Roland & Roland (No 2)
[2022] FedCFamC1F 503
Federal Circuit and Family Court of Australia
(DIVISION 1)
Roland & Roland (No 2) [2022] FedCFamC1F 503
File number(s): MLC 765 of 2020 Judgment of: BENNETT J Date of judgment: 12 August 2022 Catchwords: FAMILY LAW- FINANCIAL – ALTERATION OF PROPERTY INTERESTS – where husband’s mother advanced $1.26 million interest free and a further $1.2 million which is not repayable – where husband and wife lived beyond their means- where divisible assets are relatively modest.
FAMILY LAW – FINANCIAL – ALTERATION OF PROPERTY INTERESTS – where there is an absence of valuation evidence in relation to personal property and husband’s pre-cohabitation superannuation
FAMILY LAW – FINANCIAL – ALTERATION OF PROPERTY INTERESTS – two pools – where non-superannuation assets are assessed differently to superannuation interests – where assessment of contribution to non-superannuation interests is assessed at 70/30 in favour of the husband and assessment of s75(2) factors at 25% of non-superannuation property interests in favour of the wife – where disparity in value of superannuation interests attracts a payment of $100,000 by the husband to the wife but no other adjustment.
FAMILY LAW – FINANCIAL – spousal maintenance – where wife did not establish husband has a capacity to pay – where application dismissed.
FAMILY LAW – FINANCIAL – child support – where wife did not establish the 3 steps required by s117 of the Child Support (Assessment) Act 1989 (Cth) – where application dismissed.
Legislation: Child Support (Assessment) Act 1989 (Cth) s 117
Family Law Act 1975 (Cth) ss 75 & 79
Division: Division 1 First Instance Number of paragraphs: 170 Date of hearing: 21 & 22 September 2021, 4 February, 26 & 31 May 2022, 2 August 2022 Place: Melbourne (via MS Teams) Counsel for the Applicant: Mr Dickson QC Solicitor for the Applicant: Coote Family Lawyers Counsel for the Respondent: Ms Dwyer Solicitor for the Respondent: Macgregor Solicitors ORDERS
MLC 765 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ROLAND
ApplicantAND: MS ROLAND
Respondent
order made by:
BENNETT J
DATE OF ORDER:
12 August 2022
THE COURT ORDERS THAT:
Parenting
1.Each of the parties MR ROLAND born in 1974 and MS ROLAND born in 1978 and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of X born in 2014 and Y born in 2017 (“the children”) from the Commonwealth of Australia.
2.It is requested that the Marshall of the Federal Circuit Court of Australia and the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until further order.
Property
3.The parties do all acts and things necessary to ensure that the proceeds of sale of the former matrimonial home at B Street, Suburb C (“the Suburb C property”) be applied as follows:
(a)First to pay all costs, commissions and expenses of the sale, those totalling $53,627.98 (commission, city council, water, PEXA transaction fee and R Lawyers);
(b)Second, to discharge the NAB mortgage and any other encumbrances affecting the property, those totalling $1,047,973.82 (S Finance / T Lawyers, U Lawyers, V Lawyers, NAB);
(c)Third, to pay the sum of $1,260,000 to Ms W;
(d)Fourth, to pay the reasonable costs to Mr Z to attend Court to give evidence;
(e)Fifth the sum of $472,832 to the wife from which the following be deducted and paid to the husband’s solicitors the total of all orders for costs (excluding the Order of 31 May 2022) payable by the wife to the husband which are not yet paid, in the sum of total $25,289;
(f)Sixth, the sum of $100,000 to the wife by way of an adjustment for the disparity in the parties’ superannuation interests.
(g)Seventh, the balance to the husband.
The Roland Family Trust
4.Within 30 days of the date of these Orders the parties do all acts and things and sign all documents necessary to cause the Wife to transfer / assign any loan account entitlement owing to her by the Roland Family Trust to the Husband.
5.The Husband otherwise retain, to the exclusion of the Wife, all of his right, title and interest in the Roland Family Trust, including but not limited to the following:
(a)20% interest in the AA Partnership;
(b)5% interest in BB Pty Ltd (via BB Trust);
(c)Any shares held in listed companies; and
(d)Any money owing to the Roland Family Trust by any individual or entity;
6.The husband indemnify the wife and keep her indemnified in relation to the Roland Family Trust.
CC Pty Ltd
7.Within 30 days of the date of these Orders the parties do all acts and things and sign all documents necessary to cause the Wife to transfer/assign any entitlement she has in CC Pty Ltd to the Husband.
8.The Husband thereafter assume sole responsibility for any loan or liability owing by CC Pty Ltd and keep her indemnified in respect of any liability arising from CC Pty Ltd.
Execution of documents in default
9.In the event that the wife refuses to comply with any requirement in this Order to execute documents, a Registrar of this Court may be authorised pursuant to section 106A of the Family Law Act 1975 to execute the documents on the wife's behalf. An affidavit from the husband's solicitors deposing to the wife's non-compliance shall constitute sufficient evidence of the wife's non-compliance.
Property to be retained by the Husband
10.As and from the date of these Orders, the Husband retain, to the exclusion of the Wife, all of his right, title and interest in the following:
(a)his sale proceeds entitlements following the sale of the Suburb C property;
(b)his shareholdings;
(c)the furniture, chattels and personal effects currently in his possession;
(d)proceeds of his bank accounts;
(e)his interest in The Roland Family Trust, subject to paragraphs 4 and 5 of these Orders
(f)his interest in CC Pty Ltd;
(g)his member balance held within DD Super Fund;
(h)his superannuation entitlements held with Super Fund 1;
(i)Four (4) dining rooms chairs from the Suburb C property currently in possession of the wife;
(j)Two (2) feature chairs gifted by BB Pty Ltd currently in the possession of the wife; and
(k)the Artwork 1 painting currently in the possession of the wife.
11.The wife within 48 hours deliver to the husband at EE Company at FF Street, Suburb GG the personal property described in sub-paragraphs (i) to (k) of the preceding paragraph of this Order.
12.The Husband assume sole responsibility for any loan or liability in his sole name or any liability encumbering any item of property to which the Husband is entitled pursuant to these Orders (the Husband’s debts) and the Husband indemnify the Wife and keep her indemnified in respect of any liability arising from the Husband’s debts and pay those debts as and when they fall due.
Property to be retained by the Wife
13.As and from the date of these Orders, the Wife retain, to the exclusion of the Husband, all of her right, title and interest in the following:
(a)her sale proceeds entitlements following the sale of the Suburb C property;
(b)all and any assets held in her name in Country H;
(c)the furniture, chattels and personal effects currently in her possession including but not limited to her jewellery and handbag collections, save for those items listed at paragraph 10(i-k) of this Order;
(d)proceeds of her bank accounts;
(e)the Motor Vehicle 1 (licence plate …); and
(f)her superannuation entitlements held with Super Fund 1.
14.The Wife assume sole responsibility for any loan or liability in her sole name or any liability encumbering any item of property to which the Wife is entitled pursuant to these Orders (the Wife’s debts) and the Wife indemnify the Husband and keep him indemnified in respect of any liability arising from the Wife’s debts and pay those debts as and when they fall due.
Unspecified personal property
15.Unless otherwise specified in these Orders and save for the purposes of enforcing monies due under these or any subsequent Orders:
(a)each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in their own name or in their possession as at the date of these Orders;
(b)money standing to the credit of the parties in any joint bank account shall be divided equally between them and the account(s) thereafter closed;
(c)insurance policies remain the sole property of the beneficiary named thereon;
(d)each party be solely reliable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
Generally
16.Henceforth the address for service of the wife be noted in the records of the court as HH Street, Suburb C, telephone …, email …@gmail.com and remain so noted unless or until a notice of address for service is filed to the contrary.
17.The correspondence from the husband’s solicitors dated 20 July 2022 to the wife be and is hereby marked exhibit “H10” and remain on the court file.
18.The email dated Friday 22 July 2022 at 3.53pm from the husband’s solicitors to the Court and copied, inter alia, to the wife be marked exhibit “H11” and remain on the court file.
19.I reserve liberty to apply in relation to any alleged disconformity between this Order and my reasons for decision with a view to any error or omission in this Order being rectified, if possible, under the slip rule.
20.The solicitors for the husband serve by electronic means a sealed copy of this Order:-
(a)on R Lawyers;
(b)on Macgregor Solicitors
21.Otherwise, all extant applications be and are hereby dismissed and the matter be removed from the docket of the Honourable Justice Bennett.
AND IT IS NOTED that there has been no hearing on the merits of the wife’s application for the children to travel internationally or the dissolution of the watch list order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Roland & Roland has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J:
Introduction
These are proceedings for the final alteration of property interests between the husband and the wife following the breakdown of their 10 year marriage.
Both parties seek an alteration of property interest consequent upon the breakdown of their relationship. The underlying assumptions about the use of their property which applied during the marriage has been brought to an end by the breakdown of the marriage. Having regard to the property interests of the parties or either of them, I am satisfied that it is just an equitable within the meaning of s 79(2) that there be an alteration of property interests.
Section 79 of the Family Law Act 1975 (Cth) (“the Act”) confers power on the Court to make a property settlement order in respect of parties to a marriage. I will identify the legal and equitable interests of the parties in property. I will assess the contributions of the parties in the various capacities being their financial contributions, non-financial contributions and contributions to the welfare of the family described within the meaning of s 79(4)(a), (b) and (c). I will consider the effect of any proposed order on the earning capacity of either party and the matters referred to in s 75(2) insofar as those matters are relevant. I will consider any other order affecting a party or a child of the marriage and child support.
I have determined that the parties have total non-superannuation interests of $1,510,803 although there is an absence of expert evidence as to the value of the parties’ personal property. The parties’ superannuation interests have a total value of $413,644 held as to $19,638 by the wife and as to $394,000 by the husband. There is no expert evidence to inform the court of what amount of the husband’s current superannuation is attributable to his pre-cohabitation superannuation interests. Doing the best that I can, I find that the parties’ legal and equitable interests in non-superannuation property and in superannuation which, pursuant to Part VIII – Div 1 of the Act, is to be treated as property, has a total value of $1,924,447.
I have determined that non-superannuation assets should be divided in the proportions of 45% to the husband and 55% to the wife. The husband’s superannuation interests are of much greater value than the superannuation interest of the wife. Whereas the wife’s counsel referred to a division of superannuation, neither party has a competent application for a splitting order. I am satisfied that it is proper to adjust the discrepancy between the parties’ superannuation interests by the husband making a payment of $100,000 in liquid funds to the wife and each, otherwise, retain his/her superannuation interests as they stand. In relation to the wife’s applications for spousal maintenance and child support, I decline to make those orders sought or any order.
My reasons for decision were published to the parties on 15 July 2022 with a draft order[1]. I requested that within seven days the practitioners provide me with the final figures from the settlement of the sale of the major asset, the former family home, on 22 December 2021. The solicitors for the husband wrote to the wife on 20 July 2022 to inform the wife of final figures on settlement of the sale. The wife did not reply. The matter was relisted on 2 August 2022 by which time the wife’s solicitors, Macgregor’s, had filed a Notice of Ceasing to Act[2].
[1] The reasons ran to 160 paragraphs and are Exhibit “C2”
[2] Notice of Ceasing to Act filed 8 July 2022
On 2 August 2022 Mr Barrett, solicitor, appeared for the husband. The wife appeared in person with an interpreter provided by the court, Mr JJ. In court, the wife acknowledged receipt of the correspondence of 20 July 2022 which contained the same information as that sent by the husband’s practitioners to the court on 22 July 2022[3]. The husband’s solicitors also provided a draft minute of order[4] which incorporates final figures from completion of the sale and the calculation of a sum certain to the wife and the balance to the husband. The wife had no issue with the final sale figures and calculations provided on behalf of the husband in relation to the net proceeds of sale held by R Lawyers. However, the wife continues to dispute the legitimacy of the loan agreement between the parties and the husband’s mother for repayment of $1.2 million of the $1.26 million in respect of which I have heard evidence and which I have found to be owing to the husband’s mother and repayable from the proceeds of sale of the former family home. In this respect, the wife handed up two single pages of correspondence from LL Medical Practice dated respectively Thursday, 5 November 2020[5] and Tuesday 19 July 2022[6], the latter correspondence refers to “2 report letters” being attached but there were no attachments. The correspondence is not in a form which is admissible as evidence in this proceeding. I marked them as exhibits for the sake of completeness and future reference in the event that the wife wishes to take the matter further. The wife stated that she has retained Macgregor Solicitors to act on her behalf on her proposed appeal against this decision. Following the hearing on 2 August 2022, I revised my reasons to include the up to date information provided and to improve the structure of the reasons. The result is now precise but the decision is the same.
[3] Exhibit “H11”
[4] Exhibit “H12”
[5] Exhibit “W1”
[6] Exhibit “W2”methodili
The parties and the relationship
The husband is 48 years of age having been born in Australia in 1974. He is a part owner of EE Company in Suburb GG and KK Company in Melbourne. He is the General Manager of EE Company. The husband suffers from Asthma and is diagnosed with an autoimmune disease known as … for which he is prescribed medication. The husband deposes that he maintains good health “with few symptoms”.
The wife is 44 years of age having been born in Country H in 1978. She arrived in Australia in 2008 and is a permanent resident. The wife is not currently employed outside of the home and has not been since early 2019. During the marriage and for 13 years the wife was employed by EE Company, partially owned and operated by the husband. Other than suffering from post-natal depression associated with her second pregnancy, for which she is prescribed anti-depressants, the wife is in good health.
The parties met online in 2007 and in person in 2008 when the husband flew to City MM. The wife returned with the husband to Melbourne, Australia where the parties commenced cohabitation in February 2009. The parties were married in 2009 and separated in October 2019.
There are two children of the marriage, X, born in 2014 (8 years old) and Y born in 2017 (5 years old). Both children were conceived with the assistance of in vitro fertilisation (“IVF”). Final parenting orders were made by consent on 17 September 2021 following a Dispute Resolution Conference convened by a Registrar . The orders resolved the outstanding parenting issues save for a dispute as to whether the children’s names should remain on the airport watch list. That issue was resolved by consent with the effect that the children’s names were to remain on the watch list until further order.
In January 2020 the husband moved out of the former matrimonial home into rented accommodation. The wife and the children remained in the former matrimonial home until shortly before it was sold pursuant to consent orders entered into between the husband and wife on 2 June 2021. After vacating the former matrimonial home, the wife resided in rental accommodation paid for by the husband. The wife’s choice of rental accommodation, her vacating the former matrimonial and then vacating the rental accommodation were not without incident. There are several orders for costs made in consequential proceedings which I will describe later as they are relevant events which occurred whilst this decision has been reserved but to which the parties agree I have regard. That includes the interim payments of $100,000 to each of the parties from the proceeds of sale of the former matrimonial home and various orders for costs to be paid by the wife to the husband.
The children live with the mother and spends time with the father five nights per fortnight during the school term and will eventually spend half the school holiday and long summer school vacation with the father. There is also provision for special days. The husband pays child support of $216 per week to the wife.
Neither party has re-partnered.
Parties applications & Ambit of the dispute
The parties agreed that their major asset, the former matrimonial home, was to be sold.
As part of their entitlement to an alteration of non-superannuation assets both parties seek a division of the net proceeds of sale of the former matrimonial home following a discharge of the mortgage held by National Australia Bank (“NAB mortgage”) and the discharge of a loan for litigation funding with S Finance with responsibility for that second liability being treated as an add back of legal fees. Other legal expenses of both parties were also treated as add backs.
There were several matters not agreed in relation to the identification or value of interests in property or treatment of liabilities. These included repayment to the husband’s mother, Ms W, of $1,200,000 which is reflected in a loan agreement signed by the wife, husband and Ms W. Broadly speaking, the husband seeks that the monies owing to his mother be repaid from the proceeds of sale of the home and that the balance be divided as to 40% to the wife and 60% to him. The wife seeks a distribution of 70 % of the net proceeds of sale of the former matrimonial home with the husband assuming sole responsibility for any monies owing to the husband’s mother.
Each party has a superannuation interest. The wife seeks by way of her Amended Case Outline an “equalisation of the parties’ respective superannuation entitlements”. I understood this to be a reference to a potential superannuation splitting order. In her trial affidavit at [154] the wife seeks an order for 75% of the husband’s superannuation entitlements under his self-managed superannuation fund. However, the wife does not have any application for a splitting order before the court. Prior to its inclusion in the wife’s Amended Case Outline, filed the day before the commencement of the hearing, neither party contemplated a superannuation splitting order. As a matter of procedural fairness the wife should have given the husband sufficient notice of the proposed superannuation splitting order. Counsel for the husband said that he would object to any such order on the basis that proper notice was not given. Procedural fairness was not accorded to the superannuation trustee(s). The husband proposes to address the disparity in the parties’ superannuation interests by way of cash adjustment but not so as to reflect an equivalency or equality of entitlement. Counsel for the wife did not seek leave to amend her application to include a splitting order and did not seek a splitting order.
The wife seeks the husband pay ongoing spousal maintenance in the sum of $1000 per week until their youngest child attains the age of 18 or the wife marries, such maintenance to be adjusted annually in accordance with fluctuations in the Australian Consumer Price Index. The wife also seeks an order for child support in the sum of $500 per week per child. The husband opposes any spousal maintenance order and an increase in his child support liability.
The Hearing
The final hearing proceeded electronically over two days. Mr Dickson QC appeared for the husband and Ms Dwyer of Counsel appeared for the wife. The wife had at various times throughout the proceedings been self-represented. At the final hearing, Macgregor Solicitors were appointed pursuant to s 102NA of the Act to act for the wife. The wife gave evidence with the assistance of a NAATI certified Interpreter and at other times gave evidence proficiently without an interpreter.
An electronic court book was prepared and relied upon for the purposes of the final hearing and counsel used it proficiently.
ONUS OF PROOF AND FINDINGS OF FACT
Section 140 of the Evidence Act 1995 (Cth) provides the relevant test for the Court’s assessment of evidence in this matter: the facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities.
A statement of fact, including the aforementioned jurisdictional facts, is a finding of fact.
These reasons identify my factual findings and the matters which inform the exercise of my discretion according to the statutory framework.
Evidence relied upon
The parties jointly relied on the affidavit of a single expert, Mr Z, filed 17 September 2021, annexing a business valuation report dated 9 March 2021. Mr Z gave oral evidence at the final hearing and the parties agreed that the cost of Mr Z giving evidence would be shared equally.
The husband relied on the following:
(a)An Outline of Case filed 20 September 2021;
(b)Trial Affidavit of the husband filed 6 August 2021;
(c)Financial Statement filed 6 August 2021;
(d)Reply Affidavit of the husband filed 9 September 2021; and
(e)Affidavit of Ms W filed 17 September 2021.
The wife relied on the following:
(a)An Amended Outline of Case filed 20 September 2021;
(b)Trial Affidavit of the wife filed 10 September 2021; and
(c)Financial Statement filed 10 September 2021.
Both parties were cross-examined as was the husband’s mother, Ms W and the husband’s business partner Mr NN.
Relevant history
In or around 2002 the Roland Family Trust was established as a discretionary trust under which the principal beneficiaries were the husband and the husband’s mother. The parties’ two children were later added as secondary beneficiaries under the Trust.
The parties commenced cohabitation in February 2009 at a property owned by PP Company at QQ Street, Suburb OO (“Suburb OO property”). The parties lived in the property for approximately 18 months, rent free. The wife deposes, and the husband denies, that the husband told her he owned the Suburb OO property. The wife did not press any issue about the Suburb OO property.
During the course of the marriage the husband derived a salary from EE Company and was in receipt of distributions from the Roland Family Trust. The husband is the Director, Secretary and a shareholder of the corporate trustee of Roland Family Trust. The husband’s income from his shares in KK Company are paid into The Roland Trust.
The husband is also one of three directors of a private agricultural company, operating under the name CC Pty Ltd (“CC Company”). CC Company was registered in 2004. The other two directors of CC Company are the wife and the husband’s mother who is also the company secretary. The husband also has a minority interest in the AA Partnership.
The husband’s mother, Ms W, figures prominently in these proceedings due to her financial support of the parties. Ms W is 72 years of age. She was a single mother after separating from the husband’s father when the husband was 3 years old. The husband is an only child. The husband’s mother operated a successful business which she grew over 10 years and subsequently sold. Her evidence is that she accrued her wealth “through hard work” having built her business over a long period of time. The husband’s mother re-partnered when the husband was 18 years of age with Mr RR to whom the husband refers to as his “step-father”. The husband’s mother and Mr RR were in a de-facto relationship for some 30 years until Mr RR’s death in 2018. The husband’s mother is now semi-retired. The husband’s mother was cross examined and impressed me as a truthful, gracious woman of considerable business acumen and generous disposition.
In May 2010 the parties purchased a property at B Street, Suburb C (“the Suburb C property” and “former matrimonial home”) for $1,835,000 in their joint names. The deposit of $183,500 was paid by the husband’s mother and is agreed by all to have been a gift. The parties secured a mortgage over the property with the National Australia Bank of approximately $860,000. The husband’s mother loaned the parties $800,000 by taking out a mortgage the home she owned with Mr RR. In 2017 the husband’s mother advanced the parties a further $400,000 to reduce the mortgage and reduce household expenditure. As at August 2021 the husband’s mother was continuing to pay the mortgage on her property which was security for the monies she borrowed and made available to the husband and the wife.
The husband alleges that his mother made other payments to the parties during the course of their marriage totalling $1,200,000 in the following amounts:
(a)$183,000 being the deposit towards the purchase of the Suburb C property (agreed to be characterised as a gift);
(b)Approximately $600,000 towards the cost of three wedding ceremonies/events in Australia and Country H (the wife denies this) ;
(c)$20,000 for the cost of the wife’s 40th birthday party hosted by KK Company (the wife qualifies this);
(d)$68,000 for a Motor Vehicle 2 for the wife in 2009;
(e)$124,000 Motor Vehicle 1 for the wife in 2017; and
(f)$250,000 for the construction of a pool and landscaping to the Suburb C property in 2015;
(g)Approximately $100,000 in IVF treatments (the wife denies this);
(h)Mortgage payments of $2,905 per month between July 2014 and July 2015, totalling approximately $34,857 as well as servicing the mortgage she had taken out to lend the parties $800,000; and
(i)gifts of cash as well as expensive handbags and jewellery for the wife.
The evidence of the husband’s mother supports the husband’s case. The wife agrees the husband’s mother gave the parties a further $1,200,000 or thereabouts throughout the marriage. The wife denies that the husband’s mother paid for all the wedding ceremonies and maintains that she, being the wife, personally contributed to the cost of the ceremonies as well. The wife contends that her 40th birthday event hosted by KK Company was good marketing for the business’ portfolio and promotional material and that she was encouraged by the husband and husband’s mother to host the party for that reason. The wife denies that the husband’s mother paid for the IVF treatments and believes that it was paid out of the parties joint accounts. The wife agrees the husband’s mother was generous with gifts including gifting sums of money, holidays and expensive presents.
In 1995 the husband was appointed a director and secretary of PP Pty Ltd (“PP Company”). The other directors were his mother and Mr TT. In 2011 the husband became a non-beneficial owner of one of the two shares in PP Company along with his mother. The husband maintains that he held the shares in PP Company beneficially on behalf of his mother. In 2016 the husband transferred his share in PP Company to his mother making her the sole shareholder. The husband’s evidence is that he is not aware of whether he remains a director and secretary but that he does not think he is. The husband maintains that he is not in receipt of any benefits from PP Company. The wife alleges that the husband is still a shareholder in PP Company and asserts that the husband is diminishing the assets available for distribution between them by transferring his shareholding in PP Company to the husband’s mother. The wife deposes that as far as she is aware PP Company has assets of “at least $2 million” and that it is owed $599,961 from CC Company. The wife did not press this in closing addresses.
In 2015 the husband became a member of his mother’s self-managed superannuation fund, the DD Super Fund (”DD SMSF”).
In 2016 a property located in UU Town (“UU Town property”) was purchased. There is a dispute as to who purchased the property; the husband and/or the husband’s mother. The wife’s outline of case records that in 2016 “the parties purchased the UU Town property with the husband’s mother for the purpose of operating a business therefrom in conjunction with the parties’ other business ventures.” The wife claims, and the husband denies, that the husband led her to believe it was purchased as a joint venture between the husband and the husband’s mother. The husband maintains it is solely owned by the husband’s mother. His mother’s evidence is that the property is hers. The UU Town property is owned by the husband’s mother, Ms W via a trustee company holding the property on trust for the DD Self-Managed Super Fund.
In 2017 and following the birth of the parties second child the wife was diagnosed with post-natal depression and prescribed anti-depressants.
In 2017 the husband’s mother gave the parties $40,000 in order to reduce the balance owing on the mortgage encumbering the Suburb C property.
The husband contends that on 11 September 2017 the parties executed a loan agreement in the sum of $1,200,000 which was the $800,000 paid in 2010 and the $400,000 paid in 2017. The wife disputes the validity of the loan instrument on the basis she did not fully understand its contents when she signed it. By the terms of the loan agreement the parties were to repay the husband’s mother on sale of the Suburb C property. There was also a clause that enabled the husband’s mother to call upon repayment of the loan so long as she gave the parties six months’ notice. The Loan Agreement appears as an annexure “H-14” to the husband’s trial affidavit dated 6 August 2021. The husband and wife’s signature appear on the document as well as a witness signature by one of the husband’s business partners, Mr NN. The wife admits to signing the loan document but disputes the validity of it as she says she did not understand it and believes the two payments were a gift. The circumstances under which the wife signed the loan document was the subject of evidence. The wife, in her affidavit filed 10 September 2021, deposes that the husband asked her to sign the loan agreement at a time when she was suffering from post-natal depression. The wife claims she trusted the husband with these matters and that it was usual for her to sign documents that the husband would put in front of her. The wife claims that there was no witness to her signature despite the fact the document now appears to have a witness signature. To the extent the wife claims she did not understand the loan document she explains that English is not her first language and that at no point was the document translated to her or explained by a solicitor or accountant.
Mr NN is the husband’s business partner. Mr NN’s evidence was that he did witness the signing of the loan agreement on 11 September 2017 at the offices of EE Company. He denied the wife’s assertion that he affixed his witness signature to the document at a later date. Mr NN did not recall being present during discussions between the parties as to the effect of the agreement. Mr NN confirmed the wife was present for the signing of the loan agreement and recalls this on the basis it was a rare occurrence that the wife was in the office. Ms W confirmed that she, the husband and wife as well as the witness were all present at the singing of the loan document.
I accept the evidence of Mr NN, the husband and the husband’s mother over the evidence of the wife. I found each of them to be truthful witnesses. The wife’s contrary evidence is not necessarily given dishonestly but I regard her as being inaccurate in this instance.
Between September 2017 and August 2018 the husband’s mother paid the husband $2,500 per month, being a total of $30,100, so that the husband could sacrifice a portion of his wage in order to increase his superannuation entitlements.
In the period of 2017 and 2018 the wife travelled to Country H to care for her sick mother. In early 2019 the wife’s mother passed away. The husband deposes that the maternal grandmother’s estate was to be divided between the wife and her brothers. The husband contends that there is an ongoing dispute over her mother’s estate in Country H. The wife claims that her mother’s estate was worth approximately $100,000AUD but that any interest she once had in her mother’s estate has now been taken over by her brothers and step-mother. The wife maintains that as a result she has no claim to her mother’s estate.
The husband alleges that in January 2019 the wife, without his consent, spent $30,000 repairing the roof of her mother’s home, “maxed out” the parties’ shared credit cards and withdrew all the cash in their shared bank accounts in order to fund further renovations. The wife agrees that some money was used to repair the roof as it was damaged but maintains that the husband was aware and agreed to it. The wife claims that the $30,000 to which the husband refers was spent on airline tickets, accommodation, medical treatments for the wife’s mother and expenses in Country H over a number of years. The wife maintains the husband and his mother were aware and consented to the use of these funds.
Throughout 2019 the wife made four visits to Country H to visit with family and friends. The husband accompanied the wife on two out of the four trips. The husband claims that whilst in Country H the wife withdrew a further approximately $30,000. The husband deposes that he is unaware how the funds were applied.
During the height of the COVID-19 pandemic in 2020 the husband temporarily relocated to the UU Town property on medical advice that he was at a greater risk of developing severe COVID-19 symptoms. The paternal-grandmother allowed the husband to live in the property rent-free.
In January 2020 the husband moved out of the former matrimonial home into a rental property at VV Street, Suburb C for 12 months.
On 23 January 2020 the wife redrew $10,000 from the parties’ mortgage account leaving $500 available for redraw. The husband alleges the wife also withdrew $2,000 from the parties shared bank account and that he is unaware of how the funds were applied. The wife claims she withdrew $1,000 from the joint account which she says was spent on legal fees, property valuations and living expenses.
In January 2020 the husband initiated proceedings in relation to the parenting aspect of the dispute which has now resolved by consent. In September 2020 the matter was transferred from Division 2 to Division 1 of this Court. In November 2020 a Registrar made orders which, inter alia, secured the parties attendance at a private Mediation, secured their attendance upon Dr WW for the preparation of a Family Report and their engagement of Mr Z for the purposes of valuations of the relevant entities.
In April 2020 the wife applied to Centrelink for a parenting payment but found out in September 2020 she was unsuccessful. The wife claims that she was advised by one of her previous lawyers to wait until after settlement to make a further application to Centrelink. The wife is currently in receipt of a Family Tax Benefit of $230 a fortnight.
On 23 February 2021 the husband solicitors wrote to the wife’s solicitors proposing to allocate $60,000 of the $120,000 advanced by S Finance to the parties by way of part property settlement. In correspondence dated 22 March 2021 the wife, through her lawyers, agreed to the terms of the proposal. The husband has subsequently applied and is awaiting approval to extend the borrowings from S Finance to $200,000. I do not know whether the extension was granted. However, at the hearing on 2 August 2022, it was confirmed that all the money due to S Finance had been repaid from the proceeds of sale of the former matrimonial home.
The wife deposes that since separation and prior to April 2021 she was in receipt of child support from the husband of $170 per week which has subsequently increased to $216 per week. Taking into account the wife’s Centrelink benefit she is currently in receipt of a post separation income of $331 per week. The wife deposes to having received loans to a total of $35,000 from family members in Australia and Country H which she claims has been spent on living expenses and/or legal fees.
The husband deposes that during separation and between October 2019 and April 2021 he met the expenses of the wife and children as follows:-
(a)$5,500 per month in mortgage repayments on the Suburb C property, until the moratorium was granted in May 2020 (agreed by the wife);
(b)The outgoings and utilities on the Suburb C property including Foxtel and internet (the wife maintains the husband did not pay for the internet, phone and Foxtel from mid-2020 until August 2021 when she moved into the rental property as it was not working);
(c)The wife’s mobile phone (the wife agrees her mobile is paid for by the husband’s business);
(d)The children’s child-care and school fee’s (agreed by the wife);
(e)The children’s extra-curricular expenses (the wife maintains she pays for X’s tutor); and
(f)$450 a week in general living expenses of the mother and children.
I made orders on 12 April 2021 which provided, inter alia, that the parties do all acts and things to facilitate the Suburb C property being sold by auction on or before 21 August 2021. By Paragraph 5 of the Order the wife was to nominate three Real Estate agents to conduct the sale of which the husband would select one.
On 23 April 2021 the husband caused his lawyers to write to the wife’s lawyers requesting the nominated Real Estate Agents who would conduct the sale but received no response. The husband’s lawyers made the request again on 28 April 2021 by way of correspondence to the wife’s lawyers but received no response.
In May 2021 the husband leased a property in Suburb XX where he now lives full-time. The husband’s mother owns the property. The husband pays rent to the husband’s mother in the amount of $600 a week. The husband’s mother claims the husband has missed payments of rent “a couple of times” but assures that he has always “made it up”.
By way of an Application in a Case filed 11 May 2021, the husband sought that he be permitted to elect a Real Estate Agent to conduct the sale of the former matrimonial home.
On 2 June 2021 it was ordered by consent that the parties engage D Real Estate to oversee the sale of the Suburb C property. A costs order was also made against the wife on scale. The Suburb C property was listed for auction on 7 August 2021.
At a hearing on 6 July 2021 the husband’s counsel made an oral application as previously foreshadowed that, among other matters, the husband be permitted to have conduct of the sale of the Suburb C property.
I made orders in July 2021 that the wife do all the necessary acts and things to authorise the sale of the Suburb C property including the wife vacating the property upon the husband securing appropriate rental accommodation and storage. Paragraph 7 of the July 2021 Orders required the husband to secure rental accommodation for the wife and children. The Order required the rental to have at least three bedrooms and be within 5kms of the children’s primary school. By correspondence from his lawyers on 8 July 2021 the husband put forward 5 rental properties for the wife to choose from and sought her input. On 12 July 2021 the wife wrote to the husbands lawyers proposing four different rental properties.
On 4 August 2021 the husband filed an urgent application in a case requesting a warrant for possession of the Suburb C property.
On 13 July 2021 the husband, through correspondence from his lawyers to the wife’s lawyers, agreed to secure the Suburb K rental property nominated by the wife. On 16 July 2021 the husband secured the rental on a six-month lease commencing 19 July 2021.. The rent was $3,476 a month and $3,476 for the bond. The husband borrowed money from his mother to cover the rental expenses.
By a letter dated 16 July 2021 the husband’s lawyers confirmed with the wife’s lawyers that the Suburb K rental had been secured and attached the executed Rental Agreement.
On 19 July 2021 the husband sent an email to D Real Estate, copying in the wife. The email was to confirm that the wife would collect the keys to the rental from the D Real Estate Suburb C office. The wife replied to the email, copying the husband saying:-
Thanks but I never said I am going to move to that property.
I never got the chance to look at it and for many consideration plus the covic-19 (sic) lockdowns and the high risk of this deadly virus and so on I must say thank you for your time but for the sake of my children, their safety, health and life so children and We are not taking that property for rental.
Ps. I’m not going to pick up anything as what but [Mr Roland] stated.
On 21 July 2021 the husband secured a storage facility for the furniture from the Suburb C property for $176 per month. The husband’s lawyers forwarded the storage facility agreement to the wife’s lawyers requesting confirmation the wife would vacate the Suburb C property within 10 days. No response was received.
On 6 August 2021 the husband filed an Amended Case Application seeking the wife comply with the order to vacate the former matrimonial home and in the event of non-compliance a warrant of possession be issued in respect of the property.
The renovations and landscaping undertaken on the former family home were the subject of evidence. The husband’s evidence was that his mother paid $250,000 of the landscaping costs and the parties contributed $50,000 of their own money in the hope that it would increase the value of the family home upon sale. Whilst residing in the former matrimonial home the wife had the bamboo cut down from around the swimming pool. The husband claims the wife’s removal of the bamboo decreased the value of the home. There was no evidence quantifying the alleged loss.
In August 2021 the wife and children vacated the former family home and moved into the rental property in Suburb K on a six-month lease organised and paid for by the husband. $60,000 was advanced from the husband’s mother to the father in order to secure the rental property in Suburb K and to prepare the Suburb C property for sale. The husband’s contends that the $60,000 is repayable to the husband’s mother upon settlement of these proceedings and I accept that is the case. The $60,000 is in addition to the $1,200,000 dealt with in the loan agreement which was witnessed by Mr NN on 11 September 2017.
The final hearing of this matter proceeded before me on 21 September 2021 for two days.
The former matrimonial home was sold subsequent to the final hearing and settlement was effected on 22 December 2021.
Solicitors for the husband contacted my Chambers on 1 February 2022 seeking a mention of the matter in circumstances where the wife was refusing to release the net proceeds of sale of the former matrimonial home held for the parties in trust. The matter proceeded to mention before me on 4 February 2022 where I ordered that each party receive $100,000 by way of part property settlement. In any event, the wife agreed to an order in those terms. The husband made application for an order for costs but I was ultimately not satisfied that the circumstances justified a costs order being made. My reasons for decision were published under case neutral citation [2022] FedCFamC1F 153.
By his Application in a Proceeding filed 16 May 2022 the husband sought that the wife pay the outstanding amount of $1,574.24 owing to Q Real Estate being outstanding rent and the cost of the bond. I mentioned the matter on 25 May 2022 whereby I adjourned the proceedings, at the wife’s request, to an interim defended hearing on 31 May 2022. On 31 May 2022 I made orders, by consent, that the husband pay the monies owing to Q Real Estate ($1,574.24) and be reimbursed for same and that the wife pay the husbands costs of and incidental to the application (fixed in the sum of $3,500) with such sums (being a total of $5,074.24) to be categorised as part-property distribution to the wife.
Legal and equitable Property interests of the parties or either of them
Evidence was directed to several matters in dispute between the parties in relation to the assets and liabilities divisible between them. There was agreement as to the identity of the non-superannuation assets between the parties save for the UU Town property and the inclusion of PP Pty Ltd which is no longer pressed by the wife. The major controversies were in respect of the following:-
(a)The valuation of the wife’s motor vehicle;
(b)The valuation of the wife’s jewellery and handbags;
(c)The valuation of the home contents;
(d)Whether the loan accounts in related entities are recoverable;
(e)Add backs;
(i)Husband’s Swiss watch;
(ii)NAB receipt;
(iii)Loan monies repaid by EE Company;
(iv)Sale proceeds of the husband’s motor vehicle; and
(v)Motor Vehicle 2 sale proceeds.
(f)The $1.2 million owing to the husband’s mother. The wife acknowledges receipt of the funds but denies that the funds were a loan and are repayable.
The liabilities which are agreed include the loan secured by mortgage over the family home and the S Finance loans. The difference as far as liabilities were concerned was the loan from the husband’s mother.
Mr Z, accountant, was appointed to prepare an expert valuation report in respect of which he was briefly cross-examined. By way of a joint letter of instruction dated 3 December 2020 Mr Z was engaged to value the parties interests in the following entities:
·Roland Family Trust;
·BB Trust;
·CC Pty Ltd;
·The AA Partnership;
·YY Pty Ltd;
·DD Super Fund; and
·ZZ Pty Ltd.
The report of Mr Z was undertaken in March 2021 based on relevant figures from June 2020. Part of Mr Z’s valuation involved a projection of future earnings of some seven months with respect to the AA Partnership and KK Company. In his oral evidence Mr Z acknowledged that the business figures were on a downward trend as a result of the Covid pandemic and that, if it weren’t for the pandemic, some of the entities would have been attributed a higher valuation.
Mr Z was cross-examined on the recoverability of the loan accounts under the Trust.
According to Mr Z’s valuation report at [12.9] the overall value attributable to the parties is a joint asset of $178,184 in the Roland Trust, a joint liability of $227,457 in CC Company and an accrued benefit to the husband of approximately $374,709 in the DD SMSF.
The value of the parties’ respective interest in BB Trust of $413,530 and the AA Partnership of $450,000 was used to arrive at the values for the Roland Trust and DD SMSF as the parties do not hold a direct interest in those entities.
Due to its loan liabilities to PP Company Mr Z determined the net position of CC Company to be insolvent. Mr Z concludes at [12.7] that YY Pty Ltd and ZZ Pty Ltd operate solely as trustee entities and therefore have no value.
I accept Mr Z’s evidence.
The parties, through their respective counsel, agreed that Mr Z’s fees for attending to give evidence would be deducted from the proceeds of sale of the former matrimonial home prior to distribution to either party.
Repayment of $1,200,000 to husband’s mother
The husband seeks to have a loan in the amount of $1,200,000 attributable to his mother, Ms W, treated as a liability and repaid from the property divisible between the parties. The wife concedes the monies were advanced but does not concede the advance was by way of a loan or that $1,200,000 is repayable to the husband’s mother. On 11 September 2017 the parties and the husband’s mother entered into a Loan Agreement for the total amount of $1,200,000. The agreement appears as annexure “H-14” to the husband’s trial affidavit dated 6 August 2021. It is 3 pages long. I have already made a finding that the wife signed the loan agreement on the date it was witnessed. The loan agreement provides that the husband and wife will repay the $1,200,000 to the husband’s mother:-
3.1 If the Property is sold, in which case the Loan will be repaid on the completion of the sale of the Property unless the Lender waives in writing the obligation to repay the Loan in those circumstances; and
3.2 At the expiration of six months after the Lender giving the Borrowers written notice to repay the Loan and it is a specific pre-condition to the obligation to repay the Loan arising under this clause 3.2 that the Lender gives written notice requiring repayment of the Loan.
The husband’s mother’s evidence was that she did not have the parties sign a formal loan agreement initially because she “trusted [the husband] 100%” and that it was “always acknowledged as a loan”. Ms W confirmed that she, the husband and wife as well as the witness were all present at the signing of the loan document. The husband’s mother claims there were two iterations of the loan agreement, one drawn up some years prior and before the second tranche of funds were provided. The further draft loan document was not executed. The husband’s mother claims she tried to encourage the parties to live within their means and budget. It was on this basis that she stated that she lent the parties money to apply in reduction of the capital owing under the home mortgage and to lower their mortgage repayments to get them to a position where they could live within their means. The husband’s mother’s evidence is that she now wishes to be repaid.
I do not accept the submission of the wife’s counsel that the $1,200,000 owing to the mother ought to be the sole responsibility of the husband because it is never likely to be repaid. Repayment has been demanded. Mrs W gave convincing evidence of her immediate need for the funds.
A further $60,000 was advanced to the husband by his mother post-separation and is to be repaid from the proceeds of sale of the home as referred to in [73] above.
I am satisfied that the sum of $1,260,000 is properly owing to the husband’s mother and must be repaid.
Roland Family Trust
The husband seeks that the wife’s entitlements under the Roland Family Trust and its related entities be transferred to the husband and that the husband be permitted to retain his interest to the exclusion of the wife. The wife seeks a disbursement of $120,908 from the Roland Family Trust of her unpaid trust entitlement. Mr Z’s evidence was that the wife’s unpaid trust entitlement was not recoverable from the trust because of lack of funds. There was the following interchange:
HER HONOUR: …in relation to the trust there is…There are unpaid trust entitlements. And I think the husband ..... something like 161,000 and in round figures the wife’s are about 120,000. Do you recall that?‑‑‑Yes, that’s right.
Okay. And taking those into account, I think, in your valuation you came up with a negative figure there for the trust. Is that right?‑‑‑Yes, that’s right.
Okay?‑‑‑Just over 100,000 overall because ‑ ‑ ‑
103,000?‑‑‑ ‑ ‑ ‑ the trust can’t actually pay those in full and all it can realise is about 178,000 from memory.
So ‑ ‑ ‑?‑‑‑Based on the values used.
What do we do to reconcile it all? Because we’re not thinking of taking down the whole deal to pay unpaid trust entitlements. Is the answer to disregard the unpaid trust entitlements but then inflate what you’ve got – you reduce the amount of liabilities that you take into account, which would then put you back in the black?‑‑‑I would say that you prorate the balance in pro rata; between the parties. So if the entitlements were 180 and 120 then you would use an 18 over 30 for one and a 12 over 30 for the other multiplied by the value of the net assets.
All right. Now, when it comes to repaying it, there’s no where obvious out of which the cash comes; that would just have to be an adjustment against the person who retained the interest, wouldn’t it?‑‑‑Indeed. And that would be realised over time, but that’s correct.
I accept that the wife’s unpaid trust entitlement is not recoverable in isolation to the parties’ interest in CC Pty Ltd and the husband’s unpaid trust entitlement.
Wife’s Motor Vehicle 1
The wife has a Motor Vehicle 1 which she says is worth $65,000. The husband says it’s worth considerably more. Neither party submitted expert evidence as to valuation. I will take the wife’s admission as a statement against interests and attribute a value of $65,000 to her vehicle.
Wife’s jewellery and handbags
The wife acquired a number of expensive handbags during the marriage. Some have been sold, some are placed for sale on consignment and some are retained. None were valued. No details of sale proceeds were in evidence. Some were gifts from the husband’s mother. The wife attributes a value of $20,000 to jewellery and handbags in her financial statement. The husband contends that the items are worth considerably more but concedes (sensibly in my view) there is no evidence that can sustain the contention. Counsel for the wife says that the wife’s estimate at value at $20,000 an “overvaluation”. The wife’s financial statement is a document drawn by her solicitors on her instructions and verified by the wife in affidavit. The husband is entitled to rely upon the wife’s sworn evidence. I take the wife’s financial statement as an admission against interest and attribute $20,000 to the value of the handbags and jewellery, excluding watches.
The wife has a designer watch in her possession worth $26,000 which she intends to give to her daughter one day. The wife had a designer ring at separation. The husband claims is that it is in the wife’s possession. The wife’s evidence is that she lost it on a friend’s boat and that the husband made an insurance claim and kept the proceeds.
The husband was gifted a Swiss watch from his mother for his 40th birthday. The wife concedes that she disposed of the husband’s Swiss watch post separation to raise money for her legal costs and living expenses. The wife was unable to recall when she sold the watch but remembers she gave it to a friend’s son, Mr AB on account of having borrowed money from the AB family to pay legal costs. The wife’s evidence was that the husband’s watch was given in payment of the debt owing. The wife claims the AB family loaned her approximately $20,000 in cash in two instalments which she deposited into her CBA bank account. The wife’s evidence was that the Swiss was accepted by the AB family at a value of $6,000. The husband says that the watch is worth $12,000. Neither party had expert evidence as to value. No member of the AB family gave evidence. The wife did not adduce evidence that AB family members were not available to give evidence. The husband proposes that $10,000 of the wife’s entitlement to an alteration of property interests be held back until the wife secures the return of the husband’s watch and delivers the watch to him. Counsel for the husband referred to holding back $10,000 as “incentivising” the wife to recover the watch in as much as the wife will receive $10,000 if she delivers the watch to the husband. However, the $10,000 is money to which the wife is otherwise entitled so it is really a penalty of $10,000 in relation to the husband’s loss of a watch. There is no admissible evidence that the watch is worth $10,000. The wife elected to dispose of the husband’s watch, without any reference to the husband, in a nebulous transaction for an unverified sum or benefit. At the same time, the wife kept her own watch which she says is worth $26,000 and which was a gift to her from the husband’s mother. The wife’s action was spiteful but I do not consider that it would be proper to make the order sought by the husband.
Notably the husband did not seek the inclusion of the wife’s designer watch in the value of jewellery retained by her. I presume that he considers that the wife will be true to her word and pass the watch to their daughter. Alternatively, as the designer watch was a gift by the husband’s mother to the wife it is not an item that is divisible between them.
Household furniture and the husband’s watch
The husband estimated the value of the furniture and household effects retained by the wife at $50,000 and the furniture and household effects retained by him at $5,000. The wife estimates the value of her household effects at $20,000. Neither party has a valuation of anything. I will take the evidence from the parties’ financial statements, described above, as statements against interest. Accordingly, the wife’s household effects will be valued at $20,000 and the husband’s will be valued at $5,000.
Out of the furniture and chattels remaining at the Suburb C property the husband sought to retain four leather dining chairs, two art deco feature chairs and one painting gifted by the husband’s mother.
The wife’s evidence was that out the furniture and chattels sought be retained by the husband she had already returned the four leather dining chairs. In respect of the two art deco feature chairs the wife sought to retain one and give the husband the other. The wife refused to return the painting on the basis it was a present gifted to both parties for their birthdays.
The evidence about furniture is imprecise to say the least. It is not possible to attribute value to the items sought to be retained by the husband as a proportion of what has been retained by the wife. I am required to make a division of property which is proper in all of the circumstances. The wife concedes that the husband can have the four leather dining chairs. I am satisfied that it is proper that the husband should have the pair of art deco feature chairs because they are in fact a pair. I am also satisfied that it is proper for the husband to have the painting on the basis that it was a gift chosen by his mother. I am mindful that it was for the occasion of the birthday of the husband and the wife, but if it has to rest somewhere, it should be with the husband given that it emanated from his side of the family. I am also mindful that the wife has retained most of the household furniture and effects from the former matrimonial home and her designer watch valued at $26,000. As I will later describe, the wife disposed of the husband’s Swiss watch without his knowledge or consent. I will order that the wife deliver such of those items to the husband within a short time frame.
NAB receipt
The wife’s evidence is that whilst she and the husband were still living together and towards the end of their relationship she found a receipt to a NAB account in the husband’s pocket. Her evidence is that the account pertained to the husband the balance of which was $154,203. The wife took a photo of the receipt and later sent it to her lawyers as she was suspicious of the husband at that time and now believes the husband to be withholding certain accounts in his name. The wife contended that the husband should be treated as having retained the $154,203.
The husband was shown the NAB transaction receipt. Counsel for the wife sought to tender the receipt in support of the wife’s claim the husband was withholding his bank accounts. The bank receipt was largely unintelligible. The account holder was not visible nor was the account number. In any event, based on the account balance of $154,203 which was capable of being made out, the husband denied it was an account that pertained to him.
No document was tendered. I make no finding in relation to the receipt.
Liquidated assets post separation
The husband admitted to liquidating assets in order to meet certain expenses following separation. Since separation and in order to meet the parties’ collective expenses, the husband deposes that he:
(a)sold shares in January 2020 which was paid into the parties mortgage account in order to pay the mortgage over the coming months.
(b)Drew down $20,000, being $10,000 in the financial year ending June 2019 and a further $10,000 in the June 2020 financial year from his member balance with DD SMSF;
(c)Called upon the repayment of a loan of $15,000 to EE Company; and
(d)Sold by private sale to his mother his Motor Vehicle 3 for $50,000.
Between February and May 2020 the wife sold the Motor Vehicle 2 purchased for the wife as a wedding gift by the husband’s mother. It is agreed that the wife received approximately $12,000 in proceeds from the sale. The wife also disposed of the husband’s Swiss watch in partial repayment of a loan to a friend’s son named Mr AB for, she said, $6,000. It is the wife’s evidence that the proceeds were used towards legal fees and general living expenses.
The wife claims that since separation the husband has dissipated assets by:
(a)selling $55,907 worth of shares in CommSec and YY Pty Ltd;
(b)withdrawing approximately $60,000 from the parties home loan; and
(c)purchasing a new car.
The husband’s position is that post separation he had to provide for two households and that capital was applied to living expenses. I accept that is the case.
The husband contends that the wife has not been forthcoming in regards to the disclosure of her Country H assets. The husband contends that the wife has multiple bank accounts, a share portfolio and interest in properties in Country H. The wife admits that she historically had multiple Country H bank accounts but they were closed shortly after moving to Australia. The wife maintains that since cohabitation she has had one bank account in Country H which now has a balance of zero. The wife admits to drawing down on her Country H bank account post separation. In regards to the wife’s shareholding, she deposes that she has not had access to her share account for many years and that the most recent statement she has is from 2015 which shows a nominal shareholding of approximately AUD $450. The husband contends that the parties lent the wife’s brother’s money over the course of their marriage and that some but not all of the debts were repaid directly into the wife’s Country H bank accounts. The wife maintains the monies were repaid in full, applied for the benefit of the family so that none of the monies now remain. The wife’s evidence about her finances in Country H was vague and not particularly convincing. That said, counsel for the father ultimately conceded that no value could be attributed to funds that the husband suspects the wife had but could not prove. I am satisfied that the wife had the modest amount of property which she claims she had at the commencement of the parties’ cohabitation.
I am satisfied that the parties are liable to pay $1,260,000 to the husband’s mother.
Initially each party sought add backs against the other. Ultimately, it was apparent that each party had liquidated assets post separation for payment of legal expenses and family expenses. Legal expenses are a category of expenditure which can and should be added back. I will add back the legal costs.
The concept of adding back monies reasonably disposed of and not spent on legal fees is the exception rather than the rule. The parties were entitled to reasonably conduct their affairs post separation in a manner that was consistent with properly getting on with their lives. Prior to separation the parties lived beyond their means. As indicated, I am satisfied that they continued to live beyond their means. On an interim basis, the husband contended that the rent and other expenses required by the wife to be paid before she would vacate the former family home were unreasonably high. However, they were payments he was prepared to make to secure vacant possession of the property for the purpose of sale. It was expedient for the husband to do so. I am satisfied that the monies which were expended in supporting two households post separation are not monies that it would be appropriate to add back against either party.
During the hearing, the Suburb C property was treated as having a current market value of $3,200,000. In fact, it sold for a higher price after the evidence was concluded and my decision was reserved. I am informed that the sale price was $3.4 million and the adjusted proceeds of sale were $3,401,877.61. Disbursements for costs, commission and expenses of the sale paid from the net proceeds amounted to $53,755.12, calculated as follows:
DISBURSEMENTS VALUE Commission $45,747.00 City Council $3,627.00 Water $252.89 PEXA transaction fees $245.52 R Lawyers $3,882.71 Total $53,755.12
Accordingly, from the net proceeds of sale of $3,402,877.61 there must be deducted disbursements of $53,755.12. Other monies were paid at settlement to secure a discharge of mortgage and to pay the parties’ legal costs. Those monies totalled $1,047,973.82, made up as follows:-
LIABILITY VALUE T Lawyers (S Finance loan of $260,000) $264,741.32 U Lawyers $10,744.43 V Lawyers $41,691.05 NAB mortgage $730,797.02 Total $1,047,973.82
By agreement, and reflected in an order, the parties each received $100,000 from the proceeds of sale. Finally, the wife’s liability for costs and arrears of rent from the order of 31 May 2022, in the sum of $5,076.24 was deducted at settlement and paid to the husband.
Table of assets and liabilities
Based on the value of the parties’ legal and equitable interests referred to above, I summarise the non-superannuation assets and liabilities of the parties as having a total value of $1,510,803, as follows:-
Description of asset Ownership Value B Street, Suburb C adjusted proceeds of sale $3,402,877.61
less $53,755 and
less mortgage liability and
less legal costs of $1,047,974 and
less $200,000 in part property payments
less $5,074.24 costs order of 31/5/22 against wife for benefit of the husbandJoint $2,095,072 Repayment of loans from Mrs W Joint ($1,260,000) Roland Trust Joint ($103,741) Unpaid trust entitlements Husband $161,017 Unpaid trust entitlements Wife $120,908 CC Pty Ltd Joint ($227,458) Share Portfolio Husband $7,723 Motor Vehicle 1 Wife $65,000 Wife’s Jewellery/handbags Wife $20,000 Furniture/chattels in possession of husband Joint $5,000 Furniture/chattels in possession of wife Joint $20,000 Wife’s proportion of proceeds of S Finance loan expended on legal costs and added back Wife $60,000 Husband’s proportion of proceeds of S Finance loan expended on legal costs and added back Husband $180,000 Wife’s legal costs paid from assets and added back Wife $35,602 Husband’s legal costs paid from assets and added back Husband
$74,171 Wife’s legal costs owing to U Lawyers paid for at settlement of B Street Wife $10,744 Wife’s legal costs owing to V Lawyers paid for at settlement of B Street Wife $41,691 Part property payment – Husband Husband $100,000 Part property payment – Wife Wife $100,000 Wife $5,074.24 TOTAL $1,510,803
The total of the parties’ unpaid trust entitlements and the interests in the Roland Trust and CC Pty Ltd, as itemised above, is a negative $49,274.
It is agreed that the husband’s superannuation interest is worth approximately $394,000, being a combination of $382,226 held in the DD SMSF and $11,780 with Super Fund 1. The wife has a superannuation interest of $19,638.
The parties have:
· non-superannuation property to a value of $1,510,803 (inclusive of add backs);
· superannuation interests which, pursuant to s 90XC(2), are to be treated as property, to a value of $413,644;
· legal and equitable interests in property and superannuation which, pursuant to s 90XC(2), is to be treated as property to a total value of about $1,924,447 (or $1,924,441 depending when figures are rounded up or down).
Contributions under section 79(4)
Section 79(4) provides that in considering what (if any) orders should be made in property settlement proceedings, the Court must take into account contributions made by the parties. These contributions include financial contributions (s 79(4)(a)) and non-financial contributions (s 79(4)(b)) made by or on behalf of a party to the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them. They also include the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage, including any contribution made in the capacity of homemaker or parent (s 79(4)(c)).
The task for the Court is to weigh and assess the contributions of all kinds made by each of the parties. It is important “to somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship”. The assessment of contributions is not a mathematical exercise. It involves the identification and assessment of the parties’ respective contributions in all capacities across the course of the relationship and in the post separation to the point of assessment in a holistic way.
The husband’s evidence was that he had the following assets at the commencement of cohabitation:
(a)A 20% interest in EE Company via the Roland Family Trust;
(b)A 5% interest in KK Company via the Roland Family Trust;
(c)An investment property at AC Street in AD Town with equity of approximately $163,000;
(d)A share portfolio valued at approximately $40,000;
(e)A small amount of savings totalling approximately $20,000;
(f)A Motor Vehicle 2 valued around $40,000; and
(g)Superannuation entitlements totalling approximately $62,411.
The husband’s evidence in this regard was not shaken in cross examination and I accept that his evidence is a fair summation of his property interests at the commencement of the parties’ relationship.
The wife alleges that at the commencement of cohabitation the husband also owned properties in Suburb AE. The properties were 1 AG and 2 AG Street, Suburb AE as well as the property in which the husband and wife first lived as a couple. The husband disputes this and gave evidence that the properties are owned by PP Pty Ltd. I accept that is so.
The wife’s evidence was that at the time of cohabitation she had:
(a)$15,000 in her savings account;
(b)some shareholding; and
(c)no debts.
The husband’s evidence is that during the marriage the wife worked two days a week; one day at EE Company and the other day working on her retail business. To the extent the wife claims she organised functions at EE Company the husband denies this and maintains she attended as a host and greeted guests. The husband claims the wife would attend every third or fourth event of the business and that this equated to working at functions about once a month.
The husband concedes the wife performed more of the home duties than he did. The husband maintains that the wife was significantly assisted in her role as homemaker and parent by a live in nanny, the husband’s mother, house cleaner, gardener as well as pool maintenance and ironing services. He gives the wife little credit in this regard. The husband claims that during the marriage he also contributed to the home duties by supermarket shopping, cooking as well as school drop off. The wife denies this and maintains she did the majority of drop offs as the husband worked long hours. The husband claims his pre-Covid work schedule consisted of taking the children to kinder/school and that he would ordinarily be home between 6:00p.m. and 9:00 p.m. depending on the day. The husband concedes that on the nights he would work late he would not see the children before they went to bed. The wife maintains that the husband would work late “more often than not”. The husband’s continuous employment outside the home has enabled him to accrue superannuation. The husband’s mother contributed to the husband’s superannuation in excess of any statutory contributions to which the husband was entitled by virtue of his employment and proportionate to his income. Whilst the wife’s assumption of homemaker responsibilities facilitated the husband being able to work outside the home, I am not satisfied that the contributions by the husband’s mother to the husband’s superannuation interest corresponded to, or were facilitated by, a contribution made by the wife in any capacity.
I am satisfied that the husband’s direct and indirect financial contributions were greater than those of the wife but that the wife’s contributions as homemaker and parent, including post separation, were greater than those of the husband.
I am satisfied that the contributions of the parties were roughly equivalent but for the injections of capital from the husband’s mother into superannuation and non-superannuation assets and the disparity in pre-cohabitation assets. The $1,200,000 and $60,000 lent by the husband’s mother will be repaid but the parties had the considerable benefit of not having been charged interest on that amount. Then there is in excess of $1,200,000 which was gifted or provided to the parties for specific purposes.
Counsel for the wife submitted that the contributions of the parties on all capacities should be assessed at 60% to the husband and 40% to the wife. Counsel for the wife submitted, in effect, that if the husband’s mother had not advanced the $1,200.000 for specific purposes, the parties would have done without those funds and that the advances are not reflected in the assets divisible between the parties. I do not accept that. There is every indication that the parties would have still spent beyond their means and eroded their equity in the former matrimonial home to do so. I have regard to how the extra $1,200,000 from the husband’s mother was applied. If it was applied to acquire an asset which had increased significantly in value, my assessment would be different. The parties did live beyond their means and do not have much to show for 10 years of marriage and generous injections of capital and loans from Mrs W. However, I do not accept that an assessment of the husband’s contributions at 60% is sufficient recognition of the financial contributions made on behalf of the husband.
Counsel for the husband submitted that the contributions of the parties on all capacities should be assessed at 75% to 80% to the husband and 20% to 25% to the wife. I regard Mr Dickson’s quantification as closer to the mark. However, I also take into account that these payments and advances were frequently intended by Mrs W to benefit both parties.
Taking all of the evidence into account, I am satisfied that an appropriate assessment of contributions by the parties under s 79(4) to non-superannuation assets is in the proportion of 70% to the husband and 30% to the wife.
There is no valuation evidence from which I can determine what proportion of the husband’s current superannuation interest represents his pre-cohabitation entitlement of $62,000. Advances by the husband’s mother to the husband for payment into his superannuation (over and above superannuation contributions received as a component of his PAYE income) are described incidentally rather than comprehensively. The evidence about superannuation is far from comprehensive but, doing the best that I can, I find that the wife’s contribution to the parties’ total superannuation interests is significantly less than 30% and not more than 15% to $20%.
Considerations under s 75(2)
Section 79(4)(e) requires me to take into account the matters referred to in s 75(2) so far as they are relevant.
I take into account the income, property and financial resources of the parties and the capacity of each of them for appropriate gainful employment. The wife has a current total weekly income of $331.85 comprising of Child Support ($216) and Family Tax benefits ($115.85). Upon her being able to establish that she has no involvement in the family business and its entities, she may be eligible for a parenting payment (or part payment) from Centrelink estimated at $425.10 per week less any adjustment to take into account the Child Support that she receives from the husband.
The husband, in his financial statement filed 6 August 2021, deposes to a total average weekly income of $1,365 and gave evidence that since February 2020, and due to the Covid-19 pandemic, he is no longer in receipt of distributions from the Roland Family Trust. The husband continues to receive a full wage from EE Company. The husband’s evidence is that due to the effect of the pandemic EE Company and KK Company have been operating at a decreased income. This was somewhat corroborated by the oral evidence the single expert witness, Mr Z.
The wife is not currently employed outside of the home and has not been, on her evidence, since January or February 2019. The wife deposes to having had successful careers in Country H from the age of 17 and up until her relocation to Australia was employed as a professional at a large company in Country H. The wife deposes that during the marriage she worked, albeit not always “on the books”, at EE Company taking care of “bookkeeping, marketing public relations, [project management]”. The wife deposes that she was in receipt of a wage which was paid into the parties joint account but was unaware of how much as the husband was in control of the parties’ finances. The wife deposes to earnings of $79,000 in the financial year ending June 2019 but claims she never personally received the money. The wife deposes that in January/February 2019 she was informed she had been ‘let go’ from her employment with EE Company and was no longer in receipt of income. During the marriage the wife also worked on her own retail business which was ultimately unsuccessful.
The husband’s evidence in so far as the wife’s capacity to work was concerned positioned the wife as tertiary educated, a “good business woman” and “articulate” notwithstanding English is her second language. The husband was unsure whether the wife’s qualifications which she obtained in Country H prior to the marriage would be accepted in Australia, but was of the opinion the wife’s business qualifications would be. The husband considered the wife to be capable of obtaining employment in a retail position working part-time. The wife made no concession in this regard. She was employed as a professional in Country H but has not worked in this industry in Australia or since she left Country H over 12 years ago. The fact that English is her second language may further limit her employment options. However, overall. The wife impressed me as industrious, resourceful, intelligent and capable. She is likely to be able to obtain employment with ease. The wife’s employment prospects will be restricted by her responsibility to care for the children. The husband, in his financial statement filed 6 August 2021, deposes to a total average weekly income of $1,365 and gave evidence that since February 2020, and due to the Covid-19 pandemic, he is no longer in receipt of distributions from the Roland Family Trust. The husband continues to receive a full wage from EE Company. The husband’s evidence is that due to the effect of the pandemic EE Company and KK Company have been operating at a decreased income. This was somewhat corroborated by the oral evidence the single expert witness, Mr Z.
The wife has the primary care of the children and the husband has substantial time with the children. The wife wishes to continue her role as homemaker and parent. The wife’s evidence is that she believes that she will be in a position to apply for jobs once the youngest child is in grade one. I note that is in approximately two to three years’ time. I suspect that the wife will need to return to the workforce in some capacity before then.
Both parties will have to juggle their commitments to work outside the home. It is likely that the wife will have to seek and obtain employment outside the home in order to make ends meet. The wife will have less flexibility with her employment than the husband.
The wife’s lesser income and lesser capacity to earn income and primary care responsibility for the children requires an adjustment being made in her favour pursuant to s 79(4)(c).
The parties are responsible for their own support and the support of the children. The husband has a duty to maintain the wife to the extent that she is unable to support herself adequately by reason of the matters referred to in s 72(1). Neither party has a responsibility to support any other person.
Both parties have superannuation entitlements. The husband is 48 years old and the wife is 44 years old. Neither party has met a condition of release and there is no evidence to suggest that either party’s superannuation can be accessed early or before each attains preservation age and has met a condition of release. Neither party is in receipt of a superannuation pension. The husband’s superannuation interests are worth $394,000 and the wife’s are $19,638. The disparity is about $375,000. The wife’s contribution to their superannuation has been far less than the husband’s contributions or contributions made on his behalf. The husband had about $62,000 in superannuation at the commencement of cohabitation.
The husband seeks to adjust the disparity in the parties’ illiquid superannuation interests with a cash payment to the wife. He proposes $100,000. There is no evidence that the husband will reach a condition of release earlier than attaining the qualifying age. The wife is only 44 years old. The husband is 48 years old. I am satisfied that each party can be in the paid workforce for many years to come. Having regard to the husband’s greater contributions and that the adjustment is in liquid funds which will be available to the wife immediately, I consider the husband’s proposal to be an appropriate way to address the disparity in the parties’ superannuation interests. I will provide that the wife receive $100,000 of the proceeds of sale of the home to which the husband is entitled. No further adjustment in favour of the wife is to be made pursuant to s 79(4)(c) in respect of the husband’s greater superannuation interest.
It is apparent that the parties lived beyond their means during cohabitation. In the outline of case of the wife, their lifestyle is described as having been “lavish”, which it probably accurate. Post-separation there were two households to maintain. The parties have applied capital to post separation living expenses and the needs of the family. That capital is no longer available for division between the parties. The family’s lifestyle was never sustainable on income. The family’s lifestyle has been financed by monies advanced by the husband’s mother and/or liquidation of assets.
Going forward the parties each face a diminution in their standard of living, particularly in relation to accommodation. If the wife elects to purchase a house, it will necessarily be a real property which is inferior to the former matrimonial home and to the rental property which she occupied upon vacating the former matrimonial home. The wife’s case outline posits that:
The wife will need to rent or purchase another property for herself and the children to live in once the six-month lease on the property in which she currently lives ends. It is unlikely that she will be in a position to extend the lease at their current place of residence as she will be unable to afford to pay rent at that level ($3,476 pcm. or $802.15 per week) without financial assistance from the husband. In order to purchase a very basic property for herself and the children to live in reasonable proximity to her current place of residence and [X’s] current school, she will need to receive an amount in excess of $1,000,000 by way of property settlement (the median house price in Melbourne being in excess of that figure). Failing that she may need to move to an area with cheaper rental properties or lower housing costs or apply for public housing).
There is, however, no evidence upon which I can make findings about the current market value of houses or that it is preferable for the wife to buy rather than rent. The husband’s evidence was that the wife may have to use capital in order to meet her and the children’s living expenses, as he says he has had to.
The husband agreed that during the marriage he and the wife enjoyed a “comfortable lifestyle” which included dining at restaurants, going on holidays, undertaking renovations to their home, golf and gym memberships as well as beauty expenses. Going forward neither party will be in a position to maintain their pre-separation life style.
I am satisfied that the parties were mutually supportive of one another during the marriage. The wife obtained experience in hospitality which she will be able to put to good use in seeking employment. The wife was the primary carer of the children during the marriage which freed up time for the husband to work.
I can take account of any fact or circumstance which the justice of the case requires to be taken into account. The wife contends that the husband’s mother is 72 years of age, a widow, the husband is her only child and it is unlikely that he will not be the primary beneficiary of her will. There was no evidence of any expectancy of which it would be proper for me to take account.
Counsel for the husband submitted that there would necessarily be an adjustment in the wife’s favour on account of the disparity in income earning capacity and her greater responsibility for day to day care of the children. He submitted that the wife’s contribution based entitlement should be adjusted under s 79(e) to 40% of the non-superannuation assets and that an allowance of $100,000 be made on account of the wife’s lesser superannuation interest with due regard to the husband’s pre-cohabitation superannuation and the fact that the wife receives the adjustment in cash.
It was not clear what the wife seeks on a proportional basis but it is clearly more than 100% of non-superannuation assets because she seeks that the husband be solely responsible for repayment of the $1,200,000 from his mother.
Taking all of the evidence into account, I am satisfied that a significant adjustment must be made in favour of the wife and that the appropriate adjustment is 25% of non- superannuation assets. This will bring the wife’s entitlement to 55% of the non-superannuation assets. I do not consider that it is appropriate for any further adjustment of superannuation interest over and above the cash allowance of $100,000.
An appropriate alteration of property interests
I take into account the property and liabilities to be retained by each party.
The husband’s entitlement to non-superannuation property at 45% is $679,861. He retains or is to be credited with $317,620 being:
ASSET VALUE The Roland Trust, unpaid trust entitlements and CC Pty Ltd interests ($49,274) His shares $7,723 His proportion of proceeds of S Finance loan expended on legal costs and added back $180,000 His legal costs paid from assets $74,171 Furniture/chattels in his possession $5,000 Part property - Husband $100,000 Total $317,620
Accordingly, the husband is to receive $362,241 from the proceeds of sale (prior to the adjustment for superannuation. He retains his superannuation interests $394,006 but pays $100,000 in cash to the wife (which results in him receiving only $262,241 from the proceeds of sale of the former family home).
The wife is entitled to 55% of the non-superannuation assets which I calculate at $830,942. She retains $358,111 made up as follows:-
ASSET VALUE Motor Vehicle 1 $65,000 Jewellery/handbags $20,000 Furniture/chattels in your possession $20,000 Her proportion of proceeds of S Finance loan expended on legal costs and added back $60,000 Her legal costs paid from assets and added back $35,602 Wife’s legal costs owing to U Lawyers paid for at settlement of B Street added back $10,744.43 Wife’s legal costs owing to V Lawyers paid for at settlement of B Street added back $41,691.05 Costs Order amount taken from net sale proceeds added back $5,074.24 Part property – Wife $100,000 Total $358,111
Accordingly, the wife is to receive $472,831 from the proceeds of sale. The wife also retains her superannuation interest of $19,638 together with the $100,000 payment from the husband.
Accordingly, the entitlements of the husband and the wife, inclusive of sums added back, can be summarised as follows:-
Wife’s total property $950,580 Husband’s total property $973,861 Non-superannuation assets Non-superannuation assets cash of $472,831 cash of $362,241 assets & addbacks of $358,111 assets & addbacks of $317,620 Superannuation adjustment $100,000 Superannuation adjustment ($100,000) Superannuation of $19,638 Superannuation of $394,000
Whilst the husband receives 50.6% of the total superannuation and notional non-superannuation interests divisible between the parties, he receives only $262,241 or about 27% of his entitlement in liquid assets (cash and shares). The wife receives 49.4% of the total superannuation and non-superannuation interests, but that includes cash of $572,831. The wife receives 60% of her entitlement in liquid assets (cash).
I take into account that the wife has to pay costs orders in favour of the husband but that is because she required the husband to incur costs which I have decided it is not proper for him to bear. Exhibit “H12” tendered on 2 August 2022 quantifies the outstanding costs at $25,289.
I am satisfied that the alteration in property interests as described above is an appropriate alteration of property interests and that, when the actual house figures are put into the equation, each party will receive a little more cash.
Spousal maintenance
The wife maintains that the husband is in receipt of income “far greater” than that which he deposes to in his financial statement. It is on this basis that the wife seeks an order for ongoing spousal maintenance in the increased sum of $1000 per week until the parties’ youngest child attains the age of 18. I am not persuaded that the husband receives income and benefits which he has not disclosed. Ongoing spousal maintenance did not figure in final submissions made by counsel for the wife. The wife has not demonstrated that the husband has the means or ability to pay spousal maintenance.
I do not consider that it would be proper to make an order for spousal maintenance.
Child Support
The wife seeks that the husband pay $500 per week by way of child support. That is more than double the current assessment. I am satisfied that it is appropriate for me to deal with child support as an adjunct to these property proceedings. In order to succeed, the wife must bring herself within the three stages provided in s117 of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”). They are:
·To identify which of the grounds exist in her case for establishing a “special circumstance” as defined s 117(2);
·To satisfy me that an increase in child support is just and equitable within the meaning s 117(3); and
·To satisfy me that an increase in child support is otherwise “proper”.
Counsel for the wife did not address me on s117 of the Assessment Act. The proposed orders set out in the wife’s case outline do not include a child support order.
I decline to make any child support order.
Conclusion
For the above reasons I make the Order set out at the commencement of these reasons.
In the context of the hearing on 2 August 2022, I informed the wife that she would have 28 days in which to file a Notice of Appeal against the Order and that the 28 days would commence to run from the date on which the Order and these reasons are published. I informed the wife that the Order would be implemented notwithstanding a Notice of Appeal being lodged unless she obtained a court order or the husband’s agreement to a stay of the Order (or part thereof). I informed the wife that an application for a stay would not be entertained by the court without a valid Notice of Appeal having been filed.
COSTS
Any party who wishes to make an application for costs may do so in accordance with the Rules of Court.
I certify that the preceding one hundred and seventy (170) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 12 August 2022
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