Priede & Gagliardi
[2024] FedCFamC1F 599
•9 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Priede & Gagliardi [2024] FedCFamC1F 599
File number: SYC 2866 of 2022 Judgment of: CHRISTIE J Date of judgment: 9 September 2024 Catchwords: FAMILY LAW – PROPERTY SETTLEMENT – Short relationship – Where evidence does not establish existence of liabilities – Where de facto wife made significant initial financial contributions – Where de facto wife made significant financial and non-financial contributions after separation. Legislation: Family Law Act 1975 (Cth) ss 90SF(3), 90SM(3), 90ST, 106A Cases cited: Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557
Jones v Dunkel (1959) 101 CLR 298
JD Heydon, Cross on Evidence (LexisNexis, 14th edition, 2024)
Division: Division 1 First Instance Number of paragraphs: 72 Date of hearing: 4 September 2024 Place: Sydney Counsel for the Applicant: Mr Elachkar Solicitor for the Applicant: Ayoub Lawyers Pty Ltd Counsel for the Respondent: Mr Liedermann Solicitor for the Respondent: Chidiac Lawyers Pty Ltd ORDERS
SYC 2866 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PRIEDE
Applicant
AND: MR GAGLIARDI
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
9 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.Within 60 days of the date of these orders the respondent do all such things and sign all necessary documents to transfer to the applicant all his right, title and interest in the property situated at B Street, Suburb C, New South Wales , being the whole of the land comprised of Lot … in Deposited Plan … (“the Suburb C property”), and simultaneously, the applicant discharge and refinance into her sole name the existing mortgage secured against the Suburb C property.
2.Within 14 days of the date of these orders, the Applicant shall do all things and sign all necessary documents to list the property located at D Street, Suburb E, New South Wales, being the whole of the land comprised of Lot … in Strata Plan … (“the Suburb E Property”), with a real estate agent for sale by auction and:
(a)If not otherwise agreed, the agent nominate the reserve price;
(b)The auctioneer be selected by the agent; and
(c)The net proceeds of the sale be disbursed as follows:
(i)Legal expenses of the sale;
(ii)Payment of any money due and owing to the mortgagee(s);
(iii)46 per cent of the balance then remaining to the respondent; and
(iv)The balance after (i) – (iii) above to the applicant.
3.Pending the transfer or refinance of the Suburb C property to the applicant, neither party be permitted to encumber the Suburb C property without the written consent of the other party.
4.The applicant and respondent do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.
5.Any money standing to the credit of the parties in any bank account are to be retained by the party in whose name the account appears.
6.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.
7.Other than as otherwise set out in these orders, the parties have the sole right, title and interest in any other property and superannuation which is at the date hereof in their possession, title or name and they shall be solely liable for and indemnify the other against any personal liabilities.
8.In the event that either party refuses or neglects to execute any deed or instrument within three days of being requested to do so in writing, the registrar of the Court be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) (“the Act”) to execute such deed or instrument in the name of such party and do all acts and things necessary to give operation to the said deed or instrument.
9.Pursuant to s 90ST of the Act the parties intend these orders shall, as far as practicable, determine the financial relationship between them and avoid future proceedings between them.
10.For the purpose of Order 8, the defaulting party shall be liable for all costs associated with his or her failure to execute the necessary document to give effect to these orders and shall pay such costs within 14 days of when and as they fall due and payable.
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 Priede & Gagliardi has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
INTRODUCTION
The applicant de facto wife Ms Priede (“the wife”) and respondent de facto husband Mr Gagliardi (“the husband”) seek property adjustment orders following the breakdown of their marriage.
Final parenting orders were made by a Judge of Division 2 of the Federal Circuit and Family Court of Australia on 2 September 2024. The matter was transferred to this Court for hearing of the property aspect.
BACKGROUND
The parties are both 33 years old.
The wife migrated to Australia in 1999. After completing her Higher School Certificate in 2009 she attended university, secured employment and later graduated with a tertiary qualification. The husband worked as a tradesperson prior to an accident in 2013, after which he received a lump sum compensation award. In his application he describes his employment as a tradesperson.
The parties married in a religious ceremony in 2015 after which they commenced cohabitation and separated on 2 May 2020. Their marriage was not registered.
There are two children of the marriage, X (born 2015, 8 years of age) and Y (born 2020, 4 years of age). The final parenting orders provide for the wife to have sole parental responsibility, both children to live with the wife, and both children to spend supervised time with the husband on alternate weekends.
In the wife’s Case Outline filed 30 August 2024 and the husband’s Case Summary filed 30 August 2024, both parties produced their respective balance sheets which were largely the same, bar two disputed items:
(1)The value of the husband’s motor vehicle (Motor Vehicle 1 (item 9 below) with the wife’s estimate, in the absence of valuation, being $15,000 in accordance with the husband’s Financial Statement filed 30 May 2022; and
(2)The loans totalling $190,000 (items 13 and 14 below) that the husband alleges are owed to his mother Ms F and his friend Mr G, about which the wife said she had no knowledge.
The balance sheet representing the areas of agreement and dispute is reproduced below:
Description Ownership Applicant’s value Respondent’s value ASSETS 1 B Street, Suburb C Joint $950,000 $950,000 2 D Street, Suburb E Applicant $500,000 $500,000 3 Commonwealth Bank of Australia #...22 Applicant $500 $500 4 Commonwealth Bank of Australia #...81 Applicant $2.00 $2.00 5 Household contents Applicant $5000 $5000 6 Commonwealth Bank of Australia #...13 Respondent $374 $374 7 Commonwealth Bank of Australia #...99 Respondent NIL NIL 8 Cryptocurrency Respondent $2500 $2500 9 Motor Vehicle 1 Respondent $15,000 $10,000 Assets subtotal $1,473,376 $1,468,376 LIABILITIES 10 Mortgage for B Street, Suburb C Joint $489,400 $489,400 11 Mortgage for D Street, Suburb E Applicant $346,840 $346,840 12 CBA Credit Card #...72 Applicant $10,465 $10,465 13 Personal Loan from Mr G Respondent NIL $30,000 14 Personal Loan from Ms F Respondent NIL $160,000 Liabilities subtotal $846,705 $1,036,705 SUPERANNUATION Name of Fund Type of Interest Member Applicant’s value Respondent’s value 15 Superannuation Fund 1 Accumulation Applicant $99,456 $99,456 16 Superannuation Fund 2 Accumulation Respondent $0.00 $0.00 Superannuation subtotal $99,456 $99,456 TOTAL (assets – liabilities) $626,671 $431,671 TOTAL (assets – liabilities + superannuation) $726,127 $531,127
At the hearing the parties agreed that I should include the husband’s Motor Vehicle 1 at a value of $12,500.
IS IT JUST AND EQUITABLE TO MAKE PROPERTY SETTLEMENT ORDERS
Section 90SM of the Family Law Act1975 (Cth) (“the Act”) provides:
(3)The 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.
None of the parties argued that it would not be just and equitable to make property adjustment orders. In light of the parties’ separation, and cessation of common use of the property, their current legal and equitable rights are no longer apt and so a determination is appropriate.
CONSIDERATION
Before I consider the parties’ respective cases concerning assessment of financial and non‑financial contributions and matters arising under s 90SF(3) of the Act it is necessary to make findings about the net pool of assets available to the parties for adjustment. As noted, the parties are in issue about two matters which relate to the husband’s two personal loans recorded among his liabilities:
(a)Mr G $30,000; and
(b)Ms F $160,000 (“the husband’s mother”).
Neither Mr G nor Ms F have sworn an affidavit in the husband’s case.
The husband says that the funds were provided to him in cash and applied to work undertaken at the Suburb C property. That property was purchased by the parties in mid-2019.
In support of the contention that his mother loaned him funds, the husband annexes bank account statements for two accounts (Progress Saver ending #...08 and Access Advantage ending #...79) in the name of his mother and Mr H.
At the conclusion of the proceedings, counsel who appeared on behalf of the husband said that the annexed documents evidenced amounts totalling $161,071 being predominantly cash withdrawals from those accounts.
In cross-examination, the wife was taken to various transactions on the account statement of Ms F’s Access Advantage account ending #...79. The wife readily accepted that all the payments she was taken to which were made to J Company were payments for the Suburb C property.
The wife was taken to other amounts which appeared on the face to relate to furniture, lighting, rugs and curtains. She indicated that she could not be confident that these related to the Suburb C property in circumstances where she was not involved and she understood her in‑laws would have purchased items for their own properties during the same period. The husband gave no evidence on this topic. I cannot make a finding that those items were for the parties.
I accept Ms F made money available to the parties to purchase vanities and tiles. This is a contribution on the husband’s behalf which I take into account.
It is not possible for me to find that the husband’s mother provided cash to the parties and certainly not to the extent asserted by the husband. The husband’s affidavit evidence is not consistent with the bank statements insofar as his affidavit filed 30 May 2022 said “[m]y mother withdrew $160,000.00 cash and gave it to me to fund the renovations”: at [24]. He did not give evidence of small cash sums provided over a period of months. His mother gave no evidence. The bank statements only establish that one of the husband’s parents withdrew funds from their bank accounts. The documents say nothing about how those funds were applied.
The failure by the husband to call his mother is significant. It is plain from the evidence that the husband’s mother lives in Sydney. Presumably she or Mr H provided the bank statements which are annexed to the husband’s affidavit. The affidavit material indicates a close relationship between the husband and his mother. There is no explanation given by the husband for the absence of evidence from his mother. I am able to conclude that her evidence would not have assisted the husband’s case: see Jones v Dunkel (1959) 101 CLR 298 at 308, 312 and 320; Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557 at 582; and JD Heydon, Cross on Evidence (LexisNexis, 14th edition, 2024) at 39.
Apart from the husband’s affidavit which refers to cash from Mr G in the sum of $50,000 there is no other supporting evidence to ground the conclusion that Mr G loaned money to the husband. The husband claims an outstanding debt of $30,000. It is difficult to understand how the husband may have had funds available to him sufficient to repay $20,000 on the basis of the husband’s evidence alone. There is no loan agreement, no deposit to the husband’s bank account evidenced by a statement and no evidence from the purported lender. There is no explanation provided by the husband for his failure to call evidence from Mr G. I am able to conclude that his evidence would also not have assisted the husband’s case: Jones v Dunkel at 308, 312 and 320.
I conclude that neither in respect of the purported loan from his mother, Ms F or his friend Mr G, has the husband discharged the onus to demonstrate, through admissible evidence, the existence of a loan and accordingly I do not propose to take into account either sum as a liability.
In circumstances where the evidence also falls short of establishing that the funds were advanced, I am also unable to take them into account as a contribution.
CONTRIBUTIONS
At the commencement of the parties’ relationship the wife owned two properties. The wife purchased a property at K Street, Suburb L NSW (“the Suburb L property”) in late 2011. The purchase price of just under $400,000 was funded by the wife’s savings which were applied to the deposit (just under $40,000), money from the wife’s brother (over $50,000) and a mortgage to the Commonwealth Bank ($295,000). The wife owned the Suburb L property at the commencement of cohabitation.
In late 2014 the wife purchased a second property D Street, Suburb E NSW (“the Suburb E property”). The wife met the deposit (over $45,000) from her savings and the remainder was funded by a mortgage. The parties commenced cohabitation approximately the same time as the settlement of the sale of the Suburb E property.
The husband’s affidavit contended that he had contributed to the purchase of the Suburb E property. As discussed below this evidence could not be accurate. In a similar vein the husband said that the parties lived with his parents for a short amount of time so that they could save money to purchase a house. In fact, the husband accepted in cross-examination that the parties commenced to reside in the Suburb E property, which the wife had purchased prior to their marriage ceremony, a few weeks after the ceremony.
The husband received a payment by way of compensation, following an accident. That payment was, net of legal fees, approximately $60,000. Those funds were deposited in the husband’s bank account in late 2015. On 1 October 2015 the husband withdrew $50,000 from that bank account and those funds were placed in the wife’s mortgage offset account.
It follows that they were not, as the husband contended, contributed to the purchase price for the property – nor does the bank statement annexed by the husband demonstrate his assertion that he withdrew money from his bank account to apply to the purchase in late 2015. I find that the funds remained in the mortgage offset facility for about 3 months before being returned to the husband’s account on 20 December 2015 in two payments of $20,000 and $36,000. The husband then returned them to the mortgage offset in three payments between 26 December and 30 December 2015 of $20,000, $20,000 and $10,000. The wife’s evidence is that those funds then remained in the redraw facility for about 9 months when she returned $40,000 to the husband in two payments of $20,000 on 12 September and 7 October 2016.
The husband’s evidence about whether he received the two payments of $20,000 from the wife was unsatisfactory. The husband in oral evidence said he only received the two payments of $20,000 once. That is consistent with the wife’s case. The wife was cross-examined about the fact that her evidence only demonstrated that the monies had been withdrawn from the mortgage redraw account; not that they had been paid to the husband. That proposition is not the same as the contention that they were not, in fact, paid to the husband. The husband did not put into evidence his bank account statement(s) for the period September/October 2016 to demonstrate the funds were not received by him. He says he was unable to access the statements. No application was made for a subpoena to issue. The wife’s evidence was straight‑forward and accorded with all available collateral documents. I accept that when she says the monies she redrew were paid to the husband that her evidence is accurate. It would make little sense for her to make such an assertion in circumstances where the documents, if obtained, would indicate otherwise.
In addition to her ownership of the properties at Suburb E and Suburb L, the wife had significant savings at the time of cohabitation ($180,000). The wife was not challenged about this evidence. Given her employment 6 days per week and her additional part-time employment, and the generosity of her mother in allowing the wife to save her salary, the evidence the wife gives about her savings is inherently plausible. The wife also owned some jewellery, furniture, a car, superannuation entitlements and some shares. When regard is had to the totality of her assets and superannuation at cohabitation, it is plain how significant this initial financial contribution is in the context of the parties’ short relationship.
At the time of cohabitation, the husband owned a car. The husband gave evidence that he had savings at the time the parties commenced to live together. I cannot find that the husband had any substantial savings in January 2015 given he had been unemployed for the previous two years, his affidavit indicated that his income prior to unemployment was about $600 per week and given the wife’s unchallenged evidence that she had been providing the husband with money prior to cohabitation.
The parties transferred funds between them during the relationship. The wife set out a table in her affidavit said to represent transfers between the parties following the husband’s receipt of his compensation monies (some of which have been discussed above). That table is set out below:
DATE FROM TO AMOUNT 01/10/2015 Mr Gagliardi Me $50,000 03/10/2015 Mr Gagliardi Me $2,000 04/10/2015 Mr Gagliardi Me $1,000 09/10/2015 Mr Gagliardi Me $2,000 29/10/2015 Mr Gagliardi Me $2,000 25/11/2015 Mr Gagliardi Me $2,000 26/11/2015 Mr Gagliardi Me $1,000 01/12/2015 Mr Gagliardi Me $1,000 10/12/2015 Mr Gagliardi Me $1,000 16/12/2015 Mr Gagliardi Me $2,000 20/12/2015 Mr Gagliardi Ali $56,000 26/12/2015 Mr Gagliardi Me $20,000 29/12/2015 Mr Gagliardi Me $20,000 30/12/2015 Mr Gagliardi Me $10,000 10/09/2016 Me Mr Gagliardi $20,000 07/10/2016 Me Mr Gagliardi $20,000
(Wife’s affidavit filed 19 July 2024)
The effect of those transactions was that in the period 1 October 2015 to 7 October 2016 the husband paid into the wife’s account $112,200 and the wife paid into the husband’s account $96,000. The net effect is that the evidence has established that (insofar as the above transactions are concerned) the husband contributed net $16,200 to the wife’s bank account.
Given the wife’s unchallenged evidence about her application of funds from the husband to his expenses, and separately, her payment of expenses for the husband, for example on holidays taken by him and his friends, I cannot place too much weight on this financial contribution.
In addition to those sums set out in the above table, the wife was taken in cross-examination to further amounts withdrawn from the husband’s account in cash or transferred to the wife as set out in the bank statements which she agreed were examples of the husband transferring or providing funds to the wife. They are as follows:
(a)1 October 2016: $5,000;
(b)14 October 2016: $200; and
(c)1 November 2016: $157.06.
I accept the evidence that the husband transferred the amounts which the bank statements demonstrate to the wife.
The husband accepts he made no direct contributions to the repayment of either mortgage. He says that the transfers into the wife’s bank account were able to be applied by her to the mortgage and his larger lump sums offset the interest on the outstanding borrowings. I accept his evidence.
The wife was employed throughout the relationship (except for two periods of maternity leave in which she received some maternity leave payments). The husband’s employment during the parties’ cohabitation is less clear. In his affidavit the husband says he began working in a trade in 2016 making approximately $1,000 per week. On 29 August 2024 the husband swore a Financial Statement which he relied on in these proceedings. He said his employer was M Group for whom he had worked for just over 8 years. That suggests that he commenced employment for M Group in mid-2016. His Financial Statement deposes to current income from that source of $600 per week. He says his work is part-time. The wife says that he also represented to her that he had received Centrelink payments during the relationship. It is not possible to ascertain the extent of the husband’s income either now or in the past because he said he does not declare it to the Australian Taxation Office and has not received superannuation. The wife says that he contributed to household expenses by deposit to her bank account on a sporadic basis. That is consistent with the small number of bank statements in evidence.
In early 2019 the wife sold the Suburb L property. In early 2019 she received net proceeds of $137,277.40. Those funds were applied to the deposit (just under $70,000) and stamp duty ($25,660) for purchase of a property in joint names: B Street, Suburb C (“the Suburb C property”). The remainder of the purchase price ($670,000) was funded by a mortgage. The husband’s affidavits claimed he did not know how the proceeds of sale of the Suburb L property were applied but he conceded in cross-examination that they had funded the Suburb C purchase.
The wife gave evidence that she had made the following renovations to the Suburb C property:
a.Paying to install the bathroom vanities and tiles;
b.Paying to have the front and rear lawn mowed on a regular basis;
c.Paid for the construction of [outdoor structures];
d.Paid for the new dividing fence with neighbours;
e.Paid for all the gyprock for the extension of the property;
f.Paid the electrician to do all the new wiring to the property;
g.Paid for the installation of the doors and frames inside;
h.Paid for the blinds and their installation inside the house;
i.Paid to have ducted air conditioning installed; and
j.Paid for a built-in wardrobe for [X’s] room.
(Wife’s affidavit filed 19 July 2024)
The wife was not cross-examined about this evidence.
The wife gave evidence that the husband’s mother had offered to fund the renovations to the Suburb C property, but the wife had declined. The wife accepted that the husband’s mother paid for vanities and floor tiles. As discussed above, the husband’s mother did not give evidence.
It is plain that the wife made the overwhelming financial contribution both direct and indirect to the acquisition, conservation and improvement of the property of the parties. The husband’s contributions in that regard were modest.
Non-financial contributions
I accept that the wife carried out the majority of the tasks associated with caring for the children during the parties’ relationship. In cross-examination, the husband seemed to make a tacit concession that this occurred because it was expected of her as “the mother”. This aligned with the wife’s affidavit evidence. In addition to that there were two periods prior to the final separation when the parties were separated where the wife undertook almost sole care of the children and the parties’ property. I accept that the husband did spend time with the children during the relationship including providing care for them if the wife was absent from the home.
The husband says he performed work at the Suburb E property. The wife disagrees and questions his assertion of garden maintenance given the property was a unit which was tenanted. I accept the wife’s evidence over that of the husband where the parties’ account differs both because the wife’s evidence aligns with the objective evidence and also because the husband’s evidence has been demonstrated through the availability of objective evidence to be unreliable.
Post-separation contributions
The wife has cared for the children from the time of the parties’ separation to the time of trial without assistance from the husband.
The husband has not paid child support for the children in accordance with the income he told the court he has earned. At the conclusion of the evidence the highest that the evidence would allow me to find is that he paid the wife between $18 and 29 per week by way of child support (as canvassed below, it may be less than this).
The wife has supported both the mortgages – albeit I accept that she has received the rental income. This contribution is not insignificant. The wife has available to her from all sources $2,577 per week from which she has been obliged to meet a weekly mortgage payment of $1,807.
The wife also gave unchallenged evidence about expenditure on improvements and maintenance for the Suburb C property after separation.
The wife has had a shortfall of expenses over income in the post-separation period and in those circumstances her disposal of shares, her acquisition of a credit card debt and her sale of a motor vehicle are also explicable and would not warrant any adjustment in the husband’s favour.
There was no cross-examination and no submissions about the relevance or otherwise of the wife’s evidence about family violence and accordingly it is not a matter to which I have had regard when reaching my conclusions about what orders would be just and equitable.
While it is ordinarily the position that the assessment of contribution must be undertaken in a holistic fashion, the considerable initial contributions and significant financial and non- financial contributions of the wife after separation must be given appropriate weight in a relationship of only 5 years (during which there were periods of separation). I accept the submission that, but for the wife’s initial contributions, the asset pool available for distribution between the parties would be negligible. I take into account the fact that the husband undertook some paid work during the relationship and made some contributions to the mortgage offset account. His contributions, financial and non-financial, taken at their highest could not entitle him to more than 20 per cent of the asset pool on a contribution-based analysis.
Section 90SF(3) considerations
The wife is employed by N Company. She gave evidence that she earns a salary of approximately $99,996 per annum.
The husband says he is employed part-time as a tradesperson earning $600 per week.
In some circumstances it may be appropriate to make an adjustment to the parties’ contribution‑based entitlements to take into account the apparent income disparity. A number of factors mitigate against that in this case. The first is the lack of transparency about the husband’s financial affairs. The second is the overwhelming financial and non-financial burden the wife will carry for the children’s care and support as discussed below.
The wife’s Financial Statement says that she receives about $30 per week in child support from the husband. Her affidavit said $17.10 per fortnight. In cross-examination the husband accepted that he paid $18 per week by way of child support for the parties’ two children. On any view I can safely conclude that the financial support which the wife receives from the husband is modest, and accordingly, she has the primary role in their financial support. Further, this has been the position from separation until the time of trial and on that basis, I can infer that this position is unlikely to change.
I must also take into consideration, the fact that the wife will also have the almost sole responsibility for their care pursuant to the final parenting orders.
Neither party sought a superannuation splitting order. The husband deposes to having a superannuation account with a NIL value. His affidavit says that he has never held employment which paid superannuation entitlements. There is no explanation in the material as to why he has a superannuation account.
The wife has a superannuation entitlement which is significant in the pool. It is necessary for me to have regard to the nature and characteristics of this particular type of asset in this case for two reasons: firstly because the husband does not have superannuation and does not seek a splitting order then it is only the wife who will retain an asset with these characteristics and secondly because the wife, given her age, will have no capacity to access this asset until she meets the conditions of release many decades in the future.
The wife’s affidavit material says that the husband has another dependent child. The husband’s evidence does not refer to this fact nor does it suggest he meets any expenses for this child directly or by way of child support. In any event no submissions were made in his case about this factor.
I find that it is appropriate to make a further adjustment to the contribution based entitlements of the parties to take into account the above matters which arise by operation of s 90SF(3) of the Act in favour of the wife. While in the exercise of my discretion I formed the view that the further adjustment ought be 10 per cent – this would entitle the husband to less than the amount in the wife’s application and accordingly I will make a further adjustment of 8 per cent such that the wife receive about 88 per cent of the net pool of assets and superannuation.
FORM OF ORDERS
The parties are the joint legal owners of the Suburb C property ($950,000) which is subject to a mortgage in the sum of $489,400 The equity is $460,600.
The husband has in his possession:
(a)Cryptocurrency $2,500
(b)Motor Vehicle 1 $12,500
(c)Bank account #...13 $374
(d)Subtotal $15,374
The wife has in her possession:
(a)The Suburb E property $500,000
(b)Mortgage (346,840)
(c)Bank accounts $502
(d)Household contents $5,000
(e)Credit card debt ($10,464)
(f)Superannuation entitlements $99,456
(g)Subtotal: $247,654
The total pool of assets in the names of the parties or either of them is $723,628.
The husband seeks to retain the Suburb E property. In order for that to occur the wife would need to transfer it to the husband. The Suburb E property is valued at $500,000 and has a mortgage of $346,840. Accordingly, the equity in that property is $153,160. The husband also seeks an order that the wife pay him the sum of $100,000. Accordingly, the husband’s application would see him receive assets to the value of $268,534 or about 37 per cent of the assets. In closing submissions his counsel indicated that a proper exercise of discretion would see the husband receive about 20-25 per cent of the assets.
Ordinarily I would offer the husband an opportunity to retain the Suburb E property rather than order its sale. In this case I could not be satisfied that the evidence establishes any capacity on the part of the husband to discharge the mortgage over the Suburb E property even when regard is had to the contents of a document from O Finance (Exhibit 1) to which I can, given my findings, attach little weight. Accordingly, I am satisfied that the husband’s entitlements to property settlement should be derived from the proceeds of sale of the Suburb E property.
I raised with counsel the issue of the sale and whether the husband should receive a sum certain or a percentage of the sale proceeds to reflect the possibility that the market price of the Suburb E property might depart from the valuation in either direction. No party sought to be heard against that approach (recognising however, that the husband did not seek a sale).
While the wife’s case outline sought a finding that the parties’ entitlements to the assets should be assessed so as to reflect a division of 90-95 per cent to the wife, the orders that the wife sought provided that the husband receive a payment of $70,000. This represents an adjustment of the assets in approximately 88 per cent to the wife and 12 per cent to the husband.
As is plain from my findings above I am content that the sum in the wife’s application taken together with the items which are already in the husband’s possession represent a just and equitable adjustment of the parties’ assets and superannuation. Having regard to my findings and the present agreed value of the property, I propose to order that the husband receive a percentage of the net proceeds of sale of the Suburb E property, which is equivalent to $70,000. I accept this does not take into account the costs of sale but has the advantage of providing that if the property sells for more the husband may obtain an amount more than $70,000 and if it sells for less then he may obtain an amount less than $70,000.
As discussed above there is presently equity in the property of about $153,160. The percentage necessary to give effect to the division would be 46 per cent of the net proceeds after deduction of the mortgage, real estate and legal fees.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 9 September 2024
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