Radcliffe & Marsters (No 2)
[2024] FedCFamC2F 1787
•13 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Radcliffe & Marsters (No 2) [2024] FedCFamC2F 1787
File number: LNC 590 of 2021 Judgment of: JUDGE BLAKE Date of judgment: 13 December 2024 Catchwords: FAMILY LAW – Property – composition of asset pool – where contributions are assessed as equal – where there should be an adjustment to the wife of 5% having regard to the factors under section 75(2) of the Family Law 1975 (Cth) – orders made accordingly and are just and equitable. Legislation: Family Law Act 1975 (Cth) ss 75(2), 75(2)(m), 75(2)(o), 79, 79(1), 79(2), 79(4), 81, 102NA. Cases cited: Bevan v Bevan [2013] FamCAFC 116
Deng & Galinski [2021] FCCA 843
Dickons v Dickons [2012] FamCAFC 154
Eufrosin v Eufrosin [2014] FamCAFC 191
Hua & Liu [2019] FamCA 732
Jamine & Jamine (No 2) [2012] FamCAFC 104
JEL & DDF [2000] FamCA 1353
Stanford v Stanford [2012] HCA 52
Ziska & Ziska [2013] FamCA 789
Division: Division 2 Family Law Number of paragraphs: 120 Date of last submission: 23 October 2024 Date of hearing: 2 October 2024 Place: Melbourne Solicitor for the Applicant: Mr Willaims of Glynn Williams Legal Solicitor for the Respondent: Self-represented litigant ORDERS
LNC 590 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RADCLIFFE
Applicant
AND: MR MARSTERS
Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
13 DECEMBER 2024
THE COURT ORDERS THAT:
Property each party is to retain
1.The husband shall retain the following assets and liabilities to the exclusion of the wife:
(a)the chattels at the former matrimonial home at D Street, Town E, Tasmania (‘Town E Property’) as set out in and in accordance with the valuation of Z Valuers dated 19 August 2024; and
(b)his interest in Superannuation Fund 3 (member number …27).
2.The wife shall retain the following assets and liabilities to the exclusion of the husband:
(a)her interest in Superannuation Fund 4 (account number …21);
(b)her share and interest in any bank accounts held in her name;
(c)her shares in R Bank, MM Bank, and S Company;
(d)the Whole of Life insurance policy;
(e)her long service leave entitlements; and
(f)the JJ Loan.
Superannuation splitting order
3.A base amount of $93,545.55 is allocated as required by section 90XT(4) of the Family Law Act 1975 (Cth) (‘the Act’) to the husband out of the wife’s interest in Superannuation Fund 1 (‘the Fund’) of which F Pty Ltd (‘Trustee’) is the Trustee, where the member number is …75, in accordance with the following terms:
(a)pursuant to section 90XT(1)(a) of the Act, whenever a splittable payment becomes payable in respect of the wife’s interest in the Fund with member number …75 the husband is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (‘Regulations’) and there is a corresponding reduction to the entitlement of that person to whom the splittable payment would have been made but for these Orders;
(b)the operative time is the beginning of the fourth business day after the day on which an original certificated copy of these Orders are served on the Trustee of the Fund (‘the operative time’);
(c)these Orders have effect from the operative time;
(d)the Trustee shall do all such acts and things and sign all such documents as may be necessary to calculate, in accordance with the requirements of the Act and the Regulations, the entitlement for the husband created by Order 3(a) of these Orders and pay the entitlement whenever the Trustee makes a splittable payment out of wife’s interest in the Fund;
(e)after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (‘the SIS Regulations’), the wife shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the husband’s request in accordance with the SIS Regulations, for the retention of the husband’s interest in the husband’s name in the Fund;
(f)the Court notes the value of the husband’s interest is calculated in accordance with the SIS Regulations, and any payments from the wife’s Fund made after the Trustee has created a new interest in the husband’s name in the Fund are not splittable payments in accordance with the requirements of the Regulations;
(g)until the Trustee of the Fund has effected the splittable payment in favour of the husband, the wife or any person acting on his behalf are restrained from disposing of all or any of the payment to the husband and/or his personal representatives received by or held in trust for the benefits or him;
(h)a sealed copy of these Orders are to be served by the wife’s solicitors upon the Trustee within fourteen (14) days or the making of these Orders; and
(i)until such service occurs, the wife is restrained from withdrawing, encumbering or seeking to have invested in her, her superannuation entitlements with the Fund.
Sale of the Town E Property
4.The wife and husband shall do all acts and things and sign all necessary documents to effect the sale of the Town E Property and for that purpose, the following shall apply:
(a)the Town E Property shall be listed for sale by private treaty with such real estate agent as agreed between the wife and the husband and failing agreement within 14 days from the date of these Orders, the real estate agent will be as appointed by the wife (‘the Agent’);
(b)the list price for the Town E Property shall be $400,000, or such other figure as agreed between the parties (‘list price’);
(c)the sale price of the Town E Property shall be such amount as is agreed between the wife and the husband, and failing agreement, any offer to buy the Town E Property that is at least 90 per cent of the list price shall be accepted by the wife and the husband as the sale price;
(d)the wife and the husband are to co-operate in every way with the Agent in relation to the marketing of the Town E Property for sale including making the keys readily available, allowing inspection of the Town E Property at all times reasonably requested by the Agent and ensuring that the Town E Property is clean, neat and in good order at the time of inspection by any prospective buyer; and
(e)the contract of sale shall provide for completion within 90 days after the date of the contract, or such other period as agreed between the wife and husband.
5.In the event the Town E Property is not sold pursuant to Order 4, within three (3) months of the date of these Orders, the wife and husband shall do all acts and sign all documents as are necessary to sell the property by auction, and the following shall apply:
(a)the Town E Property shall be listed with the Agent appointed under Order 4(a) (‘the Auctioneer’) for sale by auction;
(b)the wife and the husband shall execute all documents requested by the Auctioneer for the sale of the Town E Property by auction;
(c)the reserve price of the Town E Property shall be such amount as is agreed between the wife and the husband, and failing agreement at a price equivalent to the mean of two valuations by registered valuers, being members of the Australian Institute of Valuers, one obtained by and at the expense of the wife and one being obtained by and at the expense of the husband, with such valuations to be made no more than two weeks apart from each other;
(d)the wife and the husband shall each pay to the Auctioneer one half of any sums requested for advertising or auction expenses, and if one of the wife and the husband pays all of the expenses, that party shall be reimbursed from the proceeds of sale in respect of one half of such payments before any division between the wife and the husband;
(e)the wife and the husband shall give such instructions as are necessary to a solicitor to prepare a contract of sale and provide it to the Auctioneer prior to the auction no later than the date sought by the Auctioneer;
(f)the wife and the husband agree to co-operate in every way with the Auctioneer in relation to the sale by auction, including allowing inspection of the Town E Property at all times reasonably requested by the Auctioneer and ensuring that the Town E Property is clean, neat and in good order at the time of any inspection and on the day of auction;
(g)the sale price of the Town E Property shall be any amount in excess of the reserve price, but in the event of the reserve price not being reached, the sale price of the Town E Property shall be such amount as is agreed between the wife and the husband, or failing agreement, any offer received after the auction to buy the property at a price that is at least 90 per cent of the reserve price shall be accepted by the wife and the husband;
(h)the wife and the husband attend at the auction and negotiate with the highest bidder or any other interested party in the event that the reserve price is not reached, for the purpose of reaching agreement under Order 5(g); and
(i)the contract of sale shall provide for completion within 90 days after the date of the contract, or such other period as is agreed between the wife and husband.
6.Upon agreement being reached for sale of the Town E Property, the wife and the husband shall execute the contract of sale and all other documents necessary to complete the sale of the Town E Property, including all transfer documentation forthwith upon its submission to them by the Agent or their solicitor;
7.The parties must do all acts and things necessary to ensure that, upon the sale of the Town E Property, the proceeds of sale be paid in the following manner and priority:
(a)payment of the amount required to discharge the mortgage over the Town E Property;
(b)payment of any outstanding council and/or utility rates;
(c)payment of the Agent/Auctioneer’s commission and auction expenses (if any) due on the sale;
(d)payment of legal costs on sale; and
(e)payment of the balance be held in trust by the wife’s solicitors to be distributed to the parties in accordance with the method set out in Order 8 of these Orders.
8.Upon the sale of the Town E Property, if there is a balance to be distributed pursuant to Order 7(e) of these Orders, then there be a division of all property of the parties (inclusive of superannuation) in the proportion of 55% to the wife and 45% to the husband, calculated as follows:
(a)WHERE:
(i)the net assets (inclusive of superannuation) retained by the wife equals $196,719.80;
(ii)the net assets (inclusive of superannuation) retained by the husband equals $203,275.55;
(iii)the net proceeds of the sale of the Town E Property per Order 7(e) of these Orders.
(b)WHERE (i)+(ii)+(iii) = Z
(i)the Wife shall receive a sum equal to (Z x 55%) plus $2,100 (for the valuation fees in accordance with Order 4 of the Orders of 8 August 2024 (‘the valuation fees’)) – (i); and
(ii)the Husband shall receive a sum equal to (Z x 45%) minus $2,100 (for the valuation fees) – (ii).
9.The parties have liberty to apply in relation to the implementation of these Orders, including in relation to the sale of the Town E Property, and calculation of the monies to be paid to each party from the sale proceeds of the Town E Property.
Other property
10.Unless otherwise specified in these Orders and save for the purpose of enforcing any monies due under these or any subsequent Orders:
(a)the wife retain Motor Vehicle 2 and her jewellery;
(b)the husband retain Motor Vehicle 1and Motor Vehicle 4;
(c)the husband remain solely liable for his V Finance Loan;
(d)each party be solely entitled to the exclusion of the other to all property owned by or in the possession of such party as at the date of these Orders, including but not limited to, their household contents or chattels as identified in item [43] of each parties Financial Statement;
(e)each party forego any further claims they may have to any superannuation benefits belonging to or earned by the other;
(f)insurance policies remain the sole property of the owner named therein;
(g)any monies or liabilities held in any bank or credit accounts remain the sole property of the owner whose name the accounts are held;
(h)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;
(i)each party remain responsible for any debts in that party’s name; and
(j)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
Finalisation
11.If either party refuses or neglects to sign or execute and return a document within 14 days of a written request to do so, the Registrar of the Melbourne Registry of the Federal Circuit and Family Court of Australia is hereby appointed under section 106A of the Act to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal. The requesting party be at liberty to apply for costs when submitting such an affidavit to the Registrar
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
This matter concerns an application by the wife for final property orders under the Family Law Act 1975 (Cth) (‘Act’). The matter comes to me following the hearing of an appeal by Riethmuller J. The appeal before Riethmuller J concerned both parenting and property matters. Riethmuller J allowed the appeal in part, and remitted the property application for rehearing.
For the reasons that follow, I have decided that there be an overall division of the assets of the parties (including superannuation) of 55% to the wife and 45% to the husband.
BRIEF BACKGROUND
The husband was born in 1970. The wife was born in 1972.
The parties commenced living together in 2005. At the time, the wife had care of her child, Ms J, born in 2000.
At the time the parties commenced living together, the wife moved into a property at K Street, Suburb L (‘K Street’). A report annexed to the wife’s affidavit shows the following:
(a)in the period 1995 until 2007, the property was owned by the husband and the husband’s mother;
(b)from 2007 until 2008, the property was owned solely by the husband; and
(c)from 2008 until 2019, the property was owned jointly by the husband and the wife.
K Street was re-mortgaged in 2007. A copy of the mortgage account from R Bank covering the period 2007 to 2008 discloses that the total loan amount was for $134,724.64. The mortgage account is in the name of both parties.
The parties married in 2007.
There is one child of the relationship, X, born 2009 (‘X’). The parties share the care of X on an equal time basis.
In 2010, the husband’s position was made redundant. He received a redundancy payment.
In 2010, the parties jointly purchased the property at D Street, Town E for $170,000 (‘Town E Property’). This is a large rural property.
K Street was not immediately leased out. The Husband undertook renovations to K Street
In 2017/2018, the wife received an inheritance of approximately $84,449.
K Street was sold by the parties in late 2018 or early 2019 for $280,000. Following settlement costs and repayment of the mortgage, the parties were left with $55,000
The parties separated on 8 November 2020. They are not yet divorced.
THE HEARING BEFORE ME
The husband was the successful appellant before Riethmuller J.
Following the appeal being remitted to me for rehearing, I made procedural orders for the filing of trial material on 20 May 2024. The wife was ordered to file any Amended Application, her trial affidavit and an updated Financial Statement on or before 20 July 2024. Her trial affidavit and Financial Statement were ultimately filed on 26 August 2024, approximately five weeks prior to trial. She filed her Outline of Case in accordance with the timetabling orders I made. She did not file her Amended Application until 1 October 2024, however, I note that the orders she sought in the Amended Application reflected the orders she sought in her Outline of Case filed on 30 September 2024. The husband, despite being the successful appellant, did not file any trial material.
In correspondence sent to my Chambers the day prior to the trial before me, and at the opening of the hearing, the husband stated he had not been able to read, let alone process, any of the legal documents sent to him over the past few months. He claimed he had no capacity to respond or produce the required documents. He claimed the late filing of the wife’s material effectively denied him legal representation. Despite raising these matters in writing and before me, the husband was adamant that he did not want an adjournment and wanted the matter finalised.
Insofar as the husband claimed to have been unable to engage in the pre-trial process and unable to read or produce and file his trial documents, I note the following:
(a)the husband did not produce any independent medical report that indicated he was unable to participate in a hearing or prepare for hearing;
(b)the husband did produce a Certificate of Incapacity for Centrelink from a General Practitioner. That document was wholly inadequate for the reasons I set out on the transcript, and is not evidence that the husband cannot read documents, understand documents, or participate in a hearing;
(c)during the course of the hearing, I observed the husband. He read documents at the bar table and on his phone. During the course of an adjournment, he was able to return with documents he said supported his case. He was able to answer questions asked of him by the Court and the wife’s Counsel; and
(d)while the husband complains that the wife filed her material late, the following should be noted. First, while the wife did not comply with the timeline for the filing of her trial material, she nevertheless filed her trial affidavit and Financial Statement approximately five weeks prior to the trial. The husband had plenty of time to consider it and cannot claim to have been caught by surprise. Second, the filing of the wife’s trial material needs to be considered in a context where the parties were unable to obtain valuations of property because the husband had not signed the valuation documents. The wife was required to come to Court on 8 August 2024 before me to deal with that matter. The wife could not sensibly prepare her trial material by 20 July 2024 until she understood the value of the property. Third, the filing of the wife’s trial material needs to be considered in a context where the Court made orders for the husband to produce documents on 8 August 2024 and the husband did not comply with those orders. Finally, the filing by wife of her material after the dates set out in the orders I made, would appear to be of no consequence for the husband in circumstances where the husband claims he received emails but did not read them, and in circumstances where he nevertheless wants the matter finalised.
The Court was thus left in the novel position where the husband had succeeded on appeal, but then singularly failed to file any material for trial. His conduct is particularly concerning given the costs to the parties of this litigation overall when the size of the asset pool is considered. The asset pool is, on any view, a small one. For the husband to succeed on appeal, but then not prosecute the remitted proceeding with any due diligence, simply results in a small pool being diminished further once legal costs, the costs of updated valuations, and other costs are taken into account.
The husband laboured under a second difficulty before me. An order had been made under section 102NA of the Act on 8 August 2022 preventing either party from cross-examining the other. That order remained in force. I raised the existence of that order with the husband on each of the occasions he appeared before me on 20 May 2024 and 8 August 2024. On both occasions, I encouraged the husband to obtain legal representation pursuant to the applicable scheme. Further, on 20 May 2024, I made a notation to the orders that day advising the husband to remake his application for legal assistance to the relevant cross-examination scheme, having regard to the orders of the Court of 8 August 2022. Then, on 8 August 2024, I made a notation that section 102NA of the Act applied to the proceedings and any unrepresented party would not be permitted to personally cross-examine the other party.
Despite these matters, the husband appeared before me unrepresented. As noted earlier, he sought to attribute his lack of representation to the late filing by the wife of her trial material which he said deprived him of representation. I do not accept that as an explanation for the husband’s lack of representation. There is no evidence, and the Court is not aware from its own knowledge, that a grant of legal assistance is only given to a party where the other party has first filed its trial material. Experience indicates that legal aid bodies require at least 12 weeks notice to arrange representation under the cross-examination legal aid scheme, and it is quite common at that point in time for neither party to have filed any trial material. It is also unlikely the husband would have sought to arrange any representation in circumstances where he indicated to the Court he was not reading emails or generally attending to the matter.
Given the above matters, the hearing proceeded with the husband not being permitted to cross-examine the wife.
THE MATERIAL BEFORE THE COURT
The wife relied on her trial affidavit of 26 August 2024, her updated Financial Statement of the same date, the affidavit of Mr PP (valuer) filed 26 September 2024, the affidavit of Mr QQ (valuer) filed 26 September 2024, and her Outline of Case filed 30 September 2024.
As noted above, the husband did not file any trial material. Following an invitation from the Court, the husband sought to rely on the affidavit he had prepared for the earlier trial that he affirmed on 26 October 2022. I permitted him to rely on that affidavit. The husband also drew the Court’s attention to an updated Financial Statement he had filed on 17 October 2023, and sought to rely on that. I permitted him to do so.
During course of the hearing, both parties tendered documents and I have taken those documents into account. The hearing occurred initially over one day on 2 October 2024.
On 23 October 2024, I recalled the matter. It was necessary to do so because at the trial, both parties had made submissions on the content of the pool of assets and liabilities. On return to my chambers, I reviewed the trial materials. That review disclosed that there appeared to be assets and liabilities of the parties that I had not been addressed on. Accordingly, the matter was recalled on 23 October 2024. The correspondence sent from my chambers made it clear that the purpose of listing the matter for mention was to receive submissions from the parties on whether any other items set out in the parties respective Financial Statements should be included in the pool of assets and liabilities.
Notwithstanding that the specific purpose of recalling the matter was to take submissions from the parties about whether specific items referred to in the correspondence sent from my chambers should be included in the pool of assets and liabilities, the parties sent to my chambers additional documents and sought to make submissions on other matters. In respect of the documents that were sent to me by the parties, I have taken the following approach:
(a)I have treated the two page letter (without attachments) from the wife’s Counsel dated 22 October 2024 as an additional submission. I have similarly treated the email from the husband dated 23 October 2024 as an additional submission by him;
(b)I have not had any regard to the letter by Mr KK dated 28 November 2023. Its admission into evidence was objected to by the husband and the objection must be sustained. It constitutes additional evidence. No leave was given to any party to tender additional evidence. Furthermore, the content of the letter amounts to hearsay; and
(c)I have had regard to and admit into evidence the email from Ms LL dated 22 October 2024 in relation to the wife’s long service leave balance. The husband did not object to it being tendered into evidence and it would be surprising if he did, given it confirmed his submission as to the wife’s long service leave entitlements.
THE POSITION OF THE PARTIES
The wife sought that the assets of the parties be divided on a 50/50 basis between them, save for the funds in her Superannuation Fund 4 account, which she said she should retain.
The husband’s position was as follows:
That the property be signed over to me, that the applicant remain guarantor on the loan only until I can refinance the property completely into my name, and she keep her super, which is fairly reasonable – an equal split, considering I will also be taking on the combined debt, the $120,000 mortgage.
In his affidavit, the husband says that he wishes to retain the Town E Property to establish a business in order to provide an income to him and that he also hopes to make some money by selling products. He acknowledges that his capacity to refinance is limited due to his low income, but says he will be at a significant disadvantage if the Town E Property is sold.
RELEVANT PRINCIPLES
The power of the Court to alter the property interests of parties is contained within section 79 of the Act.
Sub-section 79(1) of the Act empowers the Court to make such orders as it considers appropriate in altering the interests of the parties to the marriage. The power of the Court under sub-section 79(1) of the Act is a power to be exercised having regard to the sub-sections that follow, and in particular, sub-sections 79(2) and (4) and consequently, sub section 75(2) of the Act.
The provisions set out above have been the subject of extensive consideration by both the High Court of Australia and the Full Court of the Family Court of Australia: see Stanford v Stanford [2012] HCA 52 at [35]-[40], [42]; Bevan v Bevan [2013] FamCAFC 116 at paragraphs [73] to [86], [89]. The Chief Justice summarised the applicable principles and approach in Deng & Galinski [2021] FCCA 843 at [34]–[37]. I am required to approach the matter consistently with the principles articulated above.
When it comes to the assessment of contributions and the approach to be taken, I have had regard to the comments of the Full Court in Dickons v Dickons [2012] FamCAFC 154 (especially paragraphs [23] and [24]), Eufrosin v Eufrosin [2014] FamCAFC 191, and Lovine v Connor [2012] FamCAFC 168 at [42].
SHOULD AN ORDER FOR THE ALTERATION OF PROPERTY INTERESTS BE MADE?
I am satisfied that in this matter it is just and equitable to embark upon an exercise of determining how the assets between the parties are to be split. The parties separated in 2020. The parties have already participated in one trial and participated in an appeal proceeding arising from that trial. They are now before me for rehearing of the trial in relation to the adjustment of property interests. There are extant orders that govern the parenting arrangements between them and X. It is self-evident that the parties are no longer in a relationship and that there will no longer be any common property available for shared use by the parties. I am satisfied that it is just and equitable to make an order for property division pursuant to section 79 of the Act.
ASSETS AND LIABILITIES OF THE PARTIES
At the hearing on 2 October 2024, I directed the parties to Part D of the wife’s Outline of Case. I asked each of the parties whether they agreed that the assets and liabilities listed in Part D of the wife’s Outline of Case ought to be included in the asset pool. Both parties confirmed the items in Part D were to be included in the asset pool, though the husband contended that there were three other matters that needed to be included. They were the wife’s entitlement to long service leave, tax deductions the husband contended were able to be utilised by the wife and shares owned by the wife. The wife accepted that her long service leave entitlement and her shares should be included in the pool of assets, but continued to resist the inclusion of the tax losses.
As noted earlier, it was necessary to recall the matter on 23 October 2024 to deal with assets and liabilities that I had not been addressed upon on 2 October 2024. I noted the wife had disclosed in her Financial Statement a number of bank accounts (including accounts shared with others) where the amount was less than $100. I suggested to the parties I would exclude nominal amounts (amounts under $100) and no submission was received to the contrary. The parties otherwise made submissions as to those items to be included in the pool.
Having regard to the hearings on 2 October 2024 and 23 October 2024 and submissions received , the parties agreed that the following items were to be included in the pool of assets and liabilities:
Description Ownership Value ASSETS 1 Jointly owned rural property at D Street Town E (per single Valuation) Joint 400,000 2 Chattels at Town E per single valuation Joint 75,480 3 R Bank Acc xxx00 Wife $1,752.09 4 R Bank Acc xxx15 Wife $760 5 R Bank Acc xxx21 Wife $972.48 6 R Bank Acc xxx03[1] Wife $12,832.23 7 R Bank Acc xxx67[2] Wife $553.64 8 R Bank Shares Wife $8,610[3] 9 S Company Shares Wife $949.76 10 MM Bank Shares Wife $15.15 11 Whole of Life Policy Wife $200 12 Wife’s long service leave[4] Wife $31,585 Assets subtotal $533,710.35 LIABILITIES 13 NAB Mortgage on Town E Property Joint 121,635 14 JJ Loan Applicant 16,081 Liabilities subtotal 137,716 SUPERANNUATION Name of Fund Type of interest Member Value 15 Superannuation Fund 1 Accumulation …75 207,879 16 Superannuation Fund 3 Accumulation …27 34,250 17 Superannuation Fund 4 Defined
Benefit…09 40,237[5] Superannuation subtotal $282,366 TOTAL (assets – liabilities) $395,994.35 TOTAL (assets – liabilities + superannuation) $678,360.35 [1]The wife subsequently clarified this account was an NN Bank account.
[2]The wife subsequently clarified this account was an NN Bank account.
[3]The wife’s Financial Statement ascribed a value to this amount of $8,610. This was accepted by the husband. The wife then sought to assert in her letter of 22 October 2024 that the value of these shares was $972.48. I have used the figure in the Financial Statement in circumstances where the Financial Statement is the sworn document, and the husband agreed to that value at trial.
[4]The husband contended that the wife’s long service leave should be included in the pool and the wife’s representative agreed it needed to be taken into account. The wife appears on the evidence to have the ability to cash out of some or all of her long service leave. In the circumstances, the long service leave should be included in the asset pool: see Ziska & Ziska [2013] FamCA 789; Riethmuller and Smith, ‘Family Law’ (7E) at [24,200].
[5]The parties agreed to the value of this benefit, notwithstanding its apparent character as a defined benefit scheme. No splitting order is sought by either party. The Act does not require a formal valuation in these circumstances: Welch & Abney (2016) FLC 93-756 at [31-2] and Semperton & Semperton (2012) 47 Fam LR 626 at [174]-[175].
There are then the remaining issues between the parties as to what is to be included in the asset pool. I deal with these below.
The wife’s tax losses
The husband submitted that the wife has an entitlement to $90,000 in tax deductions that needed to be taken into account. The wife accepts there are tax losses, but says they have no value and should be excluded from the pool.
In JEL & DDF [2000] FamCA 1353, a Full Court (Holden and Guest JJ, Kay J concurring) confirmed that past taxation losses are not property, but may have a value as a financial resource. I will therefore not include the wife’s tax losses in the pool. I will consider whether the tax losses are to be taken into account later in these reasons when I come to address the factors under section 75(2) of the Act.
The parties vehicles and the husband’s vehicle loan
Both parties own vehicles (the wife owns Motor Vehicle 2, the husband owns Motor Vehicle 1). No valuations of the vehicles were in evidence. The parties ultimately agreed, as a pragmatic measure, that these vehicles should not be included in the asset pool. The husband, however, insisted that the loan against Motor Vehicle 1 be included in the asset pool.
The evidence about the existence of Motor Vehicle 1 and the loan amount is to be found in the husband’s Financial Statement. In that document, the amount of the loan is said to be $18,006.32 and the lender is identified as V Finance.
The wife did not dispute the existence of the loan, but resisted its inclusion in the balance sheet.
It is not possible to identify what the value of the loan currently is. The husband’s Financial Statement was filed in October 2023. It is over a year old. He has not produced any evidence as to the current loan balance. It may be that it has reduced because of repayments. It may also be that it has increased if the husband has defaulted. It is somewhat of a curiosity that the value the husband ascribes to the loan ($18,006.32) in his Financial Statement is the exact same value he ascribes to Motor Vehicle 1 in his Financial Statement. The true situation in relation to husband’s actual liability is not known. The other issue is that the loan is tied to the husband’s vehicle, which the parties have agreed is outside the asset pool.
I will not include the husband’s vehicle loan in the Table of Assets and Liabilities. Its value is not known. It would not be just and equitable to include it in the Table of Assets and Liabilities in circumstances where the Motor Vehicle 1 sits outside the pool (by agreement) but the husband seeks to include the loan for this asset in the pool. While I am not able to include this amount in the asset pool for the reasons I have set out, I propose to consider this loan (unquantified as it is) further when I examine the factors under section 75(2) of the Act.
Household contents
At item [42] of her Financial Statement, the wife has disclosed household contents said to be valued at $2,500. Likewise at item [42] of his Financial Statement, husband has disclosed household contents of $2,500. Neither party has produced a valuation for these items. Neither party addressed me on this matter. It is abundantly clear that each party owns household items given they live in separate households. Given there are no valuations, I do not propose to include household contents in the asset pool. Given that the estimated values of each households contents are the same, and given that each will require household items in the future, I will simply make an order that each party retain their household contents.
Other personal property
At item [43] of his Financial Statement, the husband identified, inter alia, ‘Plant and equipment, other vehicles etc’ as his property and assigned a value of $17,500. I asked the husband whether this was the same equipment that is described as ‘Chattels at [Town E]’ and been valued by Z Valuers. The husband confirmed that many of the items at item [43] of his Financial Statement were included in the chattels valued by Z Valuers. I will therefore not include these items at item [43] of the husband’s Financial Statement in the Table of Assets and Liabilities.
At item [40] of his Financial Statement, the husband discloses he owns Motor Vehicle 4, which is worth $3,000. There is no valuation of this vehicle in evidence. The wife did not submit it ought to be included in the Table of Assets and Liabilities, nor did she dispute its existence. In the circumstances, I decline to include Motor Vehicle 4 in the pool, but propose to consider it further under section 75(2)(o) of the Act.
At item [43] of her Financial Statement, the wife has disclosed jewellery said to be valued at $900. I asked the wife’s Counsel about this. He said there was an old valuation, but one was ultimately not tendered. The husband made no submission on the issue. He did not dispute the existence of the jewellery or its value.
I will not include the wife’s jewellery in the Table of Assets and Liabilities. Like the husband’s vehicle loan and the Motor Vehicle 4, there is simply no evidence before me as to its true value. Its existence, however, is not disputed by the husband. I will therefore consider it further when assessing the factors under section 75(2)(o) of the Act.
Conclusion regarding pool of assets and liabilities
Having regard to the matters outlined above, the Table of Assets and Liabilities is as set out in paragraph [38] above.
THE WIFE’S EVIDENCE
The wife’s evidence as to contributions and future needs may be summarised as follows:
(a)her assets as at the commencement of the relationship were a car with an approximate value of $8,000, an S Insurance Whole of Life Policy withdrawal benefit (‘S Insurance Policy’) with an approximate value in 2003 of $6,037.30, shares and cash in a term deposit of $7,500 (I observe there is no valuation of the car, the shares or the S Insurance Policy at the commencement of the relationship). It is also the accepted position between the parties that the wife had superannuation with Superannuation Fund 4 at the time she entered the relationship. The value of Superannuation Fund 4 account at that time is not known;
(b)she moved into K Street in 2005 and contributed $200 a fortnight to a bank account jointly held by the husband and his mother for some 2.5 years. She understands her contribution went into the account from which the mortgage on K Street was paid. She estimates her contribution as being $13,000 (65 x $200) and her evidence is this contribution enabled the husband to repay his mother for her contribution to the initial cost of the property. She also contributed to groceries and the like. The husband was unemployed at the time she moved into K Street;
(c)the husband commenced casual work in mid to late 2006. In contrast, during 2005 and 2006, she worked on a casual basis as an educator;
(d)in 2007, K Street was jointly remortgaged between the husband and herself and the loan was for an amount of $134,724. The remuneration of both parties was deposited into a joint account. She says her income at this time was stable and consistent at around $1,300-$1,700 per fortnight and at times was more than the husband’s income. In or around this time, she contributed to the renovations including painting, general household tasks, mowing the yard, and childcare for the children;
(e)that around this time, the husband purchased a second-hand vehicle and accessories, as well as settled a credit card debt, and that she contributed to the payment of these debts;
(f)in 2010, the husband’s position was made redundant. He received a redundancy payment. The parties subsequently purchased the Town E Property for $170,000 using the equity in K Street. K Street was not rented for close to two years and in order to meet the various repayments, the parties borrowed $5,000 against the S Insurance Policy;
(g)the husband contributed non-financially to renovations to K Street. The wife contributed to some exterior and interior painting and cared for the children. The wife’s father assisted in the completion of renovations, providing the expenses and labour for a large part of the kitchen refurbishment. Ultimately, K Street was rented and the rental returns met most of the ongoing costs of that property;
(h)in mid-2017, she received an inheritance from her father. The wife used approximately $12,000 of this amount for travel overseas, but also gave funds to the husband to enable various purchases including a vehicle, extras for the second-hand vehicle and other amounts totalling $19,000. Also during 2017, there was an additional refinance of both properties which equated to additional debt of over $50,000 in order to fund further changes to the Town E Property;
(i)in 2019 at the husband’s insistence, she moved the remaining portion of the inheritance funds she had received from her father into the parties mortgage loan offset account. However, she subsequently had to buy a new car and pay out an old car loan which left only $24,000 in the offset account;
(j)in 2019, the K Street property was sold for $280,000. After the payment of costs, $55,000 remained. Approximately $45,000 of this amount was used by the husband to purchase machinery and a further $11,000 was used by the husband to purchase additions to the machinery. The wife says the husband also used funds to purchase a laptop, attend a course and make a final payment to his mother;
(k)in the period 2010 to 2020, she paid $1,300 a fortnight to ensure that mortgages and insurance fees were covered and also paid $200 per fortnight towards household expenses;
(l)by 2017, the husband had accrued approximately $67,000 in superannuation but then systematically began withdrawals from superannuation. The wife says these repeated withdrawals of $10,000 from his superannuation have reduced his superannuation balance;
(m)the majority of Ms J’s care and all Ms J’s financial costs were met by her;
(n)the parties shared the care of X;
(o)she attended to the majority of the household work such as cleaning, cooking and washing clothes. Additionally, she attended to the garden beside the house, helped with the mowing, and contributed to starting the business the parties were seeking to establish;
(p)she left the relationship with little, and in 2020, withdrew the remaining funds from her father’s estate of $4,800. A document tendered by the wife shows that at January 2021, the balance of her superannuation and associated investments were $160,241;
(q)the family partnership with the name Mr Marsters and Ms Radcliffe that was established in 2011 operated the businesses BB Business, OO1 Business and OO2 Business. The registration of these names was ‘taken’ by the husband, who re-registered as a sole trader in 2020 and transferred the businesses without her knowledge;
(r)the husband has not made any disclosure of assets over $10,000 pursuant to orders by the Court,[6] however, he has made further withdrawals from his superannuation fund on each occasion of $10,000;
(s)the husband has $850 worth of equipment that cannot be used without the appropriate licenses. He has also purchased related materials worth around $5,000;
(t)the husband’s Financial Statement should include the vehicles that he owns. Further, the husband has not disclosed his gross or net income from subcontracting, government benefits or pension statements;
(u)she pays child support to the husband as prescribed by the Child Support Agency. She remains employed in the education sector and also has casual employment with N Services. This is her 12th consecutive year working for her present employer in education;
(v)she has re-partnered with Mr CC. She and Mr CC keep their financial commitments separate, save for one joint account, which is used solely to meet household expenses. Mr CC has minimal assets from his previous marriage;
(w)twice since separation, she has serviced the mortgage of the Town E Property by repaying hardship debts organised by the husband with the bank without her knowledge. The wife attached to her affidavit correspondence from the NAB. That correspondence demonstrates that she has engaged with the NAB in 2023 to enter into repayment arrangements with respect to the mortgage on the Town E Property. The wife says the husband’s repeated use of these measures impacts the short-term credit ratings for both of them;
(x)in connection with the rehearing, she has had to pay for updated valuations of the chattels ($1,700) and the Town E Property ($2,500), and she formally seeks reimbursement from the husband for his share of these costs; and
(y)the husband has worked in some form of paid employment throughout the relationship in a wide variety of roles.
[6] See order 2(e) of the orders of 20 May 2024.
There was no challenge to the wife’s evidence and I accept it.
THE HUSBAND’S EVIDENCE
The husband’s evidence as to contributions and future needs as set out in his affidavit and Financial Statement may be summarised as follows:
(a)at the commencement of the relationship, he had a half interest in K Street. There is no evidence of the value of K Street at that time nor the net equity in the property at that time (other than the husband’s estimate of what he says the loan ‘would have been’. The husband says his mother was put on the title and was party to the loan used to buy the property because he could not acquire it of his own accord. He also says he had at the time a small amount of superannuation, several vehicles and equipment (no valuations or particulars are provided of these items);
(b)his mother’s interest in K Street was transferred to him before he married the wife and he paid his mother $10,000-$12,000 to compensate her for the money she had put into the property over the years;
(c)when the parties married, K Street was refinanced, and the property was transferred into both the parties names, and a mortgage was taken out in their joint names. The wife did not pay anything to him to transfer the half interest she acquired in K Street;
(d)he undertook a range of renovations to K Street in order to rent it out;
(e)he worked in a number of casual positions between 2005 to 2010, however, he was working more than full-time hours across those positions. In 2010, his position was made redundant and he received a redundancy payment. These funds were used to buy vehicles and place storage facilities on the Town E Property. He ultimately transitioned to self-employment to develop the Town E Property and care for X;
(f)K Street was sold in 2018 for $280,000 and the parties were left with about $55,000 after the payment of costs. The $55,000 was paid into the mortgage on the Town E Property;
(g)after the Town E Property was purchased, the wife paid $1,300 per fortnight into the parties joint NAB account to pay bills and the husband says in the first few years whilst X was at home, he would put whatever money he earned into that account and it ‘would have been about $500- $600 per fortnight’. He asserts he would have put in ‘as much as [Ms Radcliffe], or more’ afterwards, but does not nominate a figure;
(h)following the purchase of the Town E Property, he undertook a range of renovations. He also undertook other work connected with the outside of the property. He acknowledges that the wife was working full-time from 2013, but says she refused to contribute any more than the $1,300 per fortnight;
(i)in 2012, the parties received around $75,000 as compensation for a caveat being placed on the Parkham Property to protect flora and fauna. The husband says these monies were used to purchase equipment and pay off the wife’s remaining HECS debt;
(j)In 2011, the parties established the Mr Marsters and Ms Radcliffe partnership. The partnership was used to operate the parties businesses from the Town E Property. The husband says the partnership ran at a loss over the years and the losses enabled the wife to receive beneficial tax returns given her higher income. The husband says the wife has carry forward tax losses available to her in future tax years of $90,000 or so. He also says that the partnership has not been wound up, and the only thing left in it is the V Finance loan which has been refinanced into his sole name;
(k)he assisted in the care of Ms J, including by taking her to school and picking her up, and contributing to her school fees and other expenses;
(l)he was the primary carer of X. He says he was primarily responsible also for preparing food, except in the last few years when the wife did it. He also claims to have done all of the washing, though he says he did not wash the wife’s clothes;
(m)he acknowledges that he withdrew $10,000 from his superannuation in the first financial year of the Covid-19 Pandemic (in order to ‘catch up’ on bills and buy some equipment), and took a further $10,000 from his superannuation in the second financial year of the Covid-19 Pandemic to purchase further equipment, and then withdrew a further $10,000 less tax in 2022 on hardship grounds. In cross-examination, he confirmed further withdrawals of $10,000 by him in 2023 and 2024;
(n)he acknowledges that the wife received an inheritance of $84,449.90 in 2018 and says she used this for a trip for herself, as well as to buy a car. He also says that $12,000 was paid for electrical devices and to pay other bills;
(o)since separation, he has paid the mortgage and other outgoings on the Town E Property on his own account;
(p)that he has not had any regular work since 2023, however, has undertaken some casual work;
(q)at the time of filing his affidavit on 26 October 2022, he also had access to the family tax benefit of approximately $193 per fortnight and the Jobseeker benefit of $734 per fortnight;
(r)he pays for all of X’s school clothes and accessories;
(s)residing on the Town E Property is of significant benefit to him and he hopes to develop it to improve his future income, including by setting up a business and selling products. The property is his retirement plan;
(t)in ‘the last financial year my turnover was at about $30-$40,000 dollars from my contracting labour’ and ‘in the 2020-21 financial year my contracting income was recorded as $26,324.00’; and
(u)he is no longer in receipt of weekly insurance payments.
As noted earlier, when the matter was recalled on 23 October 2024, the husband sent to my chambers, by email, a written submission. In that document, the husband made submissions concerning K Street, including his equity and contributions to that property over the course of the years. He also made submissions about the Town E Property and his contributions to it. A great deal of what the husband has set out in that document is not in his affidavit and consequently not in evidence before me. As I explained to the husband at the outset of the hearing, there are certain ways in which evidence is placed before the Court. The husband’s submissions on 23 October 2024 are not evidence and cannot be given weight as evidence.
CONSIDERATION
Contributions
Both parties entered the relationship with some assets. The wife had her car, the S Insurance Policy, some cash, her superannuation and some shares. The wife has estimated the value of these items, but there is no documentary evidence corroborating these values at the time, and I am therefore unable to conclusively attribute any value to them. Similarly, the husband claims he had a half interest in K Street, superannuation, vehicles and other equipment. There is no value or estimated value of these items at that time.
The wife’s clear evidence is that she contributed $200 per week to a joint account held by the husband and his mother for some 2.5 years prior the marriage. The amount of that contribution is approximately $13,000. The wife says that the husband used that amount to repay his mother for the initial cost of the property. The husband denies this and says he funded this out of his own pocket. I prefer and accept the evidence of the wife. Her evidence as to her regular contributions and the amount of those contributions is precise.
There is evidence that both parties made non-financial contributions to K Street. The wife references general household tasks and mowing the lawn, all of which I accept. Her father contributed to the renovation to the property. There is then the evidence of the husband, supported by the wife, that he undertook significant renovation works outlined earlier in order to improve the rental prospects for the property. I accept he did so. The husband made the greater non-financial contributions to K Street.
I find that in 2010, the husband received a redundancy payment. I accept this was used for the purchase of equipment for the Town E Property, as well as to undertake renovations on the Town E Property.
Both parties agree that K Street was vacant for 1-2 years. In that period, the wife borrowed $5,000 against the S Insurance Policy to assist with various repayments owed by the parties during this time.
I find that in the period 2010 to 2020, the wife contributed $1,300 a fortnight to ensure that the mortgages and insurance were paid, and also contributed an amount of $200 per fortnight towards household expenses. I accept that during this time, the husband contributed around $500-$600 per fortnight to the mortgage. The husband’s claims that he ultimately paid more than this, and contributed more than the wife, cannot be accepted. Those claims amount to little more than generic assertions. He has not specified the actual amounts he contributed, nor the source of those funds, particularly in circumstances where he was self-employed and undertaking works on the Town E Property. The wife’s contributions on this front were greater than that of the husband.
I accept the husband made a range of non-financial contributions to the Town E Property as detailed in his evidence set out earlier. I also accept the wife’s evidence that she made non-financial contributions to the Town E Property, including through mowing, maintenance of plants and attending to the garden. In my view, the husband made greater non-financial contributions to the Town E Property than that of the wife.
The wife says the majority of Ms J’s costs were met by her and I accept that evidence. She held paid employment throughout the majority of the parties relationship whereas the husband was in casual employment and then later self-employed. She was therefore in a clear position to meet Ms J’s costs. For the same reason, I also accept her evidence that she paid for X’s extracurricular school activity fees and uniforms. She made a greater contribution than that of the husband to these costs.
There is then the care of Ms J and X.
The wife’s evidence is that she provided the ‘majority of [Ms J’s] care’. She provides little detail about this. In contrast, the husband claims that in the period before the parties moved to the Town E Property (2005-2010) he was primarily responsible for Ms J, and that he remained so thereafter. He gives detailed evidence about picking her up and dropping her off at school, feeding her, transporting her to appointments and assisting with morning and evening routines when the wife was unavailable. He says once the move to the Town E Property occurred, he remained responsible for Ms J particularly as the wife would stay in City M overnight for one or more nights per week for work purposes. He says things stayed much the same after 2013 when the wife moved to work at a location that was close to the home.
The wife’s evidence in relation to X is that she considered the parties care of X to be ‘shared’. She says for the first three years of his life, she was only working 5 to 6 days per fortnight which enabled her to care for him and the husband was also working part-time. When she began full-time work and when X began school, she acknowledges being absent for morning routines, but says she was there for X and Ms J in the evening including preparing meals, assisting with homework and reading, and being there at bedtimes. The husband in contrast says that he was the primary carer of X. He acknowledges they both initially cared for X as an infant before the wife returned to work. After that, once the parties moved to the Town E Property, he says he was responsible for providing all of the necessities for the children including preparing food, cleaning up, washing and generally taking care of them. He says this was particularly the case when the wife was staying once per week in City M in the period 2010-2013.
There was no cross-examination on these issues. In the absence of cross-examination, it is difficult to reconcile the competing accounts of the parties. In my view, the weight of the evidence leads to the following conclusions:
(a)the husband’s evidence that he was primarily responsible for Ms J in the period prior to the parties moving to the Town E Property should be accepted. I prefer his clear and detailed account over the generic evidence of the wife;
(b)the parties both initially cared for X as an infant;
(c)in the period 2010–2013, the wife worked at City M and spent at least one night per week there to save money. During this period:
(i)on the nights the wife was away, the husband was responsible for getting the children ready in the morning, dropping them at school or bus stops, and collecting them at the end of the day;
(ii)the husband was responsible for meeting the children’s needs when the wife was away for one night per week, including but not limited to, care, cooking, cleaning and washing; and
(iii)the wife was home at least 5-6 nights per week. When she was home, I am satisfied that both parties assisted with cooking, cleaning and night routines and the general care of the children;
(d)in the period 2013 to the end of the relationship:
(i)the husband was responsible for getting the children ready in the morning, dropping them at school or bus stops, and collecting them at the end of the day (noting that Ms J left home in the last few years of the relationship);
(ii)the wife cooked the meals for the family. The husband’s assertion at paragraph [499] of his affidavit, that he was primarily responsible for preparing food for the family except for dinner in the last few years, can be given no weight in light of his earlier evidence at paragraphs [106]-[107] that the wife would buy the ingredients and cook the evening meal; and
(iii)both assisted with the children’s evening routines.
When these contributions to the welfare of the family are considered, they should be assessed as slightly in favour of the husband, however, both parties played roles in the lives of their children.
It is not disputed that later in the relationship, the wife received an inheritance of $84,449.90. I accept the wife’s evidence that she withdrew $12,000 from the inheritance to travel overseas. She also, after having placed some of the funds in the mortgage offset account, then withdrew $24,000 from that account to buy a new car, and then withdrew a further $4,800 when she left the relationship. The remaining amount was available to the parties. I accept the wife’s evidence that the husband used the inheritance in the manner described earlier by the wife.
The husband says that post-separation, he has paid the mortgage and other outgoings on the Town E Property. I am unable to accept that evidence for the following reasons. First, to the extent that evidence is able to be accepted, it can only be accepted up to the time he filed his affidavit in 2022. Second, the wife has adduced evidence indicating that she has engaged with the NAB in relation to repayment plans and has made payments under those plans. The state of the evidence does not enable me to determine the amount of any contributions made by the parties to the mortgage on the Town E Property post-separation. It would appear, however, that both parties have made some contribution.
There is not any controversy that the wife pays child support to the husband of $148.32 per week.
In my view, the contributions in this matter should be assessed as equal. The particular matters that underpin this conclusion are as follows:
(a)while the husband entered with an interest in K Street, that interest is not quantified. I give the interest some weight, but I also give weight to the wife’s contribution which enabled the husband to pay out his mother’s interest in K Street;
(b)the wife’s financial contributions to the Town E Property exceed those of the husband over a significant period of time ($1,300 per fortnight from the wife, compared to $500-$600 per fortnight from the husband);
(c)the husband’s non-financial contributions to the properties exceed those of the wife;
(d)both parties contributed to the welfare of the family and the raising of the children, with the husband contributing slightly more to the care of the children than the wife; and
(e)the inheritance received by the wife reasonably late in the relationship which was used to, inter alia, refinance debt of the parties and fund materials for the Town E Property.
Factors under section 75(2) of the Act
The wife is employed and has capacity for employment. She earns approximately $2,294.24 (gross) from her employment, and has other nominal income. There is not any evidence to suggest that her health is poor and that her capacity to earn an income may be compromised.
The husband is not employed. In his affidavit, he describes himself as ‘self-employed’. His current income is not known. His Financial Statement from one year ago disclosed an income of $1,406 per week, but it is plain from his own evidence that that figure is out of date. In the same affidavit, he also describes himself as being in good health. Notwithstanding what he told me at the hearing about his inability to produce his trial material, there is no evidence from a medical expert to suggest that he is unable to work or earn an income. The husband also says in his affidavit that he hopes to develop a business in order to obtain an income. Under cross-examination, he said he was not claiming to be physically unable to work at all (though he later alluded to a mental incapacity, for which there is no corroborating evidence).
The husband also has a number of qualifications. There does not appear to be anything that would prevent him from working again in any of these fields in the future. This is of significance, particularly if the Town E Property is sold. He has experience in some of these fields which strongly suggests he could resume employment in them.
In the circumstances, I find that the husband has capacity to work either in a manual role, or in an occupation for which he holds qualifications.
There is no evidence that the duration of the marriage has affected the earning capacity of either party.
I note that the wife has re-partnered with Mr CC. I accept her evidence that they keep their financial commitments separate. There is nothing in the evidence that would warrant an adjustment under section 75(2)(m).
I am satisfied that the parties will share the care of X in the future.
I am satisfied that the wife pays child support of $148.32 per week.
None of the matters set out at paragraphs [74]-[81] above warrant any adjustment under section 75(2) of the Act in favour of one party or the other.
I turn now to deal with three specific matters under section 75(2).
The wife’s tax losses
There is no dispute as to the following. First, the wife has tax losses that she can carry forward of approximately $90,000. Second, those losses were incurred when the wife and the husband operated the Mr Marsters and Ms Radcliffe partnership – see affidavit of the husband at [474]-[483]. Third, the partnership is no longer operational, though it has not been formally wound up – see affidavit of the husband at [484]. Fourth, on either party’s evidence, there is little if any value left in the partnership – see affidavit of the husband at [481] and affidavit of the wife at [74].
It is the husband’s evidence that the partnership was used to conduct the parties proposed business. There is no evidence that the wife is engaged or proposes to engage in any business in the future. She is employed as an educator. The evidence is that it is the husband who wishes to engage in some form of business in the future.
There is no evidence before me that the wife will be able to utilise the tax losses she incurred whilst participating in the Mr Marsters and Ms Radcliffe partnership. Neither party has adduced any admissible evidence, let alone expert evidence, which shows that these losses will be available to the wife in future years, given her employment in education.
In the circumstances, I am not satisfied that the wife’s tax losses are a financial resource that are available to her where she now works as an educator. Accordingly, no adjustment is warranted under section 75(2)(b).
The husband’s vehicle loan
There is no dispute that the loan is in existence. There is no evidence as to the quantum of the loan, the responsibility for which rests clearly on the husband. I take account of the fact that the loan is in existence, and that it belongs to the husband. I also take into account the fact that the husband has the sole benefit of the vehicle to which the loan is attached and that the parties agreed that the vehicle should be outside the pool. When these circumstances are weighed, the justice of the case (section 75(2)(o)) does not call for any adjustment in favour of the husband on account of the loan. Nor would it be just and equitable overall for there to be any adjustment in favour of the husband on account of this loan.
Motor Vehicle 4
There is no dispute the husband owns this vehicle. There is no evidence of its value. The husband says its worth $3,000. The wife did not dispute this. I take account of this vehicle pursuant to section 75(2)(o) of the Act.
The wife’s jewellery
There is no dispute the wife has jewellery. There is not evidence of its value. The wife says the value is $900. The husband did not dispute this. I take account of the wife’s jewellery pursuant to section 75(2)(o) of the Act.
Non-disclosure by the husband and failure to file trial material
The wife submitted that the husband’s failure to file his trial material and to provide proper disclosure was a matter that the Court should take into account.
The husband did not file an up to date trial affidavit, nor did he file an up to date Financial Statement prior to trial. Orders were made requiring him to do so on 20 May 2024. He did not comply with the orders at any time in the lead up to trial. The trial affidavit relied on by the husband was two years old. The Financial Statement of the husband was over one year old.
The consequence of the husband failing to file an up to date trial affidavit and an up to date Financial Statement is that his true financial position was not known at the trial. Evidence emerged during cross-examination of the husband making withdrawals from superannuation and purchasing equipment. None of this could be taken into account.
The position of the husband can be contrasted with that of the wife. Her Financial Statement discloses everything she has, in many cases to the nearest cent. All of this has been brought to account.
There is then the non-disclosure by the husband.
On 20 May 2024, the Court ordered the husband to disclose details of any assets with a value of greater than $10,000 acquired or disposed of by the parties since 24 February 2023 (order 2(e)). The wife’s unchallenged evidence is that the husband has not complied with this order. The husband was challenged about not disclosing documents relating to withdrawals from his superannuation account in cross-examination (in circumstances where he admitted withdrawing $10,000 on at least two occasions). His response was to the effect that he could not recall that aspect of the orders.
Further, order 1 of the orders of 8 August 2024 required the husband to produce within seven days of the orders ‘all documents relating to sources of income, compensation, allowance or other financial benefit to him such as personal or workers compensation insurance, payments from employment, contracting, sales or other money received by him for the period from the 1st July 2023 to the date of these Orders.’ The husband produced at trial an email from his insurer of 5 July 2024 but admitted under questioning that he had not sent to the wife documents about insurance.
In all the circumstances, I am satisfied that the husband has intentionally failed to provide disclosure to the wife.
The husband for his part contended that the wife had failed to provide disclosure. He contended that the wife had, inter alia, failed to disclose her long service leave entitlements, and her shares. In respect of these matters:
(a)the shares were clearly disclosed in the wife’s Financial Statement; and
(b)there does not appear to be any failure to disclose long service leave entitlements. True it is that the long service leave entitlements were not included in the wife’s Financial Statement. The husband was aware of the existence of the long service leave entitlements, however, and raised the matter. The wife’s Counsel conceded the long service leave entitlements should be included and provided an up to date figure.
There is another factor to consider in whether the wife intentionally failed to provide disclosure. As I have noted above, a review of the wife’s Financial Statement shows that she made, in my view, genuine attempts to disclose everything she had. Her income is disclosed to the nearest cent (including dividend income). She has disclosed the income of other income earners in her household. She has disclosed an extensive list of bank accounts ranging in value from over $12,000 to accounts holding as little as $2.04. These are not the actions of a person who has intentionally failed to provide disclosure. In fact, the opposite inference may be drawn and I draw it. The wife has gone to extensive lengths to provide up to date, compliant and accurate disclosure of her income and assets. Her attempts to do so stand in stark contrast to the husband’s failure to provide disclosure, or up to date evidence of his financial position.
It is important to recognise the effect the husband’s conduct above has had on this trial. All of the wife’s assets are in the pool and available for division. It is simply not known what assets the husband has that should be included (I observe during the trial, it emerged for the first time he had purchased a piece of equipment). The wife is therefore at a disadvantage because any split of the assets takes account of a list of assets that for the most part, she has supplied.
In summary, the wife has not intentionally failed to disclose her assets or income. The husband has, in my view, intentionally failed to disclose his assets and income and failed to disclose his true financial position by not filing up to date trial material. For the reasons given above, the wife has been placed at a clear disadvantage in this case. The justice of the case calls for an adjustment in favour of the wife under section 75(2)(o): see Jamine & Jamine (No 2) [2012] FamCAFC 104 at [19], [29] and [33] (Thackray, Strickland and Ainslie-Wallace JJ); Hua & Liu [2019] FamCA 732 at [361], [422] (Williams J).
One percent of the net asset pool equates to $6,783.60. Noting the husband’s failure to disclose and his failure to file trial material the adjustment in favour of the wife under section 75(2) of the Act should be 5%.
THE ORDERS
The orders are to reflect an overall division of assets and liabilities (including superannuation) of 55% to the wife, 45% to the husband.
It pays to start with the assets and liabilities each party will keep.
I will make an order that each party retain any personal property in their possession, noting that each has chattels of a similar value.
I will make an order that each party retain their respective motor vehicles to reflect the agreement reached by the parties. For the reasons noted above, the just and equitable outcome is that the husband retain the V Finance loan attached to his vehicle.
Item 2 of the Table of Assets and Liabilities are the chattels at Town E. The husband claimed that many of the items belonged to him before the relationship commenced. It can be inferred he made the greater contribution to them. I asked him whether he wanted to keep them, and he said yes. I asked him whether he wished to keep them and decide what to keep and what to sell in the event that the Town E Property was sold and he indicated he would like to keep them. So, I will make an order that the husband retain the chattels. He can decide whether he wishes to keep them, or dispose of some or all of them.
I will make an order that the wife retain items 3 to 12 in the Table of Assets and Liabilities set out earlier (being her bank accounts, her shares, her long service leave and the S Insurance Policy). She did not suggest the items covered in this paragraph be dealt with in any other way. Similarly, I will make an order that the wife retain the liability at item 14 of the Asset Pool which is in her name.
I will make an order that the wife retain her Superannuation Fund 4 account. She sought this outcome and it was not contested by the husband.
There is then the Town E Property and the loan. The husband sought orders to retain the Town E Property and the mortgage loan attached to the Town E Property, and that the wife retain all of the superannuation. He seeks that the wife remain guarantor on the loan until he can refinance the property completely into his name. I note the husband’s evidence that he derives benefit from residing on the Town E Property and that he will be at a significant disadvantage if the property is sold.
I will not make the orders sought by the husband (or give him the opportunity to retain the Town E Property) for the following reasons:
(a)the Court is required to make orders as far as practicable that will finally determine the financial relationship between the parties and avoid further proceedings between them (section 81 of the Act). The husband’s proposal will not achieve that outcome. Under his proposal, the wife remains guarantor of the loan attached to the Town E Property for a seemingly indeterminate period. Further, the prospect of further litigation between them, given the history of the proceedings and what I have observed, would remain high if the wife were to continue to act as guarantor on the loan;
(b)the husband has adduced no evidence that he will be able to secure a loan in his own name to enable him to retain the Town E Property. In fact, the evidence and circumstances suggest he will not be able to secure another loan to enable him to retain the property. During cross-examination, the husband was asked when was the last time he had approached the NAB about refinancing the mortgage and he indicated that was about two years ago ‘When the last lot of final orders were made’. Asked if he had approached anyone else about a loan, he indicated that he had but that he had been refused;
(c)the husband has adduced no evidence that he has the income or assets that would enable him to pay out the existing loan or buy the Town E Property outright in his own name; and
(d)the division sought by the husband would not produce a just and equitable outcome given my findings and conclusions expressed above.
Given the matters above, the only just and equitable outcome is that the Town E Property be immediately sold and the proceeds (after subtraction of sale costs, commissions and other costs) be divided between the parties to achieve the net overall division of assets I have arrived at earlier in these reasons. Accordingly, I will make an order that the Town E Property be sold.
The wife proposed orders for the sale of the Town E Property that provided firstly for the property to be sold by private treaty and failing that, for the property be sold by auction. No submission was received by either party on the form of these orders. I have read the wife’s proposed orders for the sale of the Town E Property. They were somewhat unclear. I have redrafted them to clarify the orders, but the substance of what the wife sought has been retained.
Finally, there is the parties superannuation. In considering the division of superannuation, I have taken account of the following:
(a)the wife made the greater financial contributions to the parties superannuation;
(b)the husband has been drawing down on his superannuation, though the amount is not clearly quantified;
(c)prior to considering any split, each party starts effectively with superannuation in their pocket. The husband will retain Superannuation Fund 3 balance. The wife will retain Superannuation Fund 4 account. The superannuation to be split is the wife’s Superannuation Fund 1;
(d)both parties will have a need for superannuation when their working lives end. Equally, each needs to be able to access the cash now to re-settle themselves. The husband’s need to rehouse himself will be somewhat greater. He has to vacate his current home for the sale and rehouse himself. The wife, while needing to re-establish herself as well, at least has the benefit of the accommodation she currently shares with her new partner; and
(e)both parties have contributed to the Town E Property.
When the above circumstances are considered, I am of the view that the superannuation split to the husband from the wife’s Superannuation Fund 1 should be 45%. She should retain 55% of what is in her Superannuation Fund 1.
The wife sought orders that she be appointed to undertake certain tasks if the parties could not reach agreement (e.g: the appointment of the real estate agent to conduct the sale of the Town E Property) and also sought orders that a Registrar of the Court be appointed to execute any documents if the husband failed to do so. I note the history of the husband’s non-compliance with Court orders. Given that, and given the small pool which will be eroded further if the wife is required to come to Court, I will make the orders sought by the wife.
I will otherwise make orders that the parties retain, inter alia, other property or liabilities in their possession, insurance policies in their name and forego further claims. I make such order to ensure the financial relationship between the parties is ultimately severed.
Noting the lengthy history of this matter, the costs to the parties and the relatively small pool, I will give the parties liberty to apply with respect to the sale of the Town E Property and the calculation and distribution of sale proceeds.
I have stepped back to consider these orders and I am satisfied that the orders above constitute a just and equitable division of property between the parties.
I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 13 December 2024
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