Senga & Senga
[2024] FedCFamC2F 403
•3 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Senga & Senga [2024] FedCFamC2F 403
File number(s): PAC 6296 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 3 April 2024 Catchwords: FAMILY LAW – PROPERTY – Just and equitable orders made. Legislation: Family Law Act 1975 (Cth) ss 75, 79 Cases cited: Lotta & Lotta [2017] FamCA 50
Weir & Weir [1992] FamCA 69; (1993) 16 FLR 154
Division: Division 2 Family Law Number of paragraphs: 118 Date of hearing: 7 – 8 March 2024 Place: Parramatta Counsel for the Applicant: Ms Hamilton Solicitor for the Applicant: Family Focus Legal Pty Ltd Solicitor for the Respondent: Marsdens Law Group ORDERS
PAC 6296 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SENGA
Applicant
AND: MS SENGA
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
3 APRIL 2024
THE COURT ORDERS THAT:
1.The net sale proceeds of the property located at B Street, Suburb C, NSW, and the net sale proceeds of the property located at D Street, Suburb E, QLD, currently held in the controlled monies account operated by Family Focus Legal, be forthwith distributed to the parties as follows:
(a)$118,013 to the husband, and
(b)$596,279 to the wife.
2.Within 14 days of the date of these Orders, the parties do all things and sign all documents necessary to close the joint Commonwealth Bank of Australia account (ending #...73) with the funds remaining in that account to be retained by the wife.
3.Pursuant to Section 90XT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of Mr Senga (DOB: 1974) in Super Fund 1 with Member ID … (“the husband’s superannuation fund”), the trustee shall pay to Ms Senga (DOB: 1974) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth), using a base amount of $81,793 and there should be a corresponding reduction in the entitlement of the person to whom a splittable payment would have been made but for these Orders.
4.Order 3 has effect from the operative time and the operative time for the Order is the fourth business day from the date of service of these Orders upon the trustee of the husband’s superannuation fund.
5.Order 3 binds the trustee of the husband’s superannuation fund.
6.As between the husband and the wife, and subject to the above Orders, the husband shall retain all interest in and entitlement to:
(a)1 F Street in Country G;
(b)2 F Street in Country G;
(c)3 F Street in Country G;
(d)Motor Vehicle 1;
(e)Motor Vehicle 2;
(f)All personal property now in his possession or control.
(g)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his sole name.
(h)All interests in life insurance policies and superannuation funds standing in his sole name.
7.As between the husband and the wife, and subject to the above Orders, the wife shall retain all interest in and entitlement to:
(a)All personal property now in her possession or control.
(b)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in her sole name.
(c)All interests in life insurance policies and superannuation funds standing in her sole name.
8.Subject to the above Orders, the husband shall retain, and indemnify and keep indemnified, the wife in relation to all liabilities currently standing in his name or control.
9.Subject to the above Orders, the wife shall retain, and indemnify and keep indemnified, the husband in relation to all liabilities currently standing in her name or control.
10.In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
These are Reasons for Judgment relating to a final property hearing held before the Court on 7 and 8 March 2024.
The applicant husband and respondent wife both appeared, legally represented.
PROPOSALS
The husband seeks orders as set out in his Amended Initiating Application filed 4 March 2024, inter alia, that various alleged loans be repaid from the sale proceeds held in a controlled monies account, and the balance be divided 70 per cent to the husband and 30 per cent to the wife. He resisted the wife’s application for a superannuation splitting order.
The wife seeks orders as set out in her Case Outline filed 5 March 2024, inter alia, that she receive the entire balance of the controlled monies account and that a superannuation splitting order be made in her favour.
MATERIAL RELIED UPON
The husband relied upon:
(a)Amended Initiating Application filed 4 March 2024;
(b)His affidavit filed 6 March 2024;
(c)His Financial Statement filed 6 March 2024;
(d)His Case Outline filed 6 March 2024.
The wife relied upon:
(a)Amended Response filed 5 March 2024;
(b)Her affidavit filed 16 February 2024;
(c)Her Financial Statement filed 16 February 2024;
(d)Her Case Outline filed 5 March 2024.
The following documents became exhibits:
(a)Exhibit A: Husband's Genuine Steps Certificate, pp 170-172 of wife’s tender bundle (“WTB”);
(b)Exhibit B: Undertaking as to Disclosure, pp 13-14 WTB;
(c)Exhibit C: Financial Questionnaire, pp 164-169 WTB;
(d)Exhibit D: Financial Statement 1 November 2022, pp 1-12 WTB;
(e)Exhibit E: Superannuation Information of the husband’s superannuation fund, pp 175-177 WTB;
(f)Exhibit F: Certificate of Title, p 150 WTB;
(g)Exhibit G: Statements of account ending …35, pp 79-80 WTB;
(h)Exhibit H: Husband’s account ending …96, pp 81-84 WTB;
(i)Exhibit I: CBA records joint account ending …73, Subpoena pp 53-60;
(j)Exhibit J: Valuation Report, pp 131-156 WTB;
(k)Exhibit K: Images, pp 36-46 WTB;
(l)Exhibit L: CBA Home Loan account ending …40, pp 124-126 WTB;
(m)Exhibit M: Account ending …51, p 8 CBA records;
(n)Exhibit N: Google review, p 73 WTB;
(o)Exhibit O: Summaries, pp 26-27 WTB;
(p)Exhibit P: Certificate of Incorporation H Ltd, pp 157-160 WTB;
(q)Exhibit Q: Business Name Search, pp 161-162 WTB;
(r)Exhibit R: Bank Document, p 22 WTB;
(s)Exhibit S: Government Department letter, p 52 WTB;
(t)Exhibit T: Procedural fairness letter, pp 109-115 WTB;
(u)Exhibit U: Affidavit of husband filed 6 March 2024.
EVIDENCE
The Court has considered the documentary material relied upon by the parties discussed above, and the parties’ oral evidence. The standard of proof applied by the Court in respect to the evidence is the balance of probabilities. The Court does not propose to set out the entirety of the evidence. Relevant evidence relating to the issues to be determined will be set out below and under the headings “Balance sheet”, “Contributions”, and “Section 75(2)”. Where there is any conflict between the evidence referred to below and in those sections of these Reasons, the evidence under the headings “Balance sheet”, “Contributions” and “Section 75(2)” shall take precedence.
The husband’s affidavit filed 6 March 2024 was demonstrated, in cross-examination, to be, inter alia, unreliable. For example, in paragraph 88, the husband asserted that the wife’s pay received from her different jobs was applied to her own personal spending and that she did not contribute to joint expenses. However, the CBA bank records for the parties’ joint account ending …73 (Exhibit I) indicated that, for example, in 2016, the wife’s significant salary from her work with the government was being deposited into that bank account and that the parties’ day-to-day living expenses were being paid from that account.
The husband’s financial disclosure was in significant respects unsatisfactory and/or not provided in a timely manner.
A significant issue in the proceedings was whether or not the husband held certain Country G real estate on trust for his father; the husband contended this to be the case. This real estate was ultimately entered into the final balance sheet and totalled $951,140. This real estate had improvements including a holiday rental property and a residential home. Yet no affidavit from the husband’s father was filed and served in these proceedings and no explanation was given by the husband for his failure to do so.
Interlocutory orders were made on 20 November 2023 relating to a single expert valuer being appointed, including a mechanism relating to such appointment, and which the husband failed to comply with in a timely fashion or at all.
The husband’s oral evidence in cross-examination was, on occasion, unsatisfactory and unreliable. One example was where, as discussed above, it was clearly demonstrated that the husband’s affidavit (paragraph 88, second sentence) was incorrect, yet the husband failed to concede that issue.
Accordingly, the Court, in making findings of fact as discussed in these Reasons, approaches the husband’s evidence with significant caution.
The wife was a satisfactory witness, and her demeanour was calm. The Court is satisfied that she did her best to give responsive and truthful answers in cross-examination.
LEGAL PRINCIPLES
In Lotta & Lotta [2017] FamCA 50, Foster J stated:
281 The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford (2012) 247 CLR 108 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman (2014) FLC 93–592 and Scott & Danton [2014] FamCAFC 203.
282The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
283Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
284There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
285In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
286In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the wife seeks an order for adjustment of property and the husband contends that there should be no such adjustment.
287It is thus important to ascertain the present property and resources of the parties so as to facilitate a consideration of the s 79(2) question.
288In some circumstances it is not possible to determine whether it is just and equitable to make adjustment orders as to the parties’ present property rights without a consideration of s 79 (4) matters.
289Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).
290The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92–877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.
BALANCE SHEET
The balance sheet of the parties is now set out:
BALANCE SHEET Ownership Description Applicant’s value Respondent’s value Assets 1 J Net sale proceeds of Suburb C & Suburb E properties held in trust 714,292
714,292
2 J CBA Smart Access #...73 (as at 09.02.2024) 57 57 3 J L Bank #...69 NK NK 4 W CBA Goal Saver #...29 (as at 09.02.2024) 500 500 5 W K Bank #...95 (391,460 as at 02.02.2024) E100,000
3,988
6 W M Bank account #...69 (239,231 as at 03/23) NK
2,724
7 W L Bank account #...96 (3,806 Country G currency) NK
43
8 W Motor Vehicle 2 NIL E 10,000 9 H L Bank #...35 3 3 10 H CBA account #...51 (as at 06.10.2023) 10 NK 11 H CBA account #...63 (as at 06.10.2023) 124 NK 12 H CBA account #...76 (as at 06.10.2023) NIL NK 13 H L Bank #...96 7 NK 14 H N Bank account #...00 1,663 1,663 15 H Motor Vehicle 1 NIL E 26,000 16 H 1 F Street NIL 642,950 17 H 2 F Street NIL 31,881 18 H 3 F Street NIL 276,309 Total $ E 816,656 $ 1,710,410 Addbacks 19 W Funds emptied from parties joint safe E300,000 0 20 W Funds transferred from Super Fund 2 E20,000 0 21 W Funds transferred from Super Fund 3 E20,000 0 22 J Funds transferred from CBA #...51 to Applicant NIL 489,000 23 J Funds transferred from CBA #...73 to Applicant NIL E 340,000 24 H 4 F Street NIL 0 Total $ E 340,000 $ 829,000 Liabilities 25 H L Bank Country G charge over 1 F Street NK
NK
26 J O School fees E40,000 NK 27 J Loan from Mr Q 20,300 NK 28 J Loan from Mr P 20,753 NK Total $ 81,053 $ NK Superannuation Member Name of Fund Type of Interest Applicant’s Value Respondent’s Value 29 H Super Fund 1 Accumulation 192,535.81 213,901 30 W Super Fund 2 (as at 30.06.2023) Accumulation 22,921
22,921
31 W Super Fund 3 (as at 01.02.2024) Accumulation 27,573
27,753
32 W Country R Pension NK NK Total $ 243,029.81 $ 264,575 Financial Resources Ownership Description Applicant’s Value Respondent’s Value 33 $ $ Total $NIL $NIL Net Total Assets (including superannuation) Total $
E 1,288,632.81$ 2,803,985 (As per original)
Both parties referred to the value of item 3 as unknown in the joint balance sheet, and likewise in their respective financial statements. Neither party tendered any material in respect of this account, nor contended for any value to be ascribed to it in final submissions. It shall be removed from the balance sheet.
As to item 5, the wife’s K Bank account …95, the wife’s Financial Statement filed 16 February 2024 asserts $220 however, she disclosed to the husband’s side that the relevant balance in the account was $3,988. It was conceded there was no objective evidence that the balance was $100,000. The sum of $3,988 shall enter the balance sheet for item 5.
There was agreement as to items 1, 2, 4, 6, 7, and 9 to 14, as set out below in the final balance sheet.
As to item 8, Motor Vehicle 2, it used to be driven by the husband in Australia. It was shipped to Country G by the parties on their return to Country G in 2018 and the husband continued to drive it there. The parties separated in late 2019 when the wife moved to live with her parents in City S, Country G. The husband asserts in his Financial Statement filed 6 March 2024 that this car is registered in his name and that it has broken down with no value. The wife conceded that she could offer no evidence as to the present condition of the car. Motor Vehicle 2 should be ascribed no value.
As to item 15, Motor Vehicle 1, it used to be driven by the wife in Australia. It was shipped to Country G by the parties on their return to Country G in 2018 and the wife continued to drive it there. Again, the parties separated in late 2019 when the wife moved to live with her parents in City S. Neither party refers to this vehicle in their recent Financial Statements. The husband asserted in evidence that he did not have possession of this vehicle as at late 2022 when his first financial statement was filed, and that the wife had crashed the vehicle. No value shall be ascribed to this vehicle in the final balance sheet.
As to items 16 to 18, the F Property, the husband asserted that he holds this property on trust for his father. He also submits that the valuation evidence for this property (see the affidavit of Mr T filed 8 March 2024 attaching a valuation report dated 28 February 2024) was, inter alia, unreliable.
The Court will now determine the husband’s contention that the properties, in relation to which he has legal title (the properties are registered in his name), are held on trust for his father.
At the outset, it is important to observe that there is no affidavit filed in these proceedings from the husband’s father. The husband has failed to provide any explanation as to why there is no affidavit from his father in relation to this trust issue. The Court draws an inference, pursuant to the decision in Jones v Dunkel [1959] HCA 9; 101 CLR 298, that any evidence from the husband’s father would not have assisted the husband in relation to this trust issue.
The Court should now refer to the husband’s affidavit evidence in relation to this trust issue.
In paragraph 200, the husband makes a bare legal assertion that he holds the properties on trust for his father.
In paragraph 201, the husband asserts that in 2015 or 2016 he and his father entered into a Memorandum of Understanding, however that Memorandum is not in evidence; the Court would attach no weight to this assertion. The husband asserts that the wife “was there at the time” that the alleged Memorandum was entered into however, the Court accepts the wife’s evidence that she was not present at such alleged time. In any event, such assertion is vague and lacks detail as to what the wife was allegedly doing when she was present “at the time”.
Paragraph 201 also alleges that the husband’s father chose to enter into the above Memorandum “as a form of asset protection”; the Court attaches no weight to this allegation being inadmissible hearsay and/or opinion.
As to paragraph 203, the husband’s allegation that the holiday rental property (or holiday rental referred to above) situated on the property, known as the U Business, was founded by his parents lacks any significant detail, and, particularly in the absence of any affidavit from the husband’s father (or indeed his mother), the Court would attach no significant weight to it. The allegation that his parents are the “true owners” of this property is a bare legal assertion which, again, in the circumstances of there being no affidavit from the husband’s father, the Court would give no weight.
As to paragraph 204, the husband’s allegations that his parents purchased “the land” in 2021 and built the U Business between 2022 and 2023 lacks any significant detail and, particularly in the absence of any affidavit from the husband’s father (or indeed his mother), the Court would attach no significant weight to them. The Court should add that the allegation that his parents purchased “the land” in 2021 is inconsistent with the alleged trust in favour of the husband’s father and the fact that the legal title to the property is in the name of the husband.
As to paragraph 207, the first sentence is inadmissible hearsay and/or opinion, and in the absence of any affidavit from the husband’s father, the Court would attach no weight to it.
As to paragraph 208, the allegation that the husband’s parents “now have a number of staff employed to run the business” is given no weight by the Court particularly in view of there being no affidavit from the husband’s father (or indeed his mother), and noting the husband’s interest as shareholder in the company H Ltd which company owns the business name U Business, Country G.
Annexure L to the husband’s affidavit (being a Country G statutory declaration made by the husband’s father) was struck out by the Court, inter alia, as being inadmissible hearsay in circumstances where no affidavit was filed by the husband’s father.
Annexure O to the husband’s affidavit refers to a court action in Country G between the husband and his father; however, the Court would attach no significant weight to this document by reason of there being no significant documents adduced in evidence relating to that court action, and there being no affidavit filed by the husband’s father in these proceedings. Again, as referred to above, the first sentence of paragraph 207 is inadmissible hearsay and/or opinion, and the Court attaches no weight to it.
The husband submits, in support of his trust contention, that there are “cautions” registered against the title to two of the lots comprising the Country G property (i.e. cautions against 2 F Street, vacant land, and 3 F Street, the land on which the residential house is situated), being cautions lodged “in favour of [the husband’s father] claiming beneficiary interest”. The Court would attach no weight to these cautions by reason of the absence of any affidavit from the husband’s father; had such an affidavit been filed some explanation could have been given by him as to the nature and content of these cautions justifying any alleged beneficial interests, and he could have been cross-examined. The Court observes that Notation D of the Court’s Orders of 20 November 2023 stated that the husband’s father may consider intervening in these proceedings and referred to a caution filed against lot F 3. The husband’s father has never intervened in these proceedings seeking, inter alia, to protect any alleged beneficial interest in the Country G property.
In relation to the husband’s contention that he holds the Country G properties on trust for his father, the Court observes there is no trust deed, no trust declaration, and no contemporaneous documents supporting a constructive trust, resulting trust or express trust, in evidence.
The Court regards the gift of $80,000 by the husband’s father to the husband in around 2013 to allow the finishing of the Suburb C property as being a neutral fact in determining this trust issue; for example, there is no evidence that there were conditions attached to this gift.
The Court does not accept the husband’s evidence that the parties agreed to return to Country G so that he could support his sick parents; rather the Court accepts the wife’s evidence, as discussed below, relating to the parties’ discussions and actions taken to build a holiday rental property on land in Country G.
The following evidence, which the Court accepts, is inconsistent with any alleged trust as contended by the husband:
(a)The Country G property is registered in the husband’s name as the proprietor;
(b)The wife’s detailed evidence, inter alia, that in or around 2015 the parties began looking at another investment to purchase; the husband had been earning substantial income from his employment in Australia at the time and they had accumulated quite a lot of savings; the parties discussing the possibility of running a business in Australia however it seemed this project would be too expensive for them; the parties looking at whether it was practical to establish a business in Country G; the parties discussing the possibility of purchasing some land and building a holiday rental property on the land; the parties discussing and settling on the name for the property being U Business; the parties discussing the sorts of features they thought the property should have; and the husband locating a parcel of land in Town J;
(c)The wife’s evidence that she discovered in her records since commencement of these proceedings a copy of an unsigned sales agreement which she asserts relates to the above land that the husband located as an investment in or around 2015. The sales agreement, annexure F to the wife’s affidavit, states the purchaser is the husband, and the property to be purchased is several acres to be excised from the property known as 5 F Street; the sales agreement being drawn up by a law firm (in City S) and the sales agreement providing for the purchaser to pay for, inter alia, legal fees for administration of the sale agreement; the sales agreement refers to the vendors being two persons including one “Mr V” which person is expressly mentioned on the Country G Subdivision Form set out at page 18 of the valuation report as being a person interested in the “Registered Proprietors’ Instructions to the Surveyor”. The Court has approached this unsigned sales agreement with some caution, however, it would appear to be consistent with later evidence, for example, Exhibit I (see below) and a letter dated early 2019 and titled “RE: Boundary dispute” (Exhibit S);
(d)Exhibit I, being extracts from a joint bank account of the parties, account …73, showing an early 2016 payment of $500 to the above Advocates;
(e)By reference to the above valuation report, an annexed subdivision record carrying dates of late 2018 refers to 5 F Street being subdivided as to, inter alia, a block of several acres; and a further subdivision related document dated late 2018 headed “Field diagram and observations on-site” refers to this block of land and which looks similar in shape and alignment to the Google map set out at page 15 of the valuation report;
(f)The wife’s evidence that shortly after the parties arrived in Country G the construction process for the above residential house (on 3 F Street) started, and her evidence in this context that one of the early tasks that was performed was the drilling of a borehole for access to water;
(g)The wife’s evidence annexing the borehole completion records showing borehole works completed on about mid-2019, with those records showing the husband as the applicant for the borehole;
(h)Exhibit R, being a copy of a funds transfer bank record from the parties joint L Bank account … dated late 2019 (page 22 of wife’s tender bundle) referring to a payment of money relating to a borehole after the borehole work was carried out;
(i)The wife’s evidence that a housewarming and blessing for the newly constructed house was held on about late 2019, which had been arranged by the husband, and that it was lovely to be able to show off the parties’ new home to their friends and family;
(j)The certificate of official search relating to 1 F Street and which relates to the land on which the holiday rental is built, and set out at page 20 of the valuation report, refers to two charges (early 2022) in favour of the L Bank of Country G, in the sum of about $150,000. It also refers to the husband being the “proprietor” of that land. It refers to a title deed issuing for that land in late 2021. In cross-examination, the husband confirmed that he did sign documents with that bank with his father present.
There is force to the submission of the wife that, on the assumption that the husband’s trust contention is truthful, it is likely that at about the time that this bank advanced funds totalling $150,000 on the security of title to the above land, the husband would have informed the bank that in fact his father was the beneficial owner of that land pursuant to a trust between himself and his father. In such circumstances, documentation relating to such trust would have likely formed part of the bank’s security documentation relating to its loan; it is unlikely that the bank would lend a significant sum of money to the husband, who was not the beneficial owner of the land, without such documentation. Yet, the husband adduced no such documentation which (on the above assumption) could have been obtained by him from the bank;
(k)Exhibits P and Q, in relation to the business known as the U Business, Country G, reveals the company H Ltd being incorporated (in Country G) in 2016; the ordinary shares in the company, 100, in the name of the husband as “director/shareholder”, with its registered office having an email address which is one of the husband’s email addresses; its phone number is the husband’s phone number; the business name U Business, Country G was registered in mid-2021 with the proprietor of that business name being the above company; and there is no reference to the husband’s father in Exhibits P and Q. In evidence, the husband conceded that there was no trust deed nor trust declaration showing his shares in the above company being held on trust for his father. These exhibits are consistent with the husband being the true owner of the business, with the business being a significant concern, and the Court observing that the husband has provided no disclosure in relation to the operation of the business;
(l)The wife’s evidence that at no time during the parties’ relationship did the parties ever discuss the husband’s father being involved in the business project that they had;
(m)The husband’s inadequate financial disclosure in relation to these proceedings has been unsatisfactory and deliberate.
For example, the husband failed to disclose his ownership of the Country G properties, and the wife was required to engage legal assistance in Country G to ascertain the husband’s property interests in Country G. The husband did not disclose in a timely manner bank accounts in his name, including CBA account …51, and L Bank account …96 (a bank account in Country G), and they were not disclosed in his Financial Statement filed 19 December 2022. CBA account …51 was only discovered by the wife’s side after a subpoena was issued to the CBA bank. Some elaboration of these matters can now be given.
The husband’s solicitors’ letter dated 9 September 2022 to the wife’s solicitors stated, inter alia, that the husband does not hold any significant interest in property in Country G, and that he had not purchased any plots of land in Country G. This letter was in response to the wife’s solicitors’ letter dated 8 July 2022. The wife’s solicitors’ letter to the husband’s solicitors dated 28 March 2023 again sought disclosure as to property owned by the husband in Country G. The husband’s solicitors’ letter in response dated 17 April 2023 stated, inter alia, “As previously stated our client [the husband] instructs that he does not hold any significant interests in property in Country G”. On about 28 July 2023, the wife’s solicitors received a report from advocates in Country G stating, inter alia, that they had traced three properties held in the name of the husband in Country G (being the properties referred to in items 16, 17 and 18 in the joint balance sheet). It was not until an interim hearing held in this Court on 20 November 2023 that the husband disclosed for the first time that he was alleging that the land in Country G, being the land set out in items 16, 17 and 18 in the joint balance sheet, was held on trust for his father. The Court refers to the wife’s evidence in her affidavit filed 16 February 2024 under the heading, “Attempts to obtain disclosure of [Country G] property”.
A further example of non-financial disclosure in relation to these proceedings related to the husband’s bank accounts only revealed to the wife’s side after the CBA bank had produced documents to the Court under subpoena. These bank accounts revealed significant banking transactions carried out by the husband and which are summarised, in part, in Exhibit O. In this context, the Court refers to the wife’s evidence in her above affidavit under the heading, “Subpoenae [sic] to Commonwealth Bank of Australia”.
The Court further refers to the wife’s evidence in her above affidavit under the heading, “[Mr Senga’s] Financial Disclosure”.
The Court is entitled, pursuant to established legal authority, e.g. Weir & Weir [1992] FamCA 69; (1993) 16 FLR 154, to not be unduly cautious in making findings in favour of the innocent party, here the wife.
The Court finds that the Country G property set out in item 16, 17 and 18 of the joint balance sheet is owned by the husband and that his father is not the beneficial owner of that property pursuant to an alleged trust or otherwise. Items 16, 17 and 18 shall remain in the final balance sheet.
The Court will now determine the above valuation issue.
The valuation report was admitted into evidence over the husband’s objection on the first day of the final hearing and it became Exhibit J. On the second day of the final hearing, the Court granted leave to the wife to rely upon an affidavit of Mr T, inter alia, annexing the above valuation report.
The husband submitted that the valuation was merely a desktop assessment, the valuer had not referred to comparison properties, and the values provided were merely estimates.
The wife, in response to these criticisms, submitted, inter alia, that the valuation report was annexed to a duly filed affidavit of the valuer in which he asserted, inter alia that, “In preparation of the report I have made all enquiries I believe are necessary and appropriate and to my knowledge there have not been any relevant matters omitted from this report, except as otherwise specifically stated in this report”, that he had read and understood the relevant Rules and had used his best endeavours to comply with them, he had complied with the requirements of his professional codes of conducts or protocol, and that he understood his duty to the Court and had complied with it.
The wife submitted that the valuer had referred to comparable sales albeit that such sales were not listed in the report. In this regard, the wife submitted that the valuation report had been received late by the wife’s side, but this was significantly due to the failure of the husband to comply with the Court’s Orders of 20 November 2023 in a timely manner relating to the appointment of a Single Expert valuer. The wife submitted that had the valuation report been received by her side in a timely manner that details of the probable sales could have been requested from the valuer. There is some force to these submissions.
The Court observes that in the Foreword to the valuation report, the valuer states:
Information relied on in preparation of this report and valuation are; [sic] copy of current searches, survey maps Google search and Google aerial views of the properties. Further information relied on are photographs provided to us by the client. We wish to state that we were unable to access the properties for a physical ground inspection. We have therefore relied on the above information to prepare this report. This report therefore has been prepared to give an estimate (indicative) market value of the subject properties.
The Court observes that the methodology relied upon by the valuer was a comparison approach which was described on page 10 of the valuation report. The valuer had stated under the heading, “General Remarks” that the subject properties were located within an area characterised by agricultural properties, ranches and camping sites. The valuer had stated that the valuation was on the basis of Comparative Market Approach on land for existing use. The valuer stated that the value estimate of the improvements/developments was for guidance purposes only as the true value was subject to a physical inspection and assessment which were unable to be conducted.
The Court observes that the valuer had set out in an appendix to the report a pictorial presentation of U Business, Country G (referred to by the valuer as the business, with relevant address being 1 F Street) containing some 12 photographs which included, inter alia, photographs of the entrance to the holiday rentals, various buildings including a dining hall, outside eating areas and a swimming pool. The appendix had two photographs of the residential house built at 3 F Street and in the body of the valuation report the valuer had referred to various accommodation details including reference to spaces or rooms within the ground floor and first floor.
The Court observes that on page 26 of the valuation report, the valuer had set out certain workings and calculations relating to valuation of the improvements for the holiday rentals and separately for the residential house, together with details for valuation of the land itself.
Having regard to the contents of the valuation report, the Court would observe that there is some significant detail in that report, as briefly discussed above. The report is logical, and it refers, inter alia, to a methodology and material relied upon by the valuer. The valuer’s affidavit refers to him having complied with the Rules of Court relating to expert evidence and complying with his own professional codes of conduct. The husband has not provided any alternative valuation.
On the balance of probabilities, the valuations provided should be accepted by the Court as an adequate and reasonable valuation of the properties that are the subject of items 16, 17 and 18 in the joint balance sheet, and accordingly those values will enter the final balance sheet.
As to item 19, cash funds in foreign currency allegedly emptied from the parties’ joint safe in Country G, $300,000, the husband asserts that when he arrived home in late 2019 he found that the wife had gone, and she had emptied their safe of such monies. The wife asserts that at separation in late 2019, she left the home with a suitcase of clothes and her personal belongings. She also asserts that she accessed the safe that the parties had at the property that stored items such as passports and other important documents. The wife disputes taking such monies from the safe and denies that the parties ever kept any substantial amounts of funds in such safe. In oral evidence, the wife stated she took her passports from the safe.
The Court accepts that it is likely that the parties purchased the safe not long after they returned to Country G as asserted by the husband, and that the parties lived at Suburb W on returning to Country G. However, the Court finds that the parties did not keep substantial amounts of cash in the safe and the wife did not remove about $300,000 from the parties’ safe as alleged by the husband.
The Court accepts the wife’s evidence that the parties and their children returned to Country G in about late 2018 and at about this time they had accumulated quite significant savings over the years, so they were able to meet their day-to-day expenses from those funds.
The Court accepts the evidence of the husband that after the parties made a decision to relocate back to Country G they both agreed to remit their savings accrued in Australia back to Country G. The Court accepts his evidence that they carried some cash, and the rest was transferred by them from their Australian bank accounts to their Country G bank accounts.
However, the Court does not accept the husband’s evidence that the parties chose to withdraw this money from the Country G bank accounts to keep in their safe. The Court does not accept his allegations that when he arrived home in late 2019 to find that the wife had gone that she had emptied their safe which contained about $300,000 worth of cash in foreign currency. He does not give any detail as to the nature of this alleged foreign currency. He does not give any detail as to how this alleged $300,000 in the safe was deposited into the safe, whether by a lump sum of $300,000 or in other separate and smaller amounts and at what time.
Prior to returning to Country G in 2018, the parties maintained Australian bank accounts containing significant funds. In the notes appearing on the joint balance sheet, relating to item 19, the husband asserts that during the relationship his earnings were placed into the parties’ joint mortgage account as a redraw to reduce interest on the mortgage, and the husband would then withdraw funds for family usage. He asserts that this was common practice for over 10 years, and he continued to do this following separation. The husband was unemployed since about two years before the parties’ separation in late 2019 and he has not worked in paid employment since that time.
It defies common sense that where the husband remained unemployed in Country G and had expenses to meet (including family expenses), noting that he handled the parties’ finances during their relationship, that he would have been content for such significant cash funds to be kept in a home safe not earning bank interest.
The Court would attach no significant weight to the husband’s assertions (paragraphs 99, 100 and 211 of his trial affidavit) that many individuals and businesses in Country G choose to withdraw funds and store them in their home in foreign currency and the alleged reasons why they do this. These assertions are vague and lack detail. They refer to what unnamed third parties, who are not on affidavit, allegedly do with their cash monies. And there is no affidavit evidence from third party witnesses, expert or otherwise, as to the various assertions in paragraph 100 relating to, inter alia, the Country G currency or Country G Government threats. In any event, there is no evidence to suggest, for example, that the husband could not have arranged for the parties’ savings, on their return to Country G, to be held in non-Country G banks earning interest to avoid these asserted risks.
Item 19 shall be removed from the balance sheet.
As to item 20 and 21, in relation to the husband’s contended addback of $20,000 relating to funds transferred from Super Fund 2 by the wife, and a further sum of $20,000 relating to funds transferred from Super Fund 3 by the wife, the Court accepts the wife’s evidence that she was able to fund her move from Country G to Country R, after separation, by accessing some money from her superannuation. The Court accepts her evidence that she accessed the amount allowable at the time under the Covid rules which was sufficient for her airfares as well as her setup costs when she arrived in Country R. The Court finds that it is likely that the above sums totalling $40,000 were withdrawn by the wife to fund her reasonable expenses in moving from Country G to Country R. Items 20 and 21 shall be removed from the balance sheet.
The Court will now deal with items 22 and 23. In relation to any findings that the Court sets out below, the Court reminds itself that by reason of the husband’s failure to make adequate financial disclosure it should not be unduly cautious in making findings in favour of the innocent party, here the wife.
In relation to item 23, the wife’s contended addback of $340,000, being monies allegedly transferred by the husband from CBA bank account …73 to himself, the wife contends, inter alia, that the husband caused funds from the parties’ joint CBA account to be transferred to an international account that is in his sole name.
Exhibit O is a two-page summary of banking transactions by the husband in relation to a CBA joint bank account of the parties (…73) and in relation to a separate CBA bank account (…51) held in the name of the husband.
The husband contended that it was likely that to a significant extent his cash withdrawals from bank account …73 were placed into the safe at the parties’ residence. As discussed above as to item 19, the Court does not accept that the parties kept substantial amounts of cash in the safe nor that the wife removed about $300,000 from the parties’ safe at the time of separation in about late 2019.
The banking transactions for bank account …73 refer to significant international money transfers (IMTs) by the husband from, inter alia, early 2019 to early 2020; about $306,500. It can be seen that such transfers are likely then deposited into the parties’ Country G bank account …35 (see Exhibit G) after which fairly corresponding similar withdrawals are made during the same period. This period coincides with the likely construction of the parties’ home. Further, this construction period for the parties’ home is consistent chronologically with the subdivision of 5 F Street pursuant to which several acres of land was excised from this block in about late 2018.
As to the commencement date for the construction process for the house, the Court observes that Exhibit S, the letter from the Country G Land Planning Department dated early 2019 refers to a boundary dispute with a neighbouring property owner. One can infer from this latter document that settlement of the purchase of the Country G property probably did not occur prior to early 2019 but probably had been fully settled before late 2021 (being the date when the Country G title deeds issued). The Court accepts the wife’s evidence that one of the early tasks that was performed was the drilling of a borehole and which occurred, by reference to the borehole documents in evidence, in about mid-2019. The housewarming event for the home was held in about late 2019.
Item 22 was the wife’s contended addback relating to funds transferred from CBA bank account …51 to the husband in the sum of $489,000 and which largely spanned the period from about early 2020 to early 2023. The husband contended that he spent such monies for reasonable living expenses, for both himself and the children, post-separation. He contended that such expenses in relation to the children included expenses for the eldest child who is studying in Australia and who returns to Country G from Australia between semesters. He did not particularise in his trial affidavit, with any significant detail, his contended expenditure of some $489,000.
The Court observes that the husband (and wife) received an interim payment of $50,000 in about mid-2023. The husband asserted that the purpose of obtaining these funds was to reduce school fee debt for the children. The husband asserted that he had to rely on his father on occasions to assist him by reason of not having a formal income, and in this context also asserted that he was grateful to his network of friends who supported him post-separation.
The husband has had the sole care of the children since separation to date, a period of about 4.3 years. The Court observes that since late 2018 the husband has been living in Country G, the youngest child has also been living in Country G, and the eldest child was also living in Country G until he began to attend university and reside with his aunt in Australia, albeit returning to Country G between semesters. The above sum of $489,000 calculates to almost $114,000 per annum (about $9,500 per month) over about 4.3 years which does appear to be in excess of what might reasonably be required for living expenses over such a period in Country G.
In relation to the construction of the property, the wife asserts that the foundations were poured, and construction started in around late 2021. She had left Country G for Country R before this time. The Court observes that there are two charges against the 1 F Street, being the land on which the property is built, in the sum of about $150,000 in favour of a Country G bank and placed on title in early 2022. It is likely that construction of the property had commenced at least by about early 2022.
The Court observes that the Country G property and improvements thereon (the three F Properties referred to in items 16-18) are presently valued at $951,140.
The husband’s source of funds to pay for the Country G property including improvements probably included, to a significant extent, the two contended addback sums of $489,000 and $340,000 (representing the husband’s withdrawn sums in Exhibit O), and the $150,000 Country G bank loan the subject of the charges against 1 F Street (being the land on which the property was built); these sums total some $979,000. The husband’s source of funds to pay for his family’s living expenses post-separation probably included at least some part of the above sum of $979,000, the interim distribution of $50,000, and the support of his father and network of friends post separation. It is possible that the husband may have utilised earnings from the business to fund his family’s living expenses.
The Court refers to its discussions under “Contributions” below in relation to the parties’ contributions towards the Country G property.
Accordingly, items 22 and 23 shall be removed from the balance sheet.
As to item 24, 4 F Street, it was common ground that this item should be removed from the balance sheet.
As to item 25, the L Bank charge over 1 F Street, the certificate of official search of this block which appears on page 20 of the valuation report, refers to, again, charges in favour of that bank, dated early 2022, in a sum of about $150,000. The husband adduced no evidence that the outstanding balance for the loans in relation to which these charges apply is some other sum. The wife was unable to offer any evidence that the value was now other than $150,000 and submitted that the Court would draw an adverse inference from the husband’s failure to provide more up-to-date disclosure of the existence and balance of these charges. On balance, considering the available evidence, the Court finds that the sum of $150,000 should appear for item 25 in the final balance sheet.
As to item 26, O School fees, $40,000, the husband’s Financial Statement filed 6 March 2024 refers to this outstanding liability. The Court accepts that the school fees remain owing in relation to the youngest child and this item shall remain in the final balance sheet.
As to items 27 and 28, the husband’s contended loan liabilities to Mr Q, $20,300, and loan from Mr P, $20,753, the Court observes that the husband’s Financial Statement filed 6 March 2024 asserts that these loan debts are outstanding to these persons and are for, inter alia, school fees. The total of these two loans equates approximately to the above O School fees. There are no affidavits from those alleged lenders. These items shall be removed from the balance sheet.
As to item 29, the husband’s superannuation fund, the sum of $213,901 shall enter the final balance sheet which is confirmed in writing by the superannuation fund in its letter dated 29 February 2024 addressed to the wife.
The Court notes that pursuant to orders made on 6 June 2023 each party received $50,000 from settlement funds held in the husband’s solicitor’s trust account. Such sums should be added back in the final balance sheet and each sum later recognised as having been already received by the parties.
The final balance sheet accordingly will be as follows:
BALANCE SHEET Ownership Description Value Assets 1 J Net sale proceeds of Suburb C & Suburb E properties held in trust $714,292
2 J CBA Smart Access #...73 (as at 09.02.2024) $57 4 W CBA Goal Saver #...29 (as at 09.02.2024) $500 5 W K Bank #...95 (391,460 as at 02.02.2024) $3,988 6 W Country R Bank account #...69 (239,231 as at 03/23) $2,724 7 W L Bank account #...96 (3,806 Country G currency) $43 8 W Motor Vehicle 2 NIL 9 H L Bank #...35 $3 10 H CBA account #...51 (as at 06.10.2023) $10 11 H CBA account #...63 (as at 06.10.2023) $124 12 H CBA account #...76 (as at 06.10.2023) NIL 13 H L Bank #...96 $7 14 H N Bank account #...00 $1,663 15 H Motor Vehicle 1 NIL 16 H 1 F Street $642,950 17 H 2 F Street $31,881 18 H 3 F Street $276,309 Total $1,674,551 Addbacks - W Partial property distribution $50,000 - H Partial property distribution $50,000 Total $100,000 Liabilities 25 H L Bank charge over 1 F Street $150,000 26 J O School fees $40,000 Total $190,000 Superannuation Member Name of Fund Type of Interest Value 29 H Super Fund 1 Accumulation $213,901 30 W Super Fund 2 Accumulation $22,921 31 W Super Fund 3 Accumulation $27,753 Total $264,575 Net Total Assets Total $1,849,126
Accordingly, the parties’ non-superannuation assets are $1,674,551. Addbacks are $100,000. Liabilities are $190,000. Thus the net non-superannuation assets are $1,584,551. The parties’ superannuation entitlements are $264,575. The net total asset figure is thus $1,849,126.
SECTION 79(2) OF THE ACT
The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of their property, and the fact that the continuance of the current legal ownership of their property would not afford them justice and equity.
CONTRIBUTIONS
The parties married in 2001 and separated in about late 2019. The length of the relationship was about 18 years.
At cohabitation commencement, the husband owned two parcels of agricultural land, side-by-side, in Country G. This land was sold, and the funds were used towards the parties’ move to Australia in 2002. The husband had an interest in a land and pension fund in Country G, being superannuation, which was worth $50,000, and which he liquidated to fund the parties’ relocation to Australia. The husband had $20,000 in savings. The wife had a vehicle and some savings.
The parties moved to Australia from Country G in 2002. The husband then worked full-time as a professional. He adopted the role as primary breadwinner for the family and in this role he made significant financial contributions relating to the various properties the parties purchased in Australia and later sold. This was a significant contribution by him. He has not worked in paid employment since about two years before the parties’ separation in about late 2019.
In or around 2013, the husband received a gift from his father in the sum of $80,000 to finish the construction of the property of the parties at Suburb C.
The wife worked as a casual educator and later full-time educator. She received a redundancy payment in about 2005 (the specific sum is not known) which she applied to the parties’ joint account and which was used by the parties to meet their day-to-day expenses. The eldest child was born in 2004 and the wife focused on his care. Later the wife obtained some limited casual work. The wife’s work income was applied to the parties’ joint bank account.
During the parties’ relationship, on balance, the wife was the primary carer of the children, and she also was primarily responsible for attending to the household tasks for the family. The husband assisted in this context.
The parties returned to Country G in about late 2018.
The husband applied redundancy payments from Z Company towards the parties’ mortgage loan for the Suburb C property and towards the deposit for the Suburb E property.
The husband purchased several acres of land in Town J in Country G and this property was registered in his name as proprietor. The purchase of this land was likely funded from the parties’ joint savings to a significant extent. The parties built a house on part of this land. The construction of this house was likely funded from the parties’ joint savings to a significant extent. Both parties were involved in the construction process for the new house albeit the husband was predominantly involved.
Following separation and after late 2019, the children did not have any contact with the wife and the Court takes into account the husband’s sole care of the children since that time to date. The Court observes in this context that it is likely that the husband utilised the parties’ joint savings, to some extent, to assist him to care for the children, although post-separation he also had financial support from his family and network of friends, as well as $50,000 from an interim property distribution. And further, the Court observes that the eldest child Mr X, who turned 18 years in 2022, has been living with his paternal aunt in Australia whilst attending university where he has completed at least one year of his studies, albeit that he has been staying with the husband in Country G between university semesters.
Following separation, construction started for the business (U Business, Country G) on the land at Town J. It is likely that the husband utilised, to a significant extent, the parties’ relationship savings to build this business whilst observing that he had borrowed $150,000 from a Country G bank in about early 2022.
Following separation, the husband has lived (and continues to live) in the house constructed on the Town J land with his parents. The wife lived with her parents in their home in City S post‑separation and later, in about mid-2021, she moved to live in Country R where she has a temporary visa to live and work.
The parties each accumulated superannuation entitlements during their relationship but again, the husband has not worked in paid employment since before separation, and the wife has only returned to paid employment in Country R and there is no evidence that she has accumulated superannuation or a pension in that country.
The husband contended that his overall contributions should be assessed at 65 per cent.
The wife contended that her overall contributions should be assessed at 47.5 per cent.
Taking into account all the above discussed matters, and viewing the parties’ contributions holistically, the Court finds that the parties’ contributions to both non-superannuation assets and superannuation assets should be assessed at 57.5 per cent to the husband and 42.5 per cent to the wife, resulting in a disparity of $277,369.
SECTION 75(2) OF THE ACT
The husband and wife are both presently aged 50.
The parties are both in good health.
The wife contended that no adjustment should be made in favour of either party under section 75(2), taking into account the fact that the husband likely owns the holiday rental business, which was contended to be a significant financial resource which did not enter the final balance sheet, and the wife’s income was quite modest, contrasted against the husband’s continued care of the children.
The husband contended that a 5 per cent adjustment should be made in his favour on account of section 75(2) factors, in particular by reason of his future care of the parties’ children, Mr X aged 19 years, and Y aged 16 years.
Mr X attends university as a student and flies between Australia and Country G between semesters to stay connected with the paternal family and friends in Country G. The husband arranged for Mr X to live with his sister in Australia; he pays money to his sister to support her in allowing Mr X to live with her. Mr X’s mental health is generally very up and down; he has struggled with university, and cannot live on his own. The husband assists Mr X with payment of medical expenses and other expenses such as textbooks.
Y was diagnosed with autism at aged four years and did not speak until he was five and a half years old. He obtains additional learning support at school. He also experiences emotional outbursts and bouts of depression. He attends therapy to address his behavioural concerns on a regular basis which the husband pays for.
As to the parties’ respective earning capacities, the husband continues not to work in paid employment, with the Court observing that he used to work as a professional and often was in receipt of a substantial income; he has worked with Z Company. The wife works as an educator in Country R earning a modest income. She may have some real opportunity in due course to return to Australia and work as an educator and thereby earn a greater income than she is now earning in Country R (her Financial Statement filed 16 February 2024 asserts that she earns an average weekly amount of $506 in her work in Country R). The Court would assess that the husband’s earning capacity is likely significantly greater than the earning capacity of the wife.
The husband is a shareholder and director of H Ltd which owns the business name U Business, Country G. Again, the Court does not accept that the husband holds his shareholding in this company on trust for his father. It is likely that the husband owns that business. The evidence suggests that the business has significant facilities including accommodation for several people, conference facilities and a swimming pool. The husband has failed to disclose the financial position relating to the operation of that business. The ownership of that business is likely a significant financial resource available to the husband which the Court takes into account.
Taking into account the above discussed matters, there should be no adjustment in favour of either party under section 75(2).
JUSTICE AND EQUITY
The husband’s 57.5 per cent of the net property pool ($1,849,126) is $1,063,247. Taking into account the $50,000 interim distribution already received, he should receive $1,013,247.
The wife’s 42.5 per cent of the net property pool ($1,849,126) is $785,878. Taking into account the $50,000 interim distribution already received, she should receive $735,878.
The wife sought an equalisation of the parties’ superannuation entitlements. The husband sought no splitting of superannuation. The Court refers to its discussions above under “Contributions”. Inter alia, the parties are now aged 50 years, and the Court notes the wife’s lower income earning capacity compared to the husband. There should be an equalisation of the parties’ superannuation. Such equalisation (as opposed to apportioning superannuation 57.5 per cent to the husband and 42.5 per cent to the wife) will result in the husband receiving a greater cash payment from the wife which may better enable him to reduce his debt.
Should the husband retain:
(a)The Country G properties: $951,140;
(b)The bank account balances in his name: $1,807;
(c)50 per cent of the parties’ superannuation ($264,575): $132,287;
Totalling $1,085,234;
Less liabilities:
(d)L Bank: $150,000;
(e)O School fees: $40,000;
Leaving net: $895,234,
and the wife retain:
(a)The net sale proceeds of the sale of Suburb C & Suburb E held in trust: $714,292;
(b)The bank balances in the joint accounts: $57;
(c)The bank account balances in her name: $7,255;
(d)50 per cent of the parties’ superannuation ($264,575): $132,287;
totalling $853,891,
then the wife will need to pay the husband $118,013. This sum can be paid out of the above net sale proceeds held in trust.
The husband, accordingly, will be left with the Country G property which includes a financial resource, the business, and a house. He will retain modest superannuation. He will receive a cash payment from the wife of $118,013 with which he can, if he chooses, reduce debt.
The wife, accordingly, will be left with a significant cash lump sum being the net sale proceeds of the parties’ former properties, less the payment out to the husband of the above $118,013, together with some modest bank account cash balances, and modest superannuation. With such funds, she may be in a position to purchase real estate for accommodation.
The Court is of the view that its proposed property adjustment orders will represent a just and equitable property settlement between the parties.
The Court makes orders accordingly.
I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 3 April 2024
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