SHELTON & YONG
[2020] FCCA 86
•31 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHELTON & YONG | [2020] FCCA 86 |
| Catchwords: FAMILY LAW – Undefended Hearing – where Wife legally represented for majority of procedural history – where matter set down for defended hearing – where Wife did not appear at defended hearing – where attempts made to serve material on Wife – where Wife did not appear at undefended Hearing. |
| Legislation: Family Law Act 1975 (Cth), ss.75, 79 |
| Cases cited: Hepworth v Hepworth (1963) 110 CLR 309. |
| Applicant: | MR SHELTON |
| Respondent: | MS YONG |
| File Number: | SYC 6441 of 2015 |
| Judgment of: | Judge Morley |
| Hearing date: | 16 July 2019 |
| Date of Last Submission: | 16 July 2019 |
| Delivered at: | Sydney |
| Delivered on: | 31 January 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Todd |
| Solicitors for the Applicant: | Sharon Payne Family Lawyers |
| No appearance by the Respondent. |
| Solicitors for the Independent Children's Lawyer: | Ms Bryson as agent |
ORDERS
The funds held upon trust for the parties as controlled moneys through the trust account of the Husband’s solicitors, Sharon Payne Family Lawyers, be paid out as follows:
(a)As to the whole of the interest accrued on those moneys from 16 July 2019 to the date of payment, to the Husband;
(b)Then, as to a further $758,172.40 to the Husband;
(c)Then, as to a further $8,882.00 to the Husband being payment in full by the Wife of the costs orders made in his favour on 21 June 2017 and 13 November 2017; and
(d)Then, as to $219,735.60 to the Wife.
The Husband is the sole owner in law and in equity as between himself and the Wife of all real property, personal property, financial assets and financial resources, including superannuation entitlements, currently in his power, possession or control.
The Wife is the sole owner in law and in equity as between herself and the Husband of all real property, personal property, financial assets and financial resources, including superannuation entitlements, currently in her power, possession or control.
In the event that either party fails, refuses, or neglects to comply with any part of this order in relation to the execution of any deed, instrument or document, then pursuant to section 106A of the Family Law Act 1975 (Cth) the Court appoints and authorises the Registrars of the Federal Circuit Court of Australia, Sydney Registry, to execute such deed, instrument, or document in the name of the party who so fails, refuses, or neglects and further appoints those Registrars to do all acts and things necessary to give validity and operation to the deed, instrument, or document.
This matter having been heard on an undefended basis as against the Respondent Wife, any Application that may be made by the Wife pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) is to be filed by no later than 28 days after service upon her of a sealed copy of the orders made today and of the Reasons for Judgment published today, or the orders made today and the Reasons for Judgment published today otherwise coming to her attention, whichever occurs first.
IT IS NOTED that publication of this judgment under the pseudonym Shelton & Yong is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 6441 of 2015
| MR SHELTON |
Applicant
And
| MS YONG |
Respondent
REASONS FOR JUDGMENT
Introduction
On 16 July 2019, I heard both the final parenting and final property settlement proceedings between the Applicant Husband, Mr Shelton (‘the Husband’), and Respondent Wife, Ms Yong (‘the Wife’) on an undefended basis as against the Wife.
The Husband was present before the Court and represented by Mr Todd of Counsel, instructed by Ms Payne, solicitor. Ms Bryson appeared as agent for Mr F as the Independent Child’s Lawyer. There was no appearance by or on behalf of the Wife.
At the undefended Hearing, I made final orders in relation to the parenting issues, and I reserved judgment in relation to the property settlement proceedings and, accordingly, these Reasons relate to the property settlement issues between the parties.
Proceeding on an undefended basis
The proceedings were commenced on 30 September 2015 with the filing of an Initiating Application with a Financial Statement and affidavit by the Husband. The first return date of the Initiating Application was 8 December 2015, when the matter came on before Judge Henderson (as her Honour then was). The Husband appeared with his legal representative, and there was no appearance by or for the Wife, despite the Initiating Application and supporting documents having been served on the Wife prior to the first return date. The matter was next mentioned before her Honour on 24 May 2016. On that occasion, the Husband was present and represented, and the Wife was also present before the Court and represented by a legal practitioner.
The matter went through quite a number of mentions before the Court, a Child Dispute Conference on 12 October 2017, and a Conciliation Conference with the Registrar on 16 August 2016.
On 27 November 2017, an order was made under section 68L of the Family Law Act 1975 (Cth) (‘the Act’), appointing an Independent Child’s Lawyer to represent the interests of the parties’ child, [X] born … 2011. An order was made by consent for preparation of a Single Expert’s Report in relation to the parenting issues on 9 July 2018.
The parties attended interviews with Mr A, child and family consultant, for preparation of the Single Expert’s Report on 15 November 2018, and the Wife and the child were further interviewed on 9 January 2019.
Following her non-appearance at the first return date on 8 December 2015, the Wife was represented at each and every Court event through to and including the appearance before her Honour on 30 January 2019.
The Wife was represented by three different legal firms through the course of the proceedings, with the last of those firms, B Solicitors, filing a Notice of Address for Service on behalf of the Wife on 1 September 2017. A solicitor for that firm, Ms C, appeared on the Wife’s behalf on 27 November 2017 and each mention thereafter, up to and including the mention on 30 January 2019.
On 12 July 2018, an order was made by her Honour, setting the matter down for a final Hearing on 29 and 30 April and 1 May 2019. On that same occasion, an order was made by her Honour, following an interim Hearing, allowing the Wife to receive $50,000 interim distribution from moneys at that time, and still, held upon trust for the parties in the trust account of the Husband’s solicitors (as controlled moneys). The Wife did receive those moneys pursuant to that order. Though the matter had been set down for Hearing over three days in April and May 2019, the matter remained listed, pursuant to a previous interim order, on 30 January 2019 for a mention following the release of the Single Expert’s Report.
The Single Expert’s Report was released by an order of her Honour Judge Boyle, made 11 March 2019, and accordingly it was not released by the time of the mention before Judge Henderson on 30 January 2019. Nonetheless, that January mention did proceed, and her Honour made an order confirming the final Hearing dates as previously set and made trial directions, including for filing of trial affidavits, a joint tender bundle, and Case Outlines. Her Honour granted leave to the parties to relist the matter on Application to her Honour’s Associate in Chambers if anything arose after release of the Single Expert’s Report.
As the Wife was represented at the mention before the Court on 12 July 2018 when the dates for final Hearing were set, she is presumed to have had notice of and be aware of the dates set for final Hearing. No evidence has been presented in the matter at any time to rebut that presumption.
Further, as the Wife was represented before the Court on 30 January 2019, when an order was made by her Honour confirming those final Hearing dates, the Wife is presumed to have had knowledge of what transpired before the Court on that date. There has been no evidence before the Court at any time to rebut that presumption.
On 13 March 2019, a Notice of Withdrawal as Lawyer was filed by B Solicitors, indicating that they no longer acted for the Wife in the proceedings, and confirming that they had served a Notice of Intention to Withdraw as Lawyer (‘Notice of Intent’) on the Wife by posting it to the Wife’s last known residential address together with emailing it to her last known email address at least seven days before the date of filing of the Notice, that is, no later than 5 March 2019.
A true copy of the Notice of Intent as served on the Wife was attached to the Notice of Withdrawal as Lawyer , and the Notice of Withdrawal as Lawyer stated that the Wife’s last known residential or business address and telephone number were set out on the Notice of Intent.
However, the address for the Wife set out on the Notice of Intent was D Street, Suburb E NSW 2… (‘the D Street property’). That was an incorrect address. That was the Husband’s address, the Wife had never resided there, and there is no evidence that she had ever been there at all.
A mobile telephone number, …95, was also stated on the Notice of Intent as the Wife’s last known telephone number as known to her withdrawing solicitors.
At no time was there any evidence before the Court of the postal address or email addresses to which B Solicitors had sent the Notice of Intent, but an inference is certainly raised that the document was served on the Wife via posting to her last known residential address as stated on that Notice – the incorrect address for the D Street property.
No trial affidavits were filed by or on behalf of the Wife pursuant to the trial directions made by her Honour on 30 January 2019. The last documents in the proceedings filed by the Wife were an Amended Response and an affidavit filed by her then solicitors, B Solicitors, on 24 November 2017.
The matter came before me for the final Hearing commencing 29 April 2019. Mr Todd of Counsel appeared for and with the Husband. There was no appearance by or on behalf of the Wife, and Mr F appeared as Independent Child’s Lawyer (‘ICL’). On the non-appearance of the Wife, Mr Todd pressed for the matter to proceed on behalf of the Husband on an undefended basis as against the Wife. Mr F as ICL made submissions that it was not in the subject child’s best interest to delay the matter any further and also pressed for the matter to proceed on an undefended basis as against the Wife.
However, I had noted in examining the Notice of Withdrawal as Lawyer, filed by the Wife’s previous representatives on 13 March 2019, that the address stated as her last known residential address was the same address as the Husband’s current residential address. The trial evidence filed in the Husband’s case, being his affidavit affirmed 27 March 2019 and an affidavit by his now Wife, Ms G, affirmed 27 March 2019, made it abundantly clear that they resided at that address as their usual place of residence and matrimonial home, and that the Wife did not reside there and had never so resided. It appears that the stating of that address on the Notice of Intent was a clerical error by the Wife’s former solicitors.
Nevertheless, as discussed above, the Wife had notice that the matter was listed for final Hearing, commencing 29 April 2019. Whether or not she was, at that time, fully aware that her solicitors had ceased to act on her behalf, it was incumbent upon her to either be before the Court on that day for the final Hearing or to have her absence explained and the relevant leave sought by a legal representative. No communication of any kind had been received by the Court, by the solicitors for the Husband, by the Husband himself, or by the ICL.
I made interim orders in relation to the parenting issues,[1] and I made an order that a copy of the orders made that day was to be served on the Wife personally, in compliance with rule 6.07 of the Federal Circuit Court Rules 2001 (Cth), within 14 days, by a person to whom the Wife is personally known, other than the Husband, or by a person aided in identifying the Wife by possession of at least two photographs of the Wife.[2]
[1] Orders made 29 April 2019 by Judge Morley, [1]-[13].
[2] Orders made 29 April 2019 by Judge Morley, [14].
I ordered that within five days of being served with a copy of those orders, the Wife was to contact the ICL, Mr F, on a telephone number stated in the orders, to make an appointment to take the child to the ICL’s office for the purpose of a conference.[3]
[3] Orders made 29 April 2019 by Judge Morley, [15].
I made an order that the Wife was to attend at the Court in person on 16 July 2019, whether or not she was legally represented at the time.[4]
[4] Orders made 29 April 2019 by Judge Morley, [17].
I made an order that, in the event that the Wife did not attend at Court on 16 July 2019 at 11:30AM, the matter may proceed to final Hearing on an undefended basis on that day and at that time, without any further notice to the Wife.[5]
[5] Orders made 29 April 2019 by Judge Morley, [18].
I made an order for a Mandarin interpreter to be provided by the Court for the assistance of the Wife on 16 July 2019, as was provided and present at the Court on 29 April 2019, and I reserved the costs of the ICL and the Applicant Father of 29 April 2019.[6]
[6] Orders made 29 April 2019 by Judge Morley, [19].
I adjourned the parenting issues proceedings to 16 July 2019 at 11:30AM for further interim Hearing and, in the event that the Wife was not present before the Court on that day, for final Hearing on an undefended basis.[7]
[7] Orders made 29 April 2019 by Judge Morley, [16].
I adjourned the property settlement proceedings for either mention, further directions, or undefended Hearing at 11:30AM on 16 July 2019.[8]
[8] Orders made 29 April 2019 by Judge Morley, [23].
In relation to the property proceedings, I repeated the orders set out above in relation to the requirement that the orders be served personally on the Wife within 14 days as described above, that the Wife was to attend Court in person whether or not she was legally represented, at 11:30AM on 16 July 2019 and that, in the event that she did not so attend, the matter may proceed to final Hearing on an undefended basis as to property on that day without any further notice to the Wife.[9]
[9] Orders made 29 April 2019 by Judge Morley, [24]-[26].
I made an order that the Wife was to prepare, file, and serve an affidavit setting out the details relating to her nonappearance before the Court at 10:00AM on 29 June 2019 and to file and serve that affidavit by no later than 14 June 2019.[10]
[10] Orders made 29 April 2019 by Judge Morley, [27].
I made Notations setting out the facts relating to the defective Notice of Intent and Notice of Withdrawal as Lawyer as detailed above, so that that information would be before the Wife on her receiving a copy of the orders made 29 April 2019.[11]
[11] Orders made 29 April 2019 by Judge Morley, Notation [B]-[D].
The matter came on before me on 16 July 2019 and, again, there was no appearance by or on behalf of the Wife. I considered an affidavit by the solicitor for the Husband, Ms Payne, affirmed 10 July 2019 and filed that day, detailing the steps that had been taken to attempt to serve a copy of the orders made 29 April 2019 on the Mother, other than by personal service:[12]
[12] Affidavit of Sharon Payne affirmed 10 July 2019, [4]-[10].
a)On 1 April 2019, the Husband’s solicitors made inquiries of B Solicitors, requesting an updated address and last known email address for the Wife, and were informed by an email from those solicitors on 1 April 2019 that the Wife’s last known email address was (omitted).[13]
[13] Affidavit of Sharon Payne affirmed 10 July 2019, [4], exhibit SP2.
b)On 4 April 2019, the Husband’s solicitors emailed an attachment copy of the Husband’s trial affidavit, filed 27 March 2019, and the exhibits to that affidavit to the said email address.[14]
[14] Affidavit of Sharon Payne affirmed 10 July 2019, [5](a), exhibit SP3.
c)On 28 April 2019 they emailed a copy of the Husband’s outline of case to that email address.[15]
d)On 7 May 2019, they emailed a copy of the orders made by the Court on 29 April 2019 to that email address.[16]
e)No reply was received in relation to any of those three emails.[17]
f)On 7 May 2019, an employee of the Husband’s solicitors telephoned B Solicitors and requested confirmation of the Wife’s contact details and received confirmation that the email address they had on file for the Wife was the abovementioned email address.[18]
g)In an attempt to comply with the orders for personal service on the Wife of 29 April 2019, the Husband’s solicitors retained Risk and Security Management, a firm of process servers, who attempted to serve the documents, including a copy of the orders made 29 April 2019, on the Wife at her last known residential address, being H Road, Suburb I NSW. They also attempted to serve the Wife at Suburb I Public School, the school being attended by the child and at which the child was at that time enrolled. Attempts to that effect were made variously on 9, 10, 16, 17, 20, 24 and 28 May 2019 and 17 June 2019.[19]
h)The enrolment forms for the child at Suburb I Public School indicated a post office box address at PO Box 38 Suburb E NSW 2075 as the Wife’s mailing address. A copy of the orders made 29 April 2019 were sent to that post office box address on 21 June 2019. The documents were not returned from that address, and the solicitors for the Husband have had no reply to that correspondence.[20]
i)On 21 June 2019, the Husband’s solicitors sent a text message to mobile telephone number (omitted), being the mobile telephone number stated as the last known telephone number of the Wife in the Notice of Withdrawal as Lawyer and Notice of Intent filed by B Solicitors on 13 March 2019. The affidavit deposes that:
We informed Ms Yong that the matter is listed in Court at 11.30 am on 16 July 2019.[21]
j)The solicitors for the Husband did not receive any reply to that text message.[22]
k)On the child’s enrolment form for Suburb I Public School, the Wife had provided a contact email address of (omitted). On 21 June 2019 and 9 July 2019, the solicitors for the Husband sent an email to that email address, enclosing a letter, a copy of the orders made by the Court on 29 April 2019 and a copy of the Husband’s Case Outline document, filed 28 April 2019.[23] The email and the letter attached thereto both stated:
[15] Affidavit of Sharon Payne affirmed 10 July 2019, [5](b), exhibit SP4.
[16] Affidavit of Sharon Payne affirmed 10 July 2019, [5](c), exhibit SP5.
[17] Affidavit of Sharon Payne affirmed 10 July 2019, [5].
[18] Affidavit of Sharon Payne affirmed 10 July 2019, [6], exhibit SP6.
[19] Affidavit of Sharon Payne affirmed 10 July 2019, [7], exhibit SP7.
[20] Affidavit of Sharon Payne affirmed 10 July 2019, [8], exhibit SP8.
[21] Affidavit of Sharon Payne affirmed 10 July 2019, [9], exhibit SP9.
[22] Affidavit of Sharon Payne affirmed 10 July 2019, [9].
[23] Affidavit of Sharon Payne affirmed 10 July 2019, [10].
…
We confirm that you are required to attend the Federal Circuit Court of Australia at Sydney at 11.30 am on Tuesday, 16 July 2019.
We note that rule 25.12 of the Federal Circuit Court Rules specifies that a failure to attend a Hearing, the Court has the right proceed with the Hearing as if the Application were undefended.
We ask that you confirm receipt of this email and call our office urgently on (02) 8626 ….[24]
[24] Affidavit of Sharon Payne affirmed 10 July 2019, exhibit SP10.
On 16 July 2019, I made an order in the following terms:
[21] The Court is satisfied in this matter, in relation to service and in relation to the knowledge of the Respondent Wife/Mother, that the matter is before the Court today for undefended Hearing, that it was appropriate to proceed with the Hearing in relation to both parenting and property settlement issues on the undefended basis, and that any Application that may be made by the Wife pursuant to rule 16.05 is to be made by not later than 28 days after service upon her of a copy of the orders made today, or those orders otherwise coming to her attention, whichever occurs first.[25]
[25] Orders made 16 July 2019 by Judge Morley, [21].
The order in relation to a time limit upon Applications by the Wife pursuant to Rule 16.05 was in relation to the final parenting orders made by me on that day, judgment in relation to the property settlement proceedings having been reserved on that day.
I note the judgment of the Full Court of the Family Court of Australia in Talbot & Talbot[26] at paragraph 21, where the Full Court said, in relation to matters proceeding on an undefended basis:
The essence of the relevant principles (exemplified by Kirby J [in Allesch & Maunz (2000) 203 CLR 172 at 39 and 40]) is that procedural fairness requires parties to be given a proper opportunity…[27]
[26] Talbot & Talbot [2015] FamCAFC 132
[27] Talbot & Talbot [2015] FamCAFC 132, [21] (original emphasis).
In this matter, on 16 July 2019, I was satisfied on the basis of all the factual matters set out above that the Wife had had the opportunity to be present and/or represented before the Court on both 29 April 2019 and 16 July 2019, and that it was therefore proper and appropriate to proceed on an undefended basis on 16 July 2019 in relation to both the parenting issues proceedings – in relation to which I made final orders, completing the matter on that date – and in relation to property settlement, in relation to which I heard the matter on an undefended basis that day and reserved judgment.
Material relied on at the hearing
In the undefended Hearing, the Husband relied on the following material by way of evidence:
a)His Amended Initiating Application filed 21 July 2017;
b)His affidavit affirmed 27 March 2019 and filed that day, together with the documents exhibited to that affidavit, amounting to 271 pages of exhibited documents;
c)The affidavit of Ms G (the Husband’s now Wife) affirmed 27 March 2019;
d)The Financial Statement of the Husband sworn or affirmed 27 March 2019 and filed that day;
e)A one-page document printed from the ANZ Bank’s internet site, indicating the current balance of the moneys held for the parties upon trust as controlled moneys by the Husband’s solicitors;
f)The Husband’s Case Outline document prepared by his counsel, Mr Todd, and dated 25 April 2019, to which was attached a Minute of the Orders sought by the Applicant Father (being orders different to those set out in the amended Initiating Application filed 27 July 2017);
g)The two Financial Statements filed by the Wife in the course of the proceedings, to which I was referred in the Husband’s material, being the Wife’s Financial Statement sworn 30 November 2016 and filed that day, and the Wife’s Financial Statement affirmed 31 March 2017 and filed 10 April 2017.
The Husband’s Case Outline document was tendered and marked as exhibit A1 only on the basis that it evidenced in the Minute of Order attached thereto the orders sought by the Husband on undefended Hearing. `
The Husband’s Case Outline document contained submissions on his behalf in relation to both the parenting and the property issues proceedings and a chronology. It also contained a balance sheet, however entry of the Husband’s Case Outline as an exhibit in the proceedings did not turn the assertions set out in that balance sheet into evidence in the proceedings, given the purpose for which the document was admitted into evidence.
In these Reasons, I have made findings in relation to the matrimonial asset pool based upon the admissible evidence and not based upon the balance sheet.
Background
The Husband was born on … 1971 in Country J and he is currently 48 years of age. He lives with his now Wife and their one year old child in Suburb E in New South Wales. He is currently employed as a technical professional by a business located in Suburb K in the Sydney area. He has been in that employment for the past 11 and a half years.
The Respondent Wife, Ms Yong, was born on … 1973 in Country J and is currently 46 years of age. There is no evidence as to the Wife’s current residential address or current employment circumstances. In her last Financial Statement affirmed by her on 31 March 2017, she asserted that she was a homemaker and not in paid employment.
The parties commenced their cohabitation in either very late 2001 or early 2002 in Country J. They married in March 2002 in Country J, and they migrated to Australia to live in 2004.
The only child of the parties’ relationship, [X], was born on … 2011 and he is currently eight years of age.
The parties separated under the one roof in March 2015. They remained separated under the one roof until 21 February 2017, when the Wife left the matrimonial home with the child. The Husband has not spent any time with the child since 21 February 2017, despite interim orders providing for him to spend time with the child and providing for family therapy to take place.
The parties were divorced on 18 October 2016, the divorce becoming final on 19 November 2016.
The parties cohabited as a couple for a period of about 14 years, remained residing under the same roof for a period of some two years after separation, and there has now been a period of about three years since the parties ceased residing under the same roof, a total period since the parties commenced their relationship of about 19 years.
The Husband is now married to Ms G. They married in Country J on … 2017. They have a child, [L], born … 2018. [L] is currently 1 year and 8 months of age. [L] is the only child of the relationship and the only child of Ms G.
These proceedings were commenced by the Husband filing an Initiating Application on 30 September 2015 confined to the issue of property settlement. The Wife filed her Response on 24 May 2016. The Husband filed an Amended Initiating Application on 21 July 2017 adding parenting issues to the proceedings. The Wife filed her Amended Response on 24 November 2017.
The Evidence
The parties commenced their relationship in Country J in late 2001 and married in 2002 and migrated to Australia in August 2004.
The Husband gives evidence that at the commencement of the parties’ cohabitation, he had savings in the sum of $30,000,[28] and that following the parties commencing their cohabitation, they both were in employment in Country J and jointly saved a sum of about $10,000 prior to migrating to Australia in August 2004.[29] As a consequence, they brought with them a sum of $40,000, being the Husband’s initial $30,000 savings and the $10,000 they had saved jointly.[30]
[28] Husband’s affidavit affirmed 27 March 2019, [28].
[29] Husband’s affidavit affirmed 27 March 2019, [30].
[30] Husband’s affidavit affirmed 27 March 2019, [31].
The Husband worked throughout the parties’ cohabitation, except for a period between their move to Australia in August 2004 and his obtaining employment as a labourer on a full-time basis in October 2004 and, also about that time, a second job as a part-time hospitality worker. In his first year of employment in Australia, the Husband earned about $40,000.[31]
[31] Husband’s affidavit affirmed 27 March 2019, [34].
The Wife was in employment whilst the parties lived together in Country J, and after their move to Australia in August 2004, the Wife was out of employment until July 2005 when she gained employment with M Employer.[32] The Wife remained in that employment until about the time of the birth of their child in 2011, at which time the Wife took a period of 10 months as maternity leave.[33]
[32] Husband’s affidavit affirmed 27 March 2019, [33].
[33] Husband’s affidavit affirmed 27 March 2019, [40].
I do not have any evidence in relation to remuneration, if any, received by the Wife during her period of maternity leave. At the end of the 10 months maternity leave, the Wife returned to work full time and then ceased working in October 2013 and, to the Husband’s knowledge, did not work from that time until she vacated the former matrimonial home at Suburb E on 21 February 2017.[34] The Wife’s employment history, if any, after that date is not known.
[34] Husband’s affidavit affirmed 27 March 2019, [43], [95].
The Husband has been in full-time employment since getting his first jobs in Australia in October 2004. In July 2007, the Husband changed his employment from labourer to employment in the IT industry. The Husband at the time of Hearing had been employed as an technical professional with the same employer for a period of some 11 years.[35]
[35] Husband’s affidavit affirmed 27 March 2019, [34]. [39].
In July 2006, the Wife purchased a real estate property in her sole name, being N StreetN Street, Suburb O New South Wales (‘the N Street property’) for a purchase price of $425,000.[36] By that time, the parties had accumulated $78,000 in savings. The Wife obtained a loan from Westpac Banking Corporation or its now subsidiary, St George Bank Limited, of $340,000, giving mortgage security for the loan over the Suburb O property. The Wife also received $7,000, being the first home buyer’s grant, from the Commonwealth government.[37]
[36] Husband’s affidavit affirmed 27 March 2019, [35], exhibit S7, S8.
[37] Husband’s affidavit affirmed 27 March 2019, [35].
The Husband deposes that the property was purchased in the Wife’s sole name on the advice of a mortgage broker engaged by the parties in relation to the purchase. At the time of purchase, the Husband was earning about $40,000 per year and the Wife was earning about $90,000 per year.[38]
[38] Husband’s affidavit affirmed 27 March 2019, [35].
The property was tenanted immediately after purchase at a weekly rental of $450, which was paid into an account in the Wife’s sole name. During the Wife’s ownership of the property, the rent increased up to a final rental figure of $790 per week.[39]
[39] Husband’s affidavit affirmed 27 March 2019, [36].
Most of the time that the N Street property was in the ownership of the Wife, the property was managed by the parties themselves. The Husband gives evidence that during that time, he performed personal work by placing advertisements in the property and real estate portal Domain, opening the property for inspection events, and receiving rental Applications and selecting tenants. There were occasions when tenants failed to pay the rent as due and the Husband became involved in pursuing them through Courts to obtain the back rent.[40]
[40] Husband’s affidavit affirmed 27 March 2019, [36].
In September 2006, a second Suburb O property was purchased in the Wife’s name, being P Street, Suburb O NSW (‘the P Street property’).[41] The P Street property was purchased for $310,000, again in the Wife’s sole name.[42] Monies saved by the Wife from her employment in the sum of $15,750 were applied toward the purchase, and the Wife obtained a loan in the sum of $299,000 from Commonwealth Bank of Australia.[43] The property was tenanted shortly after sale, and the property was negatively geared by the Wife for the first two or three years of her ownership of the property.[44]
[41] Husband’s affidavit affirmed 27 March 2019, [37].
[42] Husband’s affidavit affirmed 27 March 2019, exhibit S9.
[43] Husband’s affidavit affirmed 27 March 2019, exhibit S10.
[44] Husband’s affidavit affirmed 27 March 2019, [37].
Once again, the Husband undertook some work in relation to the P Street, Suburb O property, including interviewing prospective tenants, opening the property for inspection, preparing lease documents, performing general maintenance around the property from time to time, and organising for repairs to the air conditioner.[45]
[45] Husband’s affidavit affirmed 27 March 2019, [38].
In October 2011, the Wife refinanced both of the loans that she had obtained for purchase of the N Street and P Street properties, with ANZ Bank, obtaining two loan accounts, one for $214,000 (account ending …52) and one for $700,000 (account ending …79), being a total borrowing of $914,000.[46]
[46] Husband’s affidavit affirmed 27 March 2019, [40], exhibits S11, S12, S13.
The loan account secured on the N Street property was paid out to St George Bank in the sum of $329,090.30, and the loan account secured on the P Street property with the Commonwealth Bank was paid out in the sum of $292,032.50.[47] The Wife paid loan fees to ANZ Bank in the sum of $444.40, being a total deducted from the loan monies of $621,567.20.[48] This left a sum of $292,432.80 unused from the loan monies in the Wife’s hand, and that amount was deposited to the Wife’s ANZ Bank account ending …34 (‘the Wife’s account’) on 31 October 2011.[49]
[47] Husband’s affidavit affirmed 27 March 2019, exhibit S11.
[48] Husband’s affidavit affirmed 27 March 2019, exhibit S11.
[49] Husband’s affidavit affirmed 27 March 2019, [41].
In November 2013, the Husband purchased a property at Q Street Suburb E, NSW (‘the Suburb E property’) with the intent that it become the parties’ matrimonial home.[50] The purchase price was $1,110,000.[51] The property was purchased by the Husband in his sole name,[52] once again on advice received by the parties from their mortgage broker.[53] The Husband deposes that the advice from the mortgage broker was to the effect that the Wife already had two properties in her name and was, at that time, since October 2013, unemployed.[54]
[50] Husband’s affidavit affirmed 27 March 2019, [44].
[51] Husband’s affidavit affirmed 27 March 2019, exhibit S16.
[52] Husband’s affidavit affirmed 27 March 2019, exhibit S16.
[53] Husband’s affidavit affirmed 27 March 2019, [44].
[54] Husband’s affidavit affirmed 27 March 2019, [44].
The Husband obtained a loan from Westpac Banking Corporation in the sum of $880,000 and gave the bank a first registered mortgage over the property to secure that loan.[55] The Husband gives evidence that he had saved a sum of $60,000 from his employment, which he applied toward the purchase, and that the Wife applied a sum of $200,000 toward the purchase, “[coming] from [the Wife’s] bank accounts”.[56]
[55] Husband’s affidavit affirmed 27 March 2019, [44], exhibit S17.
[56] Husband’s affidavit affirmed 27 March 2019, [44].
There is no evidence as to from which account the sum of $200,000 was drawn by the Wife or how that sum was accumulated by the Wife. The Husband paid a sum of $260,000, being the $200,000 from the Wife and the $60,000 from him, toward the purchase as a 20% deposit and in relation to the stamp duty payable.[57] The parties moved into the property as the family matrimonial home in January 2014, and the Husband commenced paying the required repayments in relation to the loan account with Westpac Banking Corporation in the sum of $840 per week from his earnings.[58]
[57] Husband’s affidavit affirmed 27 March 2019, [44].
[58] Husband’s affidavit affirmed 27 March 2019, [45].
In February 2015, the Husband borrowed a further sum of $50,000 from Westpac Banking Corporation by way of an increase to the loan account, making a total owing as at February 2015 of $938,000.[59]
[59] Husband’s affidavit affirmed 27 March 2019, [46], exhibit S18.
The Husband applied $20,000 of that further borrowing to the purchase of R Ltd shares and applied the greater part of the rest toward living expenses, in circumstances where he found himself earning less than his required living expenses, taking into account the amount payable weekly as repayment of the loan account secured on the Suburb E property.[60]
[60] Husband’s affidavit affirmed 27 March 2019, [46], [53].
In 2014, the Wife sold the P Street property for $533,000.[61] The Husband was unaware of that sale, only becoming aware of it in December 2014.[62] The the sale settled on … 2014.[63]
[61] Husband’s affidavit affirmed 27 March 2019, exhibit S19, S20.
[62] Husband’s affidavit affirmed 27 March 2019, [47].
[63] Husband’s affidavit affirmed 27 March 2019, exhibit S19.
The Wife received a sum of $144,380 net to her ANZ account by a payment on 22 September 2014 in the sum of $50,223.01 and a payment on 26 September 2014 in the sum of $94,157. These deposits were added to the credit balance in that account as at 22 September 2014 of $426,678.94 to make a credit balance by 26 September 2014 of $571,058.95. This detail is discussed further below when discussing the evidence relating to the Wife’s account.[64]
[64] Husband’s affidavit affirmed 27 March 2019, [47], exhibits S21, S22.
In November 2015, the Wife sold the N Street property for a sale price of $780,000.[65] As at 30 June 2014, the amount owing on the loan account secured on the N Street property stood at $700,000. On 22 September 2014, a sum of $160,000 was paid into that loan account so as to reduce the amount owing to $640,000 and was characterised as “lump sum reduction”.[66] There is no evidence as to where that sum of $160,000 came from. Upon sale of the property, the loan account was paid out by deposit of $548,028.48 on 30 November 2015.[67]
[65] Husband’s affidavit affirmed 27 March 2019, [49], exhibit S23.
[66] Husband’s affidavit affirmed 27 March 2019, [50], exhibit S24.
[67] Husband’s affidavit affirmed 27 March 2019, exhibit S24.
There is no evidence available of the net sum actually received by the Wife from the sale of the N Street property. However, as the Husband deposes in his evidence, when the amount paid to the bank to pay out the loan account of $548,028.48 is deducted from the sale price of $780,000, a residue of $231,971.52 remains.[68]
[68] Husband’s affidavit affirmed 27 March 2019, [51].
There is no evidence in relation to any other costs paid by the Wife from this sum consequent upon the sale. It may be surmised that there may have been agents’ commission on the sale, though that is not a fact established on the evidence.
As I will discuss later in these Reasons, there is a necessary inference on the evidence that the Wife received the sum of $231,971.52 to herself, to the exclusion of the Husband, consequent upon the sale of the N Street property, and though she may have made further payments from that amount in relation to the sale, there is no evidence to establish that.
In the Husband’s Case Outline document chronology, an assertion is made that:
On 30 November 2015 – the Wife sells the first Suburb O property [refers to the N Street property] for $780,000, receiving net proceeds of sale of an amount of $149,637.08.[69]
I do not find that assertion is established as a fact on the evidence.
[69] Husband’s Case Outline filed 28 April 2019, 6.
I had short recourse to all of the affidavits filed by the Wife in these proceedings only in relation to any evidence contained therein relating to the sale by the Wife of the N Street property. In her affidavit sworn 13 April 2018 and filed that day, at paragraph [21] the Wife deposes that she received “the amount of about $149,637.08” as net proceeds from the sale.[70] The Wife then annexes an email from her conveyancing solicitor, which refers to a ‘statement’ that is not attached to that email, nor included in the annexure.[71] In two other affidavits filed by the Wife in these proceedings she asserts that she received net proceeds “of approximately $200,000” from the sale.[72]
[70] Wife’s affidavit sworn 13 April 2018, [21].
[71] Wife’s affidavit sworn 13 April 2018, annexure E.
[72] Wife’s affidavit affirmed 30 November 2016, [44]; Wife’s affidavit affirmed 24 May 2016,[18].
I note that the lump sum of $160,000 paid into and in reduction of the loan account secured on the N Street property on 22 September 2014 occurred on the same day that the Wife received part of the net proceeds of sale of the P Street property into her ANZ Bank account. However, on the evidence, I am unable to find that there is any connection other than that coincidence between the sale of the P Street property, and the reduction of the loan account secured on the N Street property by that sum of $160,000.
In his exhibit bundle referred to in his trial affidavit, the Husband provides copies of bank statements for the Wife’s ANZ account ending …34, covering a period from November 2011 through to the closing of that account on 24 July 2015. An examination of those statements raises many questions, none of which are answered in the absence of evidence from the Wife.[73]
[73] See, esp, Husband’s affidavit affirmed 27 March 2019, exhibits S13, S14, S21, and S22.
The statements also evidence sums of money being withdrawn from those accounts, the presumption therefore being that the withdrawals are by the Wife. There is no explanation as to how those withdrawn funds were applied.
Many of the questions relating to that account relate to the source of funds being paid into that account. Given that the operation of that account, and sums of money withdrawn from that account, which, as between the Husband and the Wife, were retained by the Wife, form an important part of the evidence upon which the Husband relies in asserting the property settlement division between the parties proposed in his case, I must go into some of the transactions on that account in some detail.
Where I refer to ‘the Wife’s account’, I am referring to the Wife’s account in her sole name with ANZ Bank, being account …34.
Between 30 November 2011 and 13 August 2013, the following deposits were made into the Wife’s account, this description not being exhaustive as there were many, many withdrawals of modest amounts (of some hundred or a few thousand dollars), and there were some other deposits of lesser amounts (being of hundreds or a few thousand dollars), none of which have been taken into account in this analysis.
a)A sum of $20,000 was deposited into the Wife’s account, the deposit being described on the bank statements as “transfer from Ms Yong”, on 30 November 2011, 1, 2, 14, 15, 19 December 2011, 6 February 2012, 23 July 2012, 29 October 2012, and 26 November 2012, a total of 10 occasions;
b)A sum of $50,000 was deposited on 2 December 2011, $46,500 was deposited on 5 December 2011, so that at 3 January 2012 the credit balance in the account was $504,063.38;
c)$10,000 was deposited on 29 August 2012 and on 3 April 2013; and
d)$15,000 was deposited on 4 April 2013.[74]
[74] Husband’s affidavit affirmed 27 March 2019, exhibit S14.
On 13 August 2013, a withdrawal of $585,185.31 was made.[75] It is the Husband’s evidence that he was not aware of the accumulation of the funds as described, he was not aware of the withdrawal of the funds as described, and that he received no benefit from those monies.[76]
[75] Husband’s affidavit affirmed 27 March 2019, exhibit S14.
[76] Husband’s affidavit affirmed 27 March 2019, [42].
Further deposits were made to the Wife’s account in a sum of $10,000 on 1 October 2013, $20,000 on 11 October 2013, and $400,000 on 18 October 2013.[77]
[77] Husband’s affidavit affirmed 27 March 2019, exhibit S14.
Deposits in the sum of $20,000 were made to the Wife’s account on each of 20, 21, 22, and on two occasions on 26 November 2013, and on 2, 3 and 4 December 2013, a total of eight occasions.[78]
[78] Husband’s affidavit affirmed 27 March 2019, exhibit S14.
On 8 January 2014, a withdrawal of $46,570 was made, and on 20 January 2014, a further withdrawal of $112,413.94 was made, leaving a credit balance in the Wife’s account of $417,752.25.[79]
[79] Husband’s affidavit affirmed 27 March 2019, exhibit S14.
On 15 May 2014 a deposit of $20,000 was made to the Wife’s account, and on 16 May 2014 a further deposit of $10,000.[80]
[80] Husband’s affidavit affirmed 27 March 2019, exhibit S14.
On 1 July 2014, the account had a credit balance of $430,846.62, and then on 22 and 26 September 2014 the net proceeds of sale of the P Street property were paid in to the Wife’s account. As at 26 September 2014, the account had a credit balance of $571,058.95.[81]
[81] Husband’s affidavit affirmed 27 March 2019, exhibit S21.
The credit balance of the Wife’s account then fell by way of many withdrawals to a credit balance of $121,553.03 on 27 February 2015,[82] followed by deposits of $20,000 to the Wife’s account on each of 2, 3, 4 and 6 March 2015, achieving a credit balance of $194,425.68 on 6 March 2015.[83]
[82] Husband’s affidavit affirmed 27 March 2019, S22.
[83] Husband’s affidavit affirmed 27 March 2019, S22.
A sum of $30,000 was withdrawn from the account on 26 June 2015.[84]
[84] Husband’s affidavit affirmed 27 March 2019, S22.
On 14 July 2015, $35,010 and $40,000 were withdrawn. A sum of $60,000 was withdrawn on 21 July 2015.[85]
[85] Husband’s affidavit affirmed 27 March 2019, S22.
The account was closed by the Wife on 24 July 2015 with the withdrawal on that day of $519.60.[86]
[86] Husband’s affidavit affirmed 27 March 2019, S22.
As I said earlier in these Reasons, none of the deposits are explained in the evidence as to the source of the funds so deposited, and no account is given in the evidence of how the sums withdrawn from the Wife’s account were applied.
It is the Husband’s evidence that he was unaware of the operations on that account prior to his commencement of these proceedings. Other than the possibility that the sum of $200,000, provided by the Wife from her held monies and used toward the purchase of the Suburb E property, may have come from some of the monies relating to that account, it is the Husband’s case that he has not received any benefit from the monies withdrawn.[87]
[87] Husband’s affidavit affirmed 27 March 2019, [46], [47].
The withdrawals from the Wife’s account between September 2014 and July 2015, when the account was closed, total $426,678.[88]
[88] Husband’s affidavit affirmed 27 March 2019, S22.
Most particularly, there is no evidence to explain where the sum of $400,000 deposited to the Wife’s account on 18 October 2013 came from.[89]
[89] Husband’s affidavit affirmed 27 March 2019, S14.
After the Husband had commenced these proceedings, he made an Application for interim orders that the Wife have exclusive occupation with their child of the Suburb E property, and that she be solely responsible as between the parties for paying the payments required on the loan account secured on the Suburb E property.[90]
[90] Application in a Case filed by the Husband on 28 October 2016.
Interim orders were made by consent on 7 December 2016 that:
a)Within seven days, the Wife place a sum of $39,572 into an offset facility associated with the loan account secured by mortgage over the Suburb E property;[91]
b)That such sum be paid from the Wife’s bank account and not be advanced from or repayable to any third party;[92] and
c)That upon such payment, she do all things necessary to authorise the mortgagee to automatically debit the offset facility for the repayments required on the home loan;[93]
d)That, within 56 days of the date of the orders, and contingent upon the Wife complying with the orders to pay the said sum into the offset facility, the Husband vacate the Suburb E property and remove all his personal possessions and belongings from the property, and from the date of his compliance the Wife had exclusive occupation of the Suburb E property;[94]
e)That in the event that the balance of the offset facility reached less than $10,000, the Wife was to forthwith deposit a further sum of $39,572 into the offset facility for payment of the required payments on the mortgage account secured by way of mortgage on the Suburb E property, and the Wife, upon obtaining exclusive occupation of the Suburb E property, was to be responsible for indemnifying the Husband in respect of statutory rates and charges and other utilities, including but not limited to water, electricity, insurances, and all outgoings and expenses in relation to the Suburb E property, payable by the Wife as and when they fall due;[95] and
f)That in the event that the Wife failed or omitted or neglected to make the payments into the offset facility account as required by the orders, the Husband was to do all things necessary to effect the sale of the Suburb E property,[96] that sale being conducted in accordance with further interim orders made by consent on that day.[97]
[91] Orders made 7 December 2016 by Judge Boyle, exhibit 1[1].
[92] Orders made 7 December 2016 by Judge Boyle, exhibit 1[2].
[93] Orders made 7 December 2016 by Judge Boyle, exhibit 1[3].
[94] Orders made 7 December 2016 by Judge Boyle, exhibit 1[6].
[95] Orders made 7 December 2016 by Judge Boyle, exhibit 1[7]-[9].
[96] Orders made 7 December 2016 by Judge Boyle, exhibit 1[11].
[97] Orders made 7 December 2016 by Judge Boyle, exhibit 1[12].
The Wife did not pay any sum, let alone the sum of $39,572, into the offset facility account.[98] On …2015, the Wife caused a caveat to be registered on title to the Suburb E property claiming an equitable interest by way of resulting trust consequent upon contribution by her to the purchase price.[99] The Husband, through his solicitors, organised for a lapsing notice to issue from the Land and Property Information Office NSW and the Wife’s caveat lapsed on … 2017.[100]
[98] Husband’s affidavit affirmed 27 March 2019, [60].
[99] Husband’s affidavit affirmed 27 March 2019, [62].
[100] Husband’s affidavit affirmed 27 March 2019, [62].
On … 2017, the Husband exchanged a contract for sale of the Suburb E property for a sale price of $2,080,000.[101] The same day that the Husband exchanged that contract for sale, the Wife lodged a second caveat on title to the Suburb E property, a caveat that she had prepared herself.[102] Following correspondence between the solicitors for the Husband and solicitors then acting for the Wife, the Wife’s solicitors provided a withdrawal of caveat, signed on the Wife’s behalf by someone from the Wife’s solicitors, on 2 June 2017, received by the Husband’s solicitors on 5 June 2017.[103] In the meantime, the Husband had made Application for a further lapsing notice and pursuant to that notice the caveat lapsed on 8 June 2017 at 2:00PM.[104]
[101] Husband’s affidavit affirmed 27 March 2019, [68], exhibit S31.
[102] Husband’s affidavit affirmed 27 March 2019, [69], exhibit S32.
[103] Husband’s affidavit affirmed 27 March 2019, [77]. See also [70]-[76], exhibits S33, S34, S35, S36, S37, S38.
[104] Husband’s affidavit affirmed 27 March 2019, [77].
The Husband’s sale of the Suburb E property settled on … 2017, with the net proceeds of sale (after all deductions for proper costs of sale and agent’s commission) being $1,104,954, which, pursuant to the orders made by consent on 7 December 2016, was applied in payment to the Husband of a sum of $50,000, and the balance being deposited into the trust account of the Husband’s solicitors to be held as controlled moneys.[105]
[105] Husband’s affidavit affirmed 27 March 2019, [79].
The release of $50,000 to the Husband and the requirement for the balance of the net proceeds of sale of Suburb E being placed in the trust account of the Husband’s solicitors and held as controlled moneys was further confirmed by an order of the Court made 21 June 2017 by her Honour Judge Henderson.[106]
[106] Orders made 21 June 2017 by Judge Henderson, [8].
By an order made 12 July 2018, a sum of $50,000 was released to the Wife from the moneys so held in trust from the sale of the Suburb E property.[107]
[107] Orders made 12 July 2018 by Judge Henderson, [4].
On 10 April 2017, the Wife had filed an Application in a Case seeking to vacate the orders made on 7 December 2016 relating to her payment of $39,572 into the offset facility account, exclusive occupation, sale on default and so forth.
That Application had its first return date before the Court on 21 June 2017, at which time the Application was dismissed “for want of prosecution”,[108] though the order entered for that day indicates that “Mr AA” appeared for “the Respondent”, and the Wife was ordered to pay the Husband’s costs in the sum of $3,602.[109]
[108] Orders made 21 June 2017 by Judge Henderson, [6].
[109] Orders made 21 June 2017 by Judge Henderson, [7].
By an order made by consent on 9 July 2018 relating to the appointment of the Single Expert, Mr A, to prepare a Single Expert’s Report in relation to the parenting matters,[110] an order was made that the costs relating to preparation of the expert’s report were to be paid from the controlled moneys held by the Husband’s solicitors from the sale of Suburb E, and in consequence, a sum of $11,000 was paid to the S Psychologists on 2 November 2018, leaving a credit balance of the trust fund of $985,890.25 as at 16 November 2018.[111]
[110] Orders made 9 July 2018 by Judge Henderson, exhibit 1.
[111] Orders made 12 July 2018 by Judge Henderson, [2].
In paragraph 81 of the Husband’s affidavit, he asserts that the Wife has had the benefit of a sum of $967,273.01 to the exclusion of any benefit accruing to him from those moneys, particularised in that paragraph as:
a)The $590,893 that was a credit balance in the Wife’s account as at 4 April 2013;
b)$144,380.01 being the net sale proceeds of the P Street property received by the Wife on 22 and 26 September 2014 into the Wife’s account; and
c)$232,000 being the presumed net proceeds of sale of the N Street property received by the Wife on settlement of that sale on 13 November 2015 (this last figure being something of a “rounding” from the more precise figures given in the Husband’s evidence in his affidavit elsewhere.)[112]
[112] Husband’s affidavit affirmed 27 March 2019, [81].
The Husband’s evidence is that he was primarily responsible for the homemaker role within the family unit, being primarily responsible for the shopping, cooking, housecleaning, and general maintenance around the home.[113]
[113] Husband’s affidavit affirmed 27 March 2019, [92], [93].
Once the Wife returned to full-time work at the end of her 10 months maternity leave following the birth of the child, the child was placed in day care two to three days per week, and the parties engaged a nanny to look after the child on weekdays when the child was not in day care.[114] On the days the nanny was caring for the child, the nanny also prepared the parents’ dinner or, if the nanny did not prepare the dinner, the Husband cooked the parents’ dinner on his return from work.[115] The Husband gives evidence that he was principally responsible for the care of the child in the evenings after he had returned from work and on weekends. The Husband dropped the child to day care and collected the child from day care.[116]
[114] Husband’s affidavit affirmed 27 March 2019, [91], [92].
[115] Husband’s affidavit affirmed 27 March 2019, [93].
[116] Husband’s affidavit affirmed 27 March 2019, [92].
Following the parties’ separation in March 2015, and during the period that the parties continued to reside under the one roof at the Suburb E property,[117] the Husband says that he mainly resided on the ground floor of the property, and the Wife and child mainly resided on the second floor of the property, the child being required by the Wife to spend almost all of the child’s at-home time in the Wife’s bedroom with the Wife.[118]
[117] Husband’s affidavit affirmed 27 March 2019, [95].
[118] Husband’s affidavit affirmed 27 March 2019, [96].
In this way, the Husband asserts that the Wife prevented him from participating to any degree in the parenting of the child following their separation.[119] During that period of time of separation under the one roof, the Wife cooked her own food and the food for the child, whilst the Husband performed homemaker duties only for himself, other than general maintenance of the property on behalf of the family unit.[120]
[119] Husband’s affidavit affirmed 27 March 2019, [96].
[120] Husband’s affidavit affirmed 27 March 2019, [97].
The child slept in the Wife’s bedroom.[121] The Husband deposes that on occasions when the Wife detected the Husband and the child together, she would immediately say to the child “come on [X], go upstairs”, and the child would leave the Husband and go up to the Wife’s bedroom.[122] The Wife and child vacated the Suburb E property for a period of time between 19 April 2016 and 1 May 2016, the Wife taking her possessions and some furniture with her and bringing all of that back on 1 May 2016.[123] The Wife and child finally vacated the matrimonial home completely on 21 February 2017 in circumstances involving the police and assertions by the Wife of family violence on the part of the Husband, those assertions being denied by the Husband.[124]
[121] Husband’s affidavit affirmed 27 March 2019, [104].
[122] Husband’s affidavit affirmed 27 March 2019, [96].
[123] Husband’s affidavit affirmed 27 March 2019, [99], [100].
[124] Husband’s affidavit affirmed 27 March 2019, [105]-[110], [113]-[117], exhibit S50.
The Wife obtained an interim Apprehended Violence Order covering herself and the child for their protection from the Husband on 6 June 2017 from Suburb T Local Court.[125] The Husband says that he was not aware of the proceedings until the original Application and the interim order were served on him on 8 June 2017.[126]
[125] Husband’s affidavit affirmed 27 March 2019, [116].
[126] Husband’s affidavit affirmed 27 March 2019, [114].
A Hearing took place at Suburb T Local Court on … 2017 on a contested basis, as a result of which the Wife’s Application for the Apprehended Violence Order was dismissed and an order made by the presiding learned Magistrate that the Wife pay the Husband’s costs in the sum of $5,280 by 11 December 2017.[127] Those costs had not been paid by the Wife to the Husband as at the date of his affirming his affidavit on 27 March 2019.
The Law
[127] Husband’s affidavit affirmed 27 March 2019, [117], exhibit S51.
Financial Disclosure
Before embarking on any discussion of the law relating to how a property settlement is decided by a Court under section 79 of the Act, I must say something about disclosure.
The Husband asserts that in the course of the proceedings, he has made full and frank financial disclosure to the Wife.[128] There is no evidence to the contrary.
[128] Husband’s affidavit affirmed 27 March 2019, [83], [84].
The Husband asserts that the Wife has failed to make full and frank disclosure, in fact any real disclosure at all, to the Husband in the proceedings.[129] Certainly, the Husband’s evidence is that the transactions by way of deposits to and withdrawals from the Wife’s account detailed earlier in these Reasons have never been addressed or explained by the Wife, and he has not been provided with disclosure relating to any accounts or otherwise that were the source of the monies deposited to the Wife’s account or as to how the monies withdrawn from the account, and in particular the sum of $585,185.31 withdrawn on 13 August 2013 was disbursed.[130]
[129] Husband’s affidavit affirmed 27 March 2019, [82]-[88].
[130] Husband’s affidavit affirmed 27 March 2019, [87].
Prior to commencement of the property proceedings by the Husband by filing his Initiating Application on 30 September 2015, the Husband caused a letter to be sent by his solicitors to the Wife requesting that she provide disclosure. By that letter of 27 May 2015, a copy of which was exhibited as S44 to the Husband’s affidavit, the Wife was requested to make specific disclosure by way of “…a statement of your assets, liabilities and financial resources”,[131] along with copies of stated financial documents including
a)Bank accounts and credit card statements for the previous 12 months;
b)Three pay slips;
c)Her last three taxation returns and notices of assessments;
d)Her most recent superannuation statement for any superannuation funds in which she had an interests
e)Documents evidencing any rent received by her on the N Street and P Street properties; and
f)Documents evidencing the sums received by her from the sale of the Suburb O property including settlement statement and evidence of the account into which the proceeds were paid.[132]
[131] Husband’s affidavit affirmed 27 March 2019, exhibit S44.
[132] Husband’s affidavit affirmed 27 March 2019, exhibit S44.
The Wife was provided with that letter with copies of the brochures approved by the Court entitled “Marriage, Families and Separation”, “Before you file – pre-action procedures in property matters” and “Duty of disclosure”.[133]
[133] Husband’s affidavit affirmed 27 March 2019, exhibit S44.
No response was received to the letter of 27 May 2015,[134] and a follow-up letter was sent by the Husband’s solicitors to the Wife on 24 June 2015 requesting that disclosure be made within seven days of the date of that letter so that matters could “progress toward an amicable settlement”.[135]
[134] Husband’s affidavit affirmed 27 March 2019, [82].
[135] “This matter will not be able to progress towards an amicable settlement without the provision of disclosure documents.” Husband’s affidavit affirmed 27 March 2019, exhibit S45.
The letter confirmed that those solicitors were in receipt of the Husband’s financial disclosure documents, and the same would be conveyed to the Wife under cover of separate letter.[136] That letter was sent with the Husband’s disclosure documents on 1 July 2015.[137]
[136] Husband’s affidavit affirmed 27 March 2019, exhibit S44.
[137] Husband’s affidavit affirmed 27 March 2019, [84].
A further letter was sent by the Husband’s solicitors to the Wife requesting disclosure dated 6 July 2015,[138] and on 29 July 2015 the Husband’s solicitors received some financial disclosure from the Wife consisting of five pages of bank statements relating to the Wife’s bank account (the ANZ account referred to earlier in these Reasons), and some statements relating to a Commonwealth Bank account in the Wife’s name, but with any details relating to transactions on the accounts by way of identification of accounts from which monies were transferred, or into which monies were transferred, being redacted.[139]
[138] Husband’s affidavit affirmed 27 March 2019, [85], exhibit S46.
[139] Husband’s affidavit affirmed 27 March 2019, [86], exhibit S47.
The Husband deposes that he has not received any other financial disclosure from the Wife other than her Financial Statements sworn or affirmed by her on 30 November 2016, and affirmed by her on 31 March 2017.
In relation to those Financial Statements filed by the Wife, the Husband points out that in a Financial Statement sworn or affirmed 30 November 2016 at item 43, the Wife deposes that under “Other personal property” in the section “Property owned by you” that she had an account with Bank U entitled “[X] Educational Fund” with a credit balance of $130,000, the whole of which was the Wife’s share of that account.[140]
[140] Wife’s Financial Statement sworn or affirmed 30 November 2016, 7 [43].
By order made by consent on 7 December 2016, the Wife was restrained from dealing with the Bank U account referred to in item 43 of her Financial Statement filed 30 November 2016, except for compliance with the orders relating to the deposit of the sum of $39,572 into the offset facility account (which was not complied with by the Wife) and reasonable living expenses not exceeding $1,200 per week.[141]
[141] Orders made 7 December 2016 by Judge Boyle, [2], [14].
In the Wife’s Financial Statement sworn 31 March 2017 and filed 10 April 2017, she deposed at item 43 “Other personal property” in the section on “Property Owned by You” that the Bank U account being “[X]’s Education Fund” had a balance of $6,000. Accordingly, a sum of $124,000 had been dissipated from that account over a period of four months, though what the balance of that account was at 7 December 2016, when the relevant order was made, is not known. The Wife has not filed any Financial Statement past that one filed 10 April 2017, affirmed by her on 31 March 2017.
In financial proceedings between parties under the Act, full and frank disclosure by each party of their financial circumstances is required and is an essential part of the operation of the relevant parts of the Act.
Rule 24.03 of the Federal Circuit Court Rules 2001 (Cth) relates to each party to financial proceedings under the Act making full and frank disclosure of his or her financial circumstances in a Financial Statement or affidavit filed in the proceedings, and parties are required under rule 24.04 to produce certain documents relating to their financial circumstances to the other party within 14 days after the first Court date.[142] Beyond that, the Act, the Rules, and the decided cases make it abundantly clear that full and frank financial disclosure is the obligation of all parties to financial proceedings under the Act.
[142] Federal Circuit Court Rules 2001 (Cth), rr 24.03, 24.04.
I am satisfied on the evidence, and I find that the Wife has failed to make full and frank financial disclosure. In particular, I find that the Wife has failed to make any disclosure relating to the vexed questions of the source of the funds deposited over the period from 2011 to 2015 into her ANZ Bank account, and the application of the significant sums of money withdrawn from that account, in particular for the purposes of these Reasons, the sum of $585,185.31 withdrawn from the Wife’s account on 13 August 2013.
There is a clear obligation for all parties to proceedings relating to financial matters under the Act to make a full and frank disclosure of all relevant financial circumstances. A mere compliance with the rules of Court or practice directions does not alter the basic principle of that need for full and frank disclosure.[143] Rule 24.03 of the Federal Circuit Court Rules 2001 (Cth) requires, as stated above, that all parties make full and frank disclosure of all relevant financial circumstances in their financial proceedings. The duty of full and frank financial disclosure has been referred to throughout the life of the Act in innumerable cases.[144]
[143] Oriolo & Oriolo (1985) 10 FamLR 665.
[144] See, eg, In the Marriage ofBlack (1992) 106 FLR 154 (‘Black & Kellner’); In the Marriage of Weir (1992) 110 FLR 403.
The duty is an absolute one.[145] Consequent upon the obligation of parties to make full and frank disclosure, where there is clear evidence of non-disclosure, the Court should not be unduly cautious in making findings in favour of the innocent party.[146] I am satisfied that the Wife has failed to make full and frank financial disclosure.
[145] In the Marriage of Kannis (2002) 172 FLR 464.
[146] Black & Kellner (1992) 106 FLR 154.
Property Settlement
The law relating to a property settlement between parties to a marriage starts with section 79 of the Act. Section 79(4)(e) incorporates the provisions contained in section 75(2) of that Act.
The starting point for the proper understanding of the legislative process mandated by section 79 of the Act is the decision of the High Court of Australia in Stanford.[147]
[147] Stanford & Stanford (2012) 247 CLR 108.
In that decision, the High Court held that section 79(2) requires that at the outset of the Court’s decision-making process relating to that section, the Court must consider whether or not, in all the circumstances, it is just and equitable to make an order under section 79(1) altering the interests of the parties to the marriage in property.
In deciding that question, the Court should start by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property identified as forming the matrimonial asset pool, and as a necessary part of that process, identify the liabilities of the parties according to ordinary common law and equitable principles and under legislation, and, one may say necessarily, identify according to ordinary common law and equitable principles and under legislation the rights, if any, of the parties in relation to any asserted resources of the parties that may, if it is considered just and equitable to proceed with the property settlement, be taken into account in the Court’s consideration of the matters referred to in section 75(2) of the Act, to which section 79(4)(e) directs the Court’s attention.[148]
[148] Stanford & Stanford (2012) 247 CLR 108; see especially [37].
The High Court noted in Stanford at paragraph 42:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).[149]
[149] Stanford & Stanford (2012) 247 CLR 108, [42].
In this matter, the parties have not only separated but have been divorced so as to end their marital relationship at law. It is the law in Australia that the circumstance of entering into a marriage does not itself invest either party to the marriage with an interest at law or in equity in the property of the other party to the marriage.[150]
[150] Hepworth v Hepworth (1963) 110 CLR 309, cited in Stanford & Stanford (2012) 247 CLR 108, [39].
The real estate properties that were purchased by the parties during the course of their marital relationship (being the N Street property, the P Street property, and the Suburb E property) were purchased in the individual names of the parties as sole registered proprietor, with the N Street and P Street properties in the Wife’s sole name, and the Suburb E property in the Husband’s sole name. Accordingly, if the matter is simply left to the existing legal and equitable interests of the parties in property, there can be no claim by either party to take a share of the other party’s property represented by the proceeds of sale.
I find that it is just and equitable to proceed with a property settlement under section 79 of the Act.
In determining what orders should be made having regard to section 79(4) of the Act, the Court must ensure that the terms of any property settlement order are themselves just and equitable.[151]
[151] Family Law Act 1975 (Cth), s 79(2).
I note here the following paragraphs of Stanford:[152]
[36] The expression "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. And while the power given by s 79 is not "to be exercised in accordance with fixed rules", nevertheless, three fundamental propositions must not be obscured.
[37] First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers to "altering the interests of the parties to the marriage in the property" (emphasis added). The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
[38] Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth, Dixon CJ observed that a power to make such order with respect to property and costs "as [the judge] thinks fit", in any question between husband and wife as to the title to or possession of property, is a power which "rests upon the law and not upon judicial discretion". And as four members of this Court observed about proceedings for maintenance and property settlement orders in R v Watson; Ex parte Armstrong:
The judge called upon to decide proceedings of that kind is not entitled to do what has been described as 'palm tree justice'. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down.
[39] Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is "just and equitable" to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that "[c]ommunity of ownership arising from marriage has no place in the common law". Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be "decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses". The question presented by s 79 is whether those rights and interests should be altered.
[40] Third, whether making a property settlement order is "just and equitable" is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised "in accordance with legal principles, including the principles which the Act itself lays down". To conclude that making an order is "just and equitable" only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.[153]
[152] Stanford & Stanford (2012) 247 CLR 108.
[153] Stanford & Stanford (2012) 247 CLR 108 (emphasis in original) (citations omitted).
In Bevan v Bevan,[154] the Full Court of the Family Court of Australia considered the High Court’s decision in Stanford and the High Court’s guidance therein on how section 79 is to be interpreted and implemented. The Full Court endorsed the continuing application of the four-step approach set out by the Full Court in Hickey,[155] noting that it is in the nature of a preferred approach to consideration of the appropriate property settlement under section 79 as opposed to being a statutory requirement. The four-step process referred to in Hickey at paragraph 39 is as follows:
a)First, to identify and value the property, liabilities and financial resources of the parties;
b)Second, to identify and assess the contributions of the parties and express them as a percentage of the net value of the property;
c)Third, to identify and assess any relevant factors under section 79(4)(d) to (g), including relevant matters referred to in section 75(2) (as required by section 79(4)(e)) and determine the adjustment, if any, to be made to the contribution entitlement percentage arrived at the second step; and
d)Fourth, to consider the effect of the result arrived at the end of consideration of the first three steps, and to resolve what order is just and equitable in all the circumstances.[156]
[154] Bevan v Bevan (2013) 279 FLR 1.
[155] Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395 (‘Hickey’).
[156] Hickey [2003] FamCA 395, [39].
The Full Court pointed out in Hickey that pursuant to the wording of section 79, there can only be one property settlement order under that section at any one time and that the one property settlement order is final, subject only to anything that may be properly done pursuant to section 79A of the Act.[157]
[157] See especially Hickey [2003] FamCA 395, [47].
The Full Court held in Fontana & Fontana:[158]
Indeed, the authorities are consistent in finding that assessing contributions is not an accounting exercise but a holistic one (Brandt & Brandt (1997) FLC 92-758; Norbis & Norbis (1986) 161 CLR 513).[159]
[158] Fontana & Fontana [2018] FamCAFC 63.
[159] Fontana & Fontana [2018] FamCAFC 63, [27].
The Court is required to consider the parties’ contributions made on and from the commencement of their relationship, during their relationship and following separation.[160]
[160] In the Marriage ofFerraro (1992) 111 FLR 124.
The approach to determining the appropriate percentage of the net value of property in relation to the contributions of the parties, at step two of the four-step process, requires an assessment of contributions by, or on behalf of, each of the parties in a holistic manner, rather than attaching specific contributions to a specific item of property and making a determination upon that basis, which would be to disregard the whole of the contributions made during the whole of the relevant period of the relationship by or on behalf of each of the parties. As the Full Court said in Dickons & Dickons[161] at paragraphs 14 to 16:
[14] As is plain from earlier decisions of this Court, regard must be had to the use made of contributions of various types so as to compare the contributions made by each of the parties during the course of, and over the length of, their relationship (see, for example, In the Marriage of Pierce (1998) FLC 92-844) But that is an entirely different proposition to, as it were, causally linking contributions with their asserted financial “product” or “value”. The former recognises that the nature, form and extent of contributions made by each of the parties might differ; the latter suggests that the absence of a causal link counts as no contribution at all.
[15] The search for a causal link might be seen to come instinctively to the necessary inquiry and all the more so when regard is had to s 79(4)(a) which refers to financial contributions made “…directly or indirectly…” “…to the acquisition, conservation or improvement of any of the property …” and goes on to also refer to the financial contribution made “…otherwise in relation to any of that last-mentioned property…” The terms of that sub-paragraph might, naturally enough, be seen to suggest a causal link between those contributions and the “financial product” which those contributions of that type are said to have produced. That same requirement might also be seen to suggest that relevant contributions of that type can be seen to be quantifiable – or, at least, conceptualised – in monetary terms, in contradistinction to contributions made pursuant to s 79(4)(c).
[16] While that apparent “causal connection” might be seen in s 79(4)(a) (and (b)), no such connection is apparent from the terms of s 79(4)(c); contributions of that latter type are not linked by the words of the sub-paragraph to the “…acquisition, conservation or improvement of any of the property…” or, indeed, to “property” at all. This is not a legislative oversight; the 1983 amendments to the Act which inserted the current s 79(4)(c) were specifically intended, relevantly, to remove any suggestion that there needed to be a causal link between contributions of that type and any particular asset or property. The Explanatory Memorandum to the Family Law Act Amendment Bill 1983 provides, at Clause 36, that a specific purpose of the re-casting of s 79(4) was, relevantly, to:
… revise sub-section 79(4) to remove the possibility of an interpretation of the sub-section requiring that there be a nexus between a spouse’s contribution and a specific item of property in section 79 proceedings …
[161] Dickons & Dickons [2012] FamCAFC 154.
I accept the Husband’s evidence that he did not receive any funds or benefit from the moneys expended by the Wife from that account, and in particular the substantial withdrawals made by the Wife in that period including, for example, $50,000 on 30 January 2015 and $200,000 on 6 February 2015.[188] Accordingly, I find that I should take into account that sum of $144,380.01 received by the Wife from the sale of the P Street property in my consideration of matters under section 75(2).
[188] Husband’s affidavit affirmed 27 March 2019, exhibit S22.
The actual amount of the net proceeds of sale received by the Wife on sale of the N Street property, and the disposal, if at all, of those moneys, are not matters that can be subject of findings on the evidence. However, on the evidence, I find that:
a)As between the Husband and the Wife, the Wife had sole benefit of the net proceeds of sale of the N Street property;
b)The property was sold for $780,000;
c)A sum of $548,028.48 was paid to the ANZ Bank to pay out fully the loan account secured by way of mortgage on that property; and
d)The balance of the proceeds of sale, being $231,971.52 (not $232,000 as asserted by the Husband in paragraph 81 of his trial affidavit) was retained by the Wife to her sole benefit, as between the Husband and the Wife.
Accordingly, I find that the total amount retained by the Wife, without reference to or consent of the Husband, both in the two years prior to the parties’ separation and in the year following the parties’ separation is a total of $761,536.84. That is the sum retained by the Wife to the exclusion of the Husband that I will take into account in my consideration of matters under section 75(2) of the Act. I will also take into consideration in that manner the sum of $50,000 received by the Husband from the net proceeds of sale of the Suburb E property pursuant to an interim order, and the sum of $50,000 received by the Wife pursuant to an interim order.[189]
[189] Orders made 21 June 2017 by Judge Henderson, [8].
Turning to the actual, as opposed to notional, property that is asserted by the Husband to compose the matrimonial asset pool, I find on the evidence that the pool is composed of the following:
a)The now remaining net proceeds of sale of the Suburb E property which at 16 July 2019 was the sum of $986,792.67, being the principal sum deposited together with interest accrued thereon in the controlled moneys account to that date, plus any interest accrued thereon thereafter up to the date of distribution of those funds pursuant to orders to be made in consequence of these Reasons;
b)The Husband’s savings as reflected in his Financial Statement relied upon by him at trial being a total of $13,745;[190]
c)The Husband’s R Ltd shareholding at the value reflected in his Financial Statement relied upon by him at trial (the number of shares held by the Husband not being disclosed therein) being $4,400;[191]
d)The value of the household contents, furniture, and personal items in the Husband’s possession as reflected in his Financial Statement relied upon at trial being $2,000;[192] and
e)The 2007 motor vehicle owned by the Wife as reflected in her Financial Statement affirmed by her on 31 March 2017 at a value of $5,000.[193]
[190] Husband’s Financial Statement sworn or affirmed 27 March 2019, item 37.
[191] Husband’s Financial Statement sworn or affirmed 27 March 2019, item 38.
[192] Husband’s Financial Statement sworn or affirmed 27 March 2019, item 42.
[193] Wife’s Financial Statement affirmed 31 March 2019, item 40.
I have not included in the matrimonial asset pool any savings for the Wife as reflected in her Financial Statement referred to, including the $6000 balance remaining in the Bank U “[X]’s Education Fund” account, as I consider that there is sufficient possibility that any such moneys would form part of the moneys I have referred to above as notional property retained by the Wife before and after separation to be considered by me under section 75(2).
Accordingly, the relevant assets of the parties in their matrimonial asset pool have a gross value of $1,011,937.67.
I find that the Husband has superannuation entitlements in an accumulation fund with V Superannuation with a value of $104,238.[194]
[194] Husband’s Financial Statement sworn or affirmed 27 March 2019, item 45.
I find that the Wife has superannuation entitlements in an accumulation fund with W Superannuation in the sum of $78,000, being a total superannuation pool of $182,238.[195]
[195] Wife’s Financial Statement affirmed 31 March 2019, item 45.
In relation to the parties’ liabilities, the Husband asserts credit card debts in relation to a Westpac credit card, a Y credit card and a Z credit card in a total of $8,079.[196]
[196] Husband’s Financial Statement sworn or affirmed 27 March 2019, item 51.
In the Wife’s Financial Statement affirmed by her on 31 March 2017, she asserts debts for which she is liable being $10,000 on a CBA Mastercard,[197] $80,000 owed to her sister, Ms A Yong, $250,000 owed to her brother, Mr Yong, and a VET fee (government study loan) in the sum of $18,000, being a total of $358,000.[198]
[197] Wife’s Financial Statement affirmed 31 March 2019, item 51.
[198] Wife’s Financial Statement affirmed 31 March 2019, item 53.
I accept the Husband’s evidence as to the liabilities owed by him in relation to his three credit cards, and I will take those amounts into consideration in calculating the net matrimonial asset pool for division between the parties.
I accept the Wife’s assertion that she is liable for a credit card debt in the sum of an estimated $10,000, which I will fix at the sum of $10,000.
I have no evidence in relation to the debts asserted by the Wife in her said Financial Statement to be owed to her sister in the sum of $80,000 and to her brother in the sum of $250,000. I find on the basis of the evidence before me that it is a proper exercise of discretion that I not take into account either of those asserted family debts.
I have no evidence in relation to the VET fee (government study loan) in the sum of $18,000 asserted by the Wife in her said Financial Statement to be owed. The nature of that alleged loan and consequent liability, to whom it owed, on what terms, and in relation to what activity or purpose is not in the evidence. I find that it is a proper exercise of discretion that I not take that liability into account.
Accordingly, the liabilities that I take into account are the Husband’s credit card debt of $8,079 and the Wife’s credit card debt of $10,000 being a total of $18,079.
The net matrimonial asset pool not including superannuation entitlements is therefore $993,856.60.
The matrix thereof is reproduced below:
| ASSETS | |
| Remaining net proceeds of sale of the Suburb E property | $986,792.67 |
| Husband’s savings | $13,745.00 |
| Husband’s R LTD shareholding | $4,400.00 |
| Husband’s household contents, furniture, and personal items in the Husband’s possession | $2,000.00 |
| Wife’s 2007 motor vehicle | $5,000.00 |
| SUBTOTAL | $1,011,937.67 |
| SUPERANNUATION | |
| Husband’s V Superannuation | $104,238.00 |
| Wife’s W Superannuation | $78,000.00 |
| SUBTOTAL | $182,238.00 |
| LIABILITIES | |
| Husband’s Westpac credit card, Y credit card, and Z credit card | $8,079.00 |
| Wife’s CBA Mastercard | $10,000.00 |
| SUBTOTAL | $18,079.00 |
| Net matrimonial asset pool inclusive of superannuation | $1,176,096.67 |
| Net matrimonial asset pool exclusive of superannuation | $993,858.67 |
Contributions
I find on the evidence that the financial contributions made directly or indirectly by the Husband during the relevant period of relationship from the commencement of the parties’ cohabitation to the date of trial are as follows.
Husband’s contributions – financial
The Husband had $30,000 in savings at the time of the parties commencing cohabitation.[199]
[199] Husband’s affidavit affirmed 27 March 2019, [28].
The Husband earned moneys from his paid employment from the commencement of the parties’ cohabitation through to August 2004 (when they came to Australia), and then from October 2004 through to the time of trial.
This would constitute a financial contribution on the part of the Husband, so far as moneys from those earnings were applied by the Husband toward the acquisition, conservation, or improvement of any of the property of the parties or either of them during that period, and towards the living expenses of the family unit.
In that regard, I note particularly that the Husband made all payments of principal and interest due on the loan account relating to the purchase of the Suburb E property, as well as the application of moneys to the purchase of the R Ltd shares in the Husband’s name.
I further note that, on the evidence, the Husband applied those moneys to the parties’ savings following their coming to Australia in 2004, with those savings being applied by the Wife toward the purchase by her of the N Street property in the sum of $78,000.[200] In this regard, I particularly note the evidence of the Husband – that the parties at no time had a joint account, and that most of his income at about that time leading up to the purchase of the N Street property was applied to the living expenses of the parties, and that, therefore, the bulk of the savings were accumulated from the Wife’s earnings.[201]
[200] Husband’s affidavit affirmed 27 March 2019, [35].
[201] Husband’s affidavit affirmed 27 March 2019, [35].
I further find that the accumulation of the Wife’s earnings was rendered possible by the Husband’s Application of his earnings toward the parties’ living expenses.[202]
[202] Husband’s affidavit affirmed 27 March 2019, [35].
Husband’s contributions – non-financial
The Husband’s non-financial contributions are represented by the work undertaken by him personally relating to tenancy management, maintenance, and improvement of both the N Street and the P Street properties.[203]
[203] Husband’s affidavit affirmed 27 March 2019, [36], [38].
Husband’s contributions – welfare of the family
On the available evidence, I find that the Husband’s contributions as home-maker to have been greater than the home-maker contribution of the Wife over the period of the parties’ cohabitation up to the date of their separation in March 2015.
On the available evidence, I find that the Husband’s contribution to the welfare of the family unit following the birth of the child on 6 March 2011 until the separation of the parties in March 2015, by his tending to the day-to-day parenting and care needs of the child, was greater than the contribution of that nature made by the Wife for the same period.
On the Husband’s evidence, the Wife took over the day-to-day parenting of and care of the child and made that contribution solely as between herself and the Husband from the time of separation (March 2015) until the time of trial.[204]
[204] Husband’s affidavit affirmed 27 March 2019, [90]-[93].
On the evidence, I find the Wife’s contributions to be as follows.
Wife’s contributions – financial
The Wife made financial contributions from her earnings to the acquisition, conservation, and improvement of the property of the parties, or either of them, and towards the living expenses of the family unit by the application of her earnings from employment during the period from the commencement of cohabitation until August 2004 (when the parties came to Australia), and then from July 2005 until October 2013 (when the Wife ceased employment). There is no evidence of the Wife engaging in paid employment after October 2013. In particular, the savings made by the Wife from her earnings during the stated periods were applied to purchase of each of the N Street and the P Street properties.
In relation to the sum of $200,000 applied by the Wife from her bank account or accounts towards the purchase of the Suburb E property, I am unable to find that the sum was accumulated by the Wife as savings from her earnings, or indeed where those moneys came from. For the purposes of deciding the property settlement as between the parties, I have found that the moneys are taken to have come from the sum of $585,185.31 withdrawn by the Wife from her ANZ bank account on 13 August 2013, the source of those withdrawn funds being unknown.
Accordingly, I do not treat that sum of $200,000 applied from the Wife’s bank account funds to purchase the Suburb E property as in any way a sole contribution made by the Wife; rather, on the basis of the evidence (or, rather, the lack thereof), I treat that sum of $200,000 as being a joint and equal contribution by the parties.
At the time that sum was applied to a purchase of the Suburb E property, the parties had been in a cohabitative and marital relationship for 11 and a half years. I have no evidence to the effect that the Wife received moneys from any source not relating to her cohabitation with the Husband other than her earnings from her employment, though patently the Wife was receiving into her ANZ bank account significant sums of money from sources not disclosed or explained in any way in the evidence.
I have no evidence upon which I can make any finding of a contribution, other than a financial contribution, made directly or indirectly by or on behalf of the Wife to the acquisition, conservation, or improvement of any of the property of the parties to the marriage or either of them.
The financial contributions of the Wife during the period of the parties’ cohabitation up to October 2013 was greater than the financial contribution of the Husband, on the Husband’s own evidence. On his evidence, the Husband says that for the period of October 2004 to about July 2007, he was earning annual income of around $40,000,[205] while the Wife was earning annual income of around $90,000.[206] The Husband’s salary increased to approximately $85,000.00 as at the time of swearing his trial affidavit in March 2019.[207] The Wife’s income for the 2013 financial year, the last year for which there is evidence that the Wife was employed, was $82,426.[208]
[205] Husband’s affidavit affirmed 27 March 2019, [34].
[206] Husband’s affidavit affirmed 27 March 2019, [35].
[207] Husband’s affidavit affirmed 27 March 2019, [39].
[208] Husband’s affidavit affirmed 27 March 2019, [43].
Even taking into account the Husband’s initial contribution of $30,000 savings, on the basis of that evidence, the Wife’s financial contribution for the period from commencement of cohabitation up to October 2013 must have been greater than that of the Husband.
The Wife’s financial contribution after October 2013 is mired in the murk of mystery. As detailed in these Reasons, substantial sums of money were coming into her ANZ Bank account for which no explanation as to source is provided in the evidence, and those funds continued to come into the Wife’s ANZ Bank account through the balance of the years 2013, and 2014 and in 2015 up to the date of the Wife closing that account on 24 July 2015.
As a consequence, there is something of an evidentiary and then a legal conundrum presented by those funds which flowed into the Wife’s ANZ Bank account (other than from the sale of the P Street property) over the period 2013 to 2015 when it comes to the assessment of the Wife’s contributions. That is because if I am to take those moneys in the sum of $385,185.31 into account in my consideration of matters under section 75(2) as moneys received by and retained by the Wife to the exclusion of the Husband, I should normally wrestle with the question as to where those moneys came from as part of the evidence informing my assessment of contributions. The evidence does not allow me to do that.
As I have found, the Wife had her opportunity to continue to take part in the proceedings, and to take part in the final Hearing and present her evidence. The Wife failed to do so. It leaves questions essential to assessing what part those moneys, if any, play in the contributions of the parties, and therefore in the ultimate holistic assessment of the contributions of the parties, unanswered.
I can only resolve the legal conundrum presented by:
a)Being unable to make any finding or assessment of contribution in relation to the sum of $385,185.31; and yet
b)Taking that sum into account as moneys retained by the Wife, to the exclusion of the Husband, from matrimonial assets
in my consideration of the matters in section 75(2).
Wife’s contributions – welfare of the family
The Wife made contributions to the family unit by way of performance of some of the role as home-maker. On the evidence, I have found that the Husband was primarily responsible for that role, and therefore I find that the Wife performed the balance of the role not done by the Husband.
The Wife made contributions to the welfare of the family unit in the day-to-day parenting of the child. Once again, on the evidence, the Wife’s contributions in this regard are to a significantly lesser degree than that of the Husband between the child’s birth and March 2015 when the parties separated, but were the sole contribution as between the Wife and the Husband to the parenting of the child from March 2015 to the time of trial, a period of over four years. Accordingly, this is a sole contribution of some significance.
Accordingly, I find on the basis of the evidence that the contributions of the parties to the matrimonial asset pool, as I have found it, are equal.
Consideration of section 75(2)
The Husband is 48 years of age and the Wife is 46 years of age. The current circumstances of Wife are not in evidence. The last Financial Statement filed by the Wife in the proceedings, affirmed by her on 31 March 2017 and filed 10 April 2017, has been referred to in the evidence of the Husband and in submissions on his behalf in relation to certain entries therein, but being well over two years old at the time of submissions (and now going on nearly three years old), it is of little assistance in relation to the Wife’s current circumstances.
There is no evidence in relation to the health of either of the parties, and accordingly I cannot find that there is anything relating to the state of health of either of the parties that should be taken into consideration in considering whether any adjustment is appropriate under section 75(2).[209]
[209] Family Law Act 1975 (Cth), s 75(2)(a).
The income, property, and financial resources of each of the parties runs into the same difficulty of lack of evidence in relation to the Wife’s current circumstances. In her Financial Statement of 31 March 2017, she asserted that she was not in employment and that her only source of income was $75 from the Centrelink Family Tax Benefit, and $5 paid by way of Child Support by the Husband for the child.
I question why in March 2017, some two years after the party’s separation, with sole care of the child [X], and having no other income earners in her household, (which is the circumstance she asserts in the document), the Wife’s only source of income would be a small amount of the Family Tax Benefit, no support pension, and no other income, the Wife having been out of employment since October 2013.
In relation to the Wife’s assertion in that document that she receives $5 per week by way of child support from the Husband, I have evidence from the Husband that he pays child support, as assessed, in the sum of $730 per month. I accept that evidence from the Husband.[210]
[210] Husband’s affidavit affirmed 27 March 2019, [121].
Those references to the Wife’s now somewhat aged Financial Statement are further illustration of the fact that there is no evidence before the Court in relation to her current circumstances, and that the only evidence to which I am able to give attention, that Financial Statement, leads to more questions than it provides answers, and is therefore of minimal, if any, assistance.
On the evidence, the Wife was in gainful employment in the IT industry from August 2004 until October 2013, and in the course of that employment earned a greater annual income than the Husband, being an income on the evidence of between 80,000 and $90,000 per year. There is no evidence relating to health or any other matter that indicates that the Wife is no longer able to engage in paid employment of that nature or, indeed, other paid employment.[211]
[211] Family Law Act 1975 (Cth), s 75(2)(b).
The evidence of the Husband in his Financial Statement relied on at trial is that from his employment as an IT system administrator he earns about $92,000 per annum. Accordingly, I can only find that the Husband’s income is on a par with the Wife’s earning capacity, and thus I find that there is no basis for any adjustment between the parties for matters relating to income, property and financial resources or the physical and mental capacity of each for appropriate gainful employment.[212]
[212] Family Law Act 1975 (Cth), s 75(2)(b).
The Wife has, it is presumed, though almost certain, the day to day care and control of the child of the marriage, [X] who is 8 years and 10 months of age. The Husband has not spent any time with or been able to communicate with, the child since the Wife and child vacated the Suburb E property on 21 February 2017. As I have already said, the financial circumstances of the Wife are not known, but, nevertheless, I do find that as between the Wife and the Husband the Wife is currently solely responsible for the day to day care control and financial support of the child of the relationship.[213]
[213] Family Law Act 1975 (Cth), s 75(2)(c).
The course of these proceedings, and the final orders that I made on 16 July 2019 indicate that given an opportunity by the Wife to participate in the care of [X], the Husband would take that opportunity and share that responsibility with the Wife, though under the final orders made that day the Wife would still be principally responsible as between the parents for [X]’s care and control. As I have found, the Husband pays the sum of $730 per month by way of child support pursuant to an assessment for the child and in that way contributes to the child’s financial support. I find that it is appropriate to make an adjustment in the Wife’s favour for her exclusive care and control of the child as between the Husband and the Wife and her greater financial support of the child now and in the foreseeable future.[214]
[214] Family Law Act 1975 (Cth), s 75(2)(d).
This may have the appearances of, in effect, rewarding the Wife for her asserted action in deliberately keeping the child hidden from the Husband, but as I have said, final parenting orders were made providing for time between the Husband and the child. The Act contains provisions pursuant to which steps can be taken by the Husband to ascertain the whereabouts of the Wife and the child, particularly given that he pays child support for the child, and steps can be taken by him in enforcement of those parenting orders. The adjustment in favour of the Wife is not a reward to the Wife for keeping the child from the Husband, but is an adjustment in recognition of the reality of the Wife’s full time day to day care and control of the child.
In assessing and comparing the commitments of each of the parties that are necessary to enable the party to support himself or herself, and the child of the marriage on the Wife’s part, and his now Wife and their child on the part of the Husband, I run into the same difficulty as outlined above – that there is no evidence before me upon which I can make any such assessment in relation to the Wife. Commitments of the Husband necessary to enable him to support himself, his Wife, and their child are set out in his Financial Statement relied upon at trial. Given that I have no evidence in relation to the Wife, I find that there is no proper basis under that consideration to make an adjustment between the parties.[215]
[215] Family Law Act 1975 (Cth), s 75(2)(d).
The Wife is responsible for the support of the child and that has been taken into consideration earlier in this section of my Reasons. The Husband is responsible for the financial support of his Wife, Ms G, and their child [L] who is one year old. In evidence in the Hearing was an affidavit by Ms G in which she deposed that she is not in paid employment, but is engaged in full time home making and parenting duties for her family unit. On the evidence, the Husband is solely responsible for the financial support of himself, his Wife, and their child. However, given that the Wife is solely responsible for the support of herself and the child of this marriage, I find that there is no basis for an adjustment between the parties on this consideration.[216]
[216] Family Law Act 1975 (Cth), s 75(2)(e).
In his Financial Statement relied on at trial, the Husband deposed that he is in receipt of Family Tax Benefit and rent assistance in a sum of $157 per week. I have already made comments about the evidence given by the Wife in her Financial Statement sworn 31 March 2017 in relation to her evidence that she receives the Family Tax Benefits in the sum of $75 per week and, other than child support, no other income. If it is the case that the Wife is not in paid employment, has the child of the marriage in her sole care, and receives the sum of $730 per month from the Husband by way of child support as assessed, then it is a matter of law under the applicable legislation that she would be entitled to a considerably greater sum than revealed in her said Financial Statement by way of pension and Family Tax Benefits, both type A and B, than she asserted she was receiving on 31 March 2017. I find that there is no basis for an adjustment between the parties for this consideration.[217]
[217] Family Law Act 1975 (Cth), s 75(2)(f).
I have no evidence upon which I can base any finding in relation to a standard of living for each of the parties that in all the circumstances is reasonable. Accordingly, there is no basis on this consideration for an adjustment between the parties.[218]
[218] Family Law Act 1975 (Cth), s 75(2)(g).
The extent to which each of the parties contributed to the income, earning capacity, property, and financial resources of the other party I find to be equal over the relevant period of the relationship and accordingly there is no basis under this consideration for an adjustment between the parties.[219]
[219] Family Law Act 1975 (Cth), s 75(2)(j).
I have no evidence on which I can make any assessment or finding of any extent as to whether the duration of the marriage may have affected the earning capacity of either party. Accordingly, I cannot make any adjustment between the parties for their consideration.[220]
[220] Family Law Act 1975 (Cth), s 75(2)(k).
The Wife has the exclusive day to day care and control of the child of the parties as between the Husband and the Wife. In those circumstances, there is always a need to protect a party who wishes to continue that party’s role as parent (in this case the Wife) and I find that there is a basis under that consideration for an adjustment between the parties in favour of the Wife.[221]
[221] Family Law Act 1975 (Cth), s 75(2)(l).
The Husband is co-habiting with his now-Wife and I have already made comment in relation to the financial circumstances of their co-habitation. On the evidence, the Husband’s now-Wife is not in receipt of earned income. I do not have any evidence in relation to the circumstances of the Wife so far as they relate to cohabiting or not cohabiting with any other person. I find that there is no basis on this consideration to make an adjustment between the parties.[222]
[222] Family Law Act 1975 (Cth), s 75(2)(m).
As foreshadowed earlier in these Reasons, I find that it is appropriate to deal with sums of money received, retained and, perhaps, though the evidence does not provide the answer, dispersed by the Wife to the exclusion of the Husband in the two years prior to separation and in the year after separation to a total of $761,536.84.[223] To that figure, the calculation base of which is set out earlier in these Reasons, I add $50,000 received by the Wife pursuant to the interim order for interim property distribution made 12 July 2018, therefore giving a total of $811,536.84. I also take into account the $50,000 received by the Husband pursuant to an interim order for interim property distribution made 21 June 2017.
[223] Family Law Act 1975 (Cth), s 75(2)(n)(i), (o).
I find, pursuant to my analysis of the evidence before the Court relating to the deposits to and withdrawals from the Wife’s ANZ bank account and the net proceeds of sale received by her in relation to the Suburb O properties, that the justice of this case requires that those moneys be taken into account, and the $50,000 interim property distribution received by her be taken into account as moneys, all or some of which may have been available to form part of the matrimonial asset pool had they not been received by and then concealed from the Husband by the Wife.
The Wife’s retention of those funds to the exclusion of the Husband has meant that the Wife has had or does have the benefit of those funds as a financial resource of some kind, or as an actual asset if she still retains those funds or some part of them. Even taking into account the $50,000 received by the Husband under the interim orders, I find that the justice of the case requires that there be an adjustment between the parties in favour of the Husband consequent upon the removal and retention of a sum that I find to be $761,536.84 by the Wife and her further receipt of the $50,000 interim distribution.[224]
[224] Family Law Act 1975 (Cth), s 75(2)(o).
I consider that in the circumstances of this case, it is appropriate to deal with the matrimonial assets and the superannuation entitlements of the parties on a two pool basis.
Division of the available assets
I find that on the basis of the above considerations, and in particular the Wife’s ongoing exclusive care and control of the child of the marriage as between the parties, and the need to protect the role of the Wife as a parent, it is appropriate to make an adjustment in favour of the Wife of 7.5% under section 75(2).
I find on the basis of my consideration of the relevant matters above, and in particular the circumstance of the moneys had by the Wife to the exclusion of the Husband, and the bearing of that circumstance on the justice of this case, and the wife’s failure to provide full and frank financial disclosure to the husband, that it is appropriate to make an adjustment in favour of the Husband of 35%.
Accordingly, from an equal division on the basis of contributions of 50% to each of the parties, an adjustment in favour of the Wife of 7.5% would give her 57.5% of the matrimonial asset pool and the Husband 42.5%. Then an adjustment in favour of the Husband of 35% would give him 77.5% of the net matrimonial asset pool and the Wife 22.5%.
Division of the Superannuation
In relation to the parties’ superannuation entitlements, I note that the Husband is 48 years of age and the Wife is 46 years of age. There are a considerable number of years yet to pass before either party is entitled to call for and receive their superannuation entitlements. I consider that it is just and equitable to apply a different percentage division to the parties’ superannuation entitlements than I have applied to the net matrimonial asset pool without superannuation.
My determination of the appropriate division of the superannuation entitlements pool is based upon my consideration of the contributions of the parties and the factors under section 75(2) of the Act. I find that the appropriate percentage division of the matrimonial asset pool is as to 57.2% to the Husband and 42.8% to the Wife. Those percentages very closely reflect the percentage composition of the total superannuation entitlement pool of the separate superannuation entitlements of the parties and accordingly I find that it is just and equitable to order that there be no adjustment by way of splitting order of the superannuation entitlements and that each party retain in the settlement their own current superannuation entitlements.
What orders are just and equitable?
In making orders that are just and equitable between the parties on a two pool approach, I find that the available matrimonial assets, excluding superannuation, are valued at $1,011,937.67 and that the liabilities that I have found should be taken into account total $18,079, giving a net matrimonial asset pool of $993,856.67. If that net matrimonial asset pool is divided as to 77.5% to the Husband and 22.5% to the Wife the Husband should receive a total of $770,238.40 and the Wife should receive a total of $223,617.60.
The Husband has in his power, possession, and control his savings, his R LTD shares and his home contents to a total value of $20,145 and is responsible for payment of his credit cards to a total of $8,079 giving him a net figure before distribution from the moneys held in trust by the solicitors from the sale of Suburb E of $12,066. To achieve the division of the net matrimonial asset pool including super that I have found to be just and equitable between the parties, the Husband will need to receive $758,172.40 from the moneys held in trust.
The Wife has her motor vehicle valued at $5,000 and is responsible for her credit card liability in the sum of $10,000 giving her a current asset/liability position before distribution from the moneys held in trust of -$5,000. Accordingly, the Wife will need to receive $228,617.60 from the moneys held in trust.
In relation to the moneys held in trust, I note that the evidence before the Court on Hearing as to the current value of the trust fund was that as at 16 July 2019 the principal and accrued interest on the trust fund was $986,792.67. There will have been further interest accrued on the moneys held in trust since that date, and that interest will continue to accrue until the moneys are withdrawn from the controlled moneys account back into the trust account of the Husband’s solicitors to then be available for distribution between the parties. I consider in the circumstances of this case that it is just and equitable that the Husband receive as part of his share of the property settlement all of that further interest accrued on the moneys held in trust until the controlled moneys account is closed.
I find that it is just and equitable to order that there be no adjustment by way of splitting order of the superannuation entitlements and that each party retain in the settlement their own current superannuation entitlements.
In considering the orders that I have determined to be appropriate after my consideration of all of the relevant matters in the four step process, I have re-examined the basis of my proposed orders and what those proposed orders would be to ensure that the orders are in all the circumstances just and equitable and I find that they are.
Accordingly, I make the orders as set out at the start of these Reasons.
I certify that the preceding two hundred and forty-nine (249) are a true copy of the Reasons for judgment of Judge Morley
Associate:
Date: 31 January 2020
Key Legal Topics
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Family Law
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Civil Procedure
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Procedural Fairness
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