributes the value of $49,000 which is subject to finance of $43,551. The husband does not dispute these figures.
I indicated during the course of the trial as the parties each have a motor vehicle, and that the value of the husband’s is unclear, rather than including the cars in the balance sheet, I would simply order that each party keep their vehicles to the exclusion of the other. I will make that order.
Superannuation
The only other assets the parties have are their respective superannuation entitlements. The wife says that she had to access her superannuation on hardship grounds during Covid-19 and only has $5,000 remaining in superannuation. The husband has superannuation of $51,900. The wife attributed his super as having a value of $90,000 but was clear when she was cross-examined that she had no basis for this figure and that it was a guess.
Neither party seeks a superannuation splitting order.
Given the findings I have made above, the only asset available for division is the net proceeds of sale of the B Street property. The wife does not seek that the husband’s property purchased postseparation be sold, but both parties include it on their balance sheets with the purchase price being $712,000 subject to a mortgage of $637,144. If one ignores the advances that the husband received, which he says are required to be repaid, the equity remaining is $72,856. This does not allow for an increase in value in property. I am satisfied that there should be an adjustment of 5% in the wife’s favour for contributions. I cannot be certain about the value of the Suburb F property, but I am satisfied that the husband has some equity in the property. He has been able to re-enter the property market while the wife is renting with G and X.
THE HUSBAND’S CREDIBILITY AND NON-DISCLOSURE
The husband was not an impressive witness. He avoided answering questions directly and his answers were inconsistent. In one instance he lied.
The husband objected to a subpoena the wife issued to S Authority but did not attend the objection hearing. During cross-examination, he claimed to have no memory of lodging the objection until he was shown the objection he signed and lodged. The husband claimed he was in Country P and his internet was not working when the hearing took place.
I am also satisfied that the husband failed to comply with his disclosure obligations. He did not respond to multiple requests for disclosure documents from the wife’s solicitor. The husband claimed that he did at the beginning of the proceedings. I do not accept that. It would have been unnecessary for the wife to incur costs of her solicitors making those requests if they already had the documents. It also ignores the fact that the obligation to make full and frank disclosure is ongoing. Significantly, the husband only produced six months of bank statements at the trial.
On 1 February 2023, the parties were ordered to pay for half of X’s counselling fees. The wife had to pay in the first instance as the husband did not pay his share. He claimed he did not have the funds and said it had to come from his share of the funds held on trust which was $2,387. It is clear given the husband’s income and what his bank statements show that he could afford to pay this, particularly given he was not paying legal fees. It was simply not a priority.
SECTION 75(2) FACTORS
The husband concedes that there should be a s75(2) adjustment in the wife’s favour but says it should be smaller than the adjustment the wife seeks. There are several factors under s75(2) that favour an adjustment to the wife including her health, her care of X and G, the need to protect a party who wishes to continue the role of parent, the child support the husband pays, the fact that the husband has re-partnered, the small size of the pool, and the matters I previously identified above. This also includes the husband having the benefit of the sale of Motor Vehicle 5 and his unsatisfactory disclosure.
The husband pays child support currently at $136 per month. This appears to be very low given his income is $110,000 per annum. The wife says she has asked Services Australia to collect it on her behalf as otherwise the husband is late making payments. Before the husband went to Country P for six weeks in order to re-marry and visit family, he contacted Services Australia and told them that he would not have an income which had the effect of dramatically reducing his child support payments. The husband claims that he was unsuccessful in applying for annual leave and therefore took unpaid leave. When asked why he did not continue to support X financially whilst he was away, he said he paid whatever Services Australia told him to. He claims he did not have money and that he obtained the money for the wedding from an uncle. He does not provide any evidence with respect to this period. The husband ought to have known that contacting Services Australia would have the effect of significantly reducing his child support payments. This is not to the husband’s credit and reflects a lack of responsibility with respect to his obligations to provide financial support for his daughter. Her expenses did not suddenly reduce because he went away.
The husband does not spend overnight time with X. This means the wife has the overwhelming care and responsibility for X. The parenting consent orders provide for X to spend up to three nights with the husband during school holidays, subject to X’s wishes.
The wife has various health issues that she outlines in her trial affidavit. She will be undergoing surgery in early 2024. The wife refers to periods she has had to have off work due to her health. The wife was not challenged about her health.
In early 2024, the wife started casual work as a support worker. The wife’s financial statement plainly contains errors as no amount is given for her weekly expenses for things such as food and clothing. The wife discloses in her financial statement that she recently commenced casual work. She says that her income varies from week to week depending on the hours. The value she put in her financial statement was the week she worked when she saw the financial statement and was not an average. I accept that that amount was a high point and is not reflective of what she earns each week. The wife is also on a probationary period with her employer. Whilst the wife has an earning capacity, she also has several chronic health conditions which have from time to time meant that she has had to stop working. She is scheduled to undergo surgery and no doubt that will result in a period where she cannot work or works reduced hours.
In his case outline, the husband says his wife earns $1,000 a week. He does not refer to that in his evidence and when cross-examined about this claimed that she stopped work to study. The income and resources of the husband’s current wife are relevant because he has a resource that the wife does not have having not re-partnered. The husband at first denied being in a de facto relationship with Ms R but then in his trial affidavit says he re-married in 2024 in Country P. He says they started their relationship in mid-2022 but did not live together prior to marrying.
The husband’s disclosure in this regard is completely unsatisfactory. The husband is in a stronger financial position than the wife by reason of his income and earning capacity of his wife. Whilst the wife has some income earning capacity, it is not as great as the husband and in addition to her health conditions, she has sole care of G who has been diagnosed with PTSD, autism spectrum disorder (‘ASD’), and has challenging behaviours which the wife must manage. There is a National Disability Insurance Scheme application annexed to her trial affidavit. It is unclear as to whether that application has been processed and accepted. The wife also has almost sole care of X. I am of the view that it is appropriate that there is an adjustment in her favour for this. As the obligations for parenting children under the age of 18, the relevant factors to take into account is under s75(2) of the Family Law Act.
There must be a significant adjustment for s75(2) factors in the wife’s favour for several reasons. The wife has a number of chronic health issues that she was not challenged about. She has had to take time off work due to these health issues. She has recently commenced casual work but her income is variable. She has the care of G who is 15 but has been diagnosed with PTSD and ASD and requires additional support from the mother. She also has the majority of care responsibilities for X. Section 75(2)(l) recognises the importance of protecting the role of a parent. X is 11. The husband has re-partnered. His household has two incomes or at least the capacity for two incomes. The husband also owns the Suburb F property which has some equity in it. The husband also has significantly more superannuation than the wife. As I have mentioned above, there also needs to be an adjustment under s75(2)(o) due to the lack of disclosure. Another relevant factor is the modest nature of the known pool. The wife’s cost notice filed 8 March 2024 states she has incurred $96,186.54 in legal fees to date excluding the expected trial fees which was estimated at a further $30,400.
I find there should be a further adjustment of 25% in the wife’s favour for these matters.
CONCLUSION
Whilst the wife has not been able to establish that the husband has beneficial ownership or various assets, the husband has failed to provide disclosure and was an unreliable witness. I do not accept the submission made by his Counsel in closing that all of his wealth was tied up in the net proceeds of sale of the B Street property.
Considering the parties’ contributions holistically, including family violence, I am satisfied that there should be an adjustment in the wife’s favour, on the basis of her contributions being greater than the husband’s. Whilst the husband made greater financial contributions, the wife also made financial contributions and in addition provided most of the care for X. I accept that the husband was away working and when home provided little assistance. Additionally, I find her contributions were made more arduous due to the family violence she and the children experienced.
In cases such as this, it is artificial to speak in percentage terms. I am obliged to look at the reality of the situation and the practical effect of the orders. Assuming for the purpose of this exercise that the assets to divide between the parties are their respective superannuation entitlements of $5,000 and $51,900, and the net proceeds of sale of the B Street Property of $262,684.70, if the wife keeps her superannuation and the net proceeds of sale, she receives approximately 84%. However, if the equity in the Suburb F property of $72,856 is included, then she receives approximately 68%.
In all of the circumstances of the case, doing the best I can on the state of the evidence, I find it is just and equitable for the wife to receive the net proceeds of sale from the B Street property. She will also retain her superannuation and her car subject to a loan. The husband will keep his car, his superannuation, the Suburb F property subject to a mortgage and any proceeds he received from the sale of Motor Vehicle 5. The parties will otherwise retain all other property in their possession.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Associate:
Dated: 28 March 2024
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