Sinha & Kapil
[2022] FedCFamC2F 1595
Federal Circuit and Family Court of Australia
(DIVISION 2)
Sinha & Kapil [2022] FedCFamC2F 1595
File number(s): PAC 6972 of 2021 Judgment of: JUDGE MURDOCH Date of judgment: 23 November 2022 Catchwords: FAMILY LAW – PROPERTY SETTLEMENT – Application for property adjustment – Undefended hearing – Proceedings on foot for over a year – Where the husband failed to attend court on multiple occasions - orders made adjusting the interests of the parties. Legislation: Family Law Act 1975 (Cth) ss79, 75(2), 74
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr1.04, Ch 6
Cases cited: Bevan and Bevan; [2013] FamCAFC 116
Black v Kellner (1992) FLC 92-287
Fields & Smith [2015] FamCAFC57
Horrigan & Horrigan [2020] FamCAFC 25
Stanford and Stanford [2012] HCA 52
Weir v Weir [1992] FamCA 69
Division: Division 2 Family Law Number of paragraphs: 78 Date of hearing: 8 September 2022 Place: Parramatta Solicitor for the Applicant Mr Roberts of Counsel Solicitor for the Respondent Litigant in Person (did not participate) ORDERS
PAC 6972 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SINHA
Applicant
AND: MR KAPIL
Respondent
order made by:
JUDGE MURDOCH
DATE OF ORDER:
23 NOVEMBER 2022
THE COURT ORDERS THAT:
1.That within 28 days of the date of these Orders, the husband shall do all things and sign all documents necessary to transfer to the wife all his right, title and interest in:-
(a)The property situated at and known as B Street, Suburb C being the whole of the land contained within certificate of title folio identifier …; (“ the B Street, Suburb C property”); and
(b)The property situated at and known as D Street, Suburb E being the whole of the land contained within certificate of title folio identifier … (“the D Street, Suburb E property”).
2.That simultaneous with the husband’s compliance with Order 1, the parties do all such things as is required including signing all necessary documents to refinance the mortgage to the Australian and New Zealand Banking Group Limited secured over the D Street, Suburb E property into the sole name of the wife so as to remove the husband as borrower and guarantor, with the costs arising from such discharge to be shared equally between the parties.
3.In the event that the wife is unable to refinance the D Street, Suburb E mortgage into her sole name pursuant to Order 2 the parties shall do all acts and things and sign all such documents necessary to cause the D Street, Suburb E property to be sold in a manner determined by the wife and thereafter cause the proceeds of sale to be distributed upon settlement of the sale of said property in the following manner and priority:
(a)In payment of the costs associated with the sale including but not limited to the agent's commission, advertising and conveyancer's fees;
(b)In payment of any rates adjustment associated with the D Street, Suburb E Property;
(c)In payment of such amounts as required to discharge the D Street, Suburb E mortgage and then close those accounts;
(d)with the balance of the net sale proceeds to be paid to the wife.
4.That the husband retain all his right, title and interest in the property situated at and known as F Street, Suburb G in the state of New South Wales being the whole of land contained within certificate of title folio identifier ….
5.That pending the transfer of the B Street, Suburb C and D Street, Suburb E property, the husband is restrained from doing anything to destroy, damage or otherwise diminish the value of the B Street, Suburb C and D Street, Suburb E property.
6.That the wife shall retain all her rights, entitlement and interest in:
(a)all personal property in her possession or control
(b)all shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in her sole name
(c)all interests in life insurance policies and superannuation funds standing in her sole name.
7.That the Husband shall retain all his rights, entitlement and interest in:
(a)all personal property in his possession or control
(b)all shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his sole name
(c)all interests in life insurance policies and superannuation funds standing in his sole name.
8.That except as otherwise provide by these orders, each party remains solely responsible for all debts, including credit card debts, in the parties' respective names.
9.That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
10.Costs are reserved for a period of 28 days from the date of these Orders.
11.All extant applications are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Sinha & Kapil has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
These are proceedings for alteration of property interests pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”).
The parties commenced living together in 1999 and were married in 1999. The parties separated in 2016 and a divorce order was granted on 22 July 2021.
There are two children of the relationship, Ms H (“Ms H”) born in 2001 (currently 21 years of age) and X (“X”) born in 2005 (currently 17 years of age).
The parties have interests in property in both in Australia and Country J. On 22 July 2021 final orders as to property were made by the Family Justice Courts of the Country J adjusting the interests of the parties in all property situated in Country J. Such orders were without prejudice to any relief sought by the wife with respect to the interests the parties hold in property in Australia.
At no time has the husband filed any material in response to the wife’s application.
On 8 September 2022 the matter proceeded to an undefended hearing of the wife’s substantive application on a final basis in the husband’s absence and judgment was reserved.
This is the reserved judgment.
THE APPLICANT
The wife seeks orders broadly that:-
·That the husband transfer his interest in the two items of real estate at B Street, Suburb C, New South Wales (“the B Street, Suburb C property”) and D Street, Suburb E, New South Wales (“the D Street, Suburb E property”) at which time the loan secured by way of mortgage will be refinanced into the wife’s sole name.
·That pending transfer of the B Street, Suburb C and D Street, Suburb E properties the husband is restrained from doing anything to destroy, damage or otherwise diminish the value of the said properties.
·That the wife retain the net proceeds of sale of the property situated at and known as Unit K, L Street, City M, Country J (“the Country J unit”).
·That each party otherwise retain all their items of personal property and be responsible for all debts in their sole names.
·An Order pursuant to section 106B.
·Costs.
In support of such orders, the wife relies upon the following documents:
·Amended Initiating Application filed 5 July 2022
·Affidavit of the Wife filed 5 July 2022
·Financial Statement of the Wife filed 11 July 2022
·Financial Statement filed 11 July 2022
·Financial Questionnaire filed 22 December 2021
·Order made in the Family Justice Courts of the Country J dated 22 July 2021
·Outline of Case filed by the wife 13 July 2022 marked as Exhibit A.
·The wife’s tender bundle marked as Exhibit B.
HISTORY OF THE LITIGATION
The wife commenced these proceedings by way of an Initiating Application filed on 22 December 2021. An Amended Initiating Application was filed on 5 July 2022.
The wife deposes that she attempted to serve her Initiating documents upon the husband through enlisting the services of a process server with the husband evading such service.
Orders were made by a Judicial Registrar on 14 February 2022 for substituted service of the wife’s Initiating Application on the husband.
On 2 March 2022, the solicitors for the wife caused for her Initiating documents to be:
·posted to the husband at his last known residential address, being F Street, Suburb G. The wife’s solicitor deposes that the documents were returned to their office on 23 March 2022 and marked as ‘unclaimed’.
·emailed to the husband at his last known email address being …;
·sent to the husband via MMS however a message failure notification was immediately received; and
·sent to the husband via WhatsApp. The wife deposes that the husband had viewed the message as it had been marked with two blue ticks
There was no appearance by or on behalf of the husband when the matter was listed before the Court on 4 April 2022. On this day the Judicial Registrar was satisfied that service upon the husband had been effected. The wife was directed to file and serve any Amending Initiating Application by way of WhatsApp messenger and file updating material.
The matter was listed before me for directions on the 11 May 2022. There was no appearance by or on behalf of the husband. The matter was listed for undefended hearing on 14 July 2022 and directions were made extending the time for compliance by the wife to file her updating material. The wife was further directed to serve a sealed copy of the orders made this date on the husband.
On 14 July 2022 there was no appearance by or on behalf of the husband. On the wife’s application the undefended hearing was adjourned to 8 September 2022.
The wife filed an application in a proceeding on 8 August 2022 seeking interim injunctive orders as against the husband and this application was listed for hearing on 24 August 2022. The court noted that the matter was listed for undefended hearing on 8 September 2022. The wife was directed to serve the husband with her interim application and material filed in support together with a sealed copy of the orders by way of substituted service upon Mr Kapil and Ms N.
The matter was listed for interim hearing on 24 August 2022. There was no appearance by the husband. The husband had not been served with the wife’s Application in a Proceeding in accordance with the orders of 9 August 2022 and the interim application was stood over to the listing of the substantive proceedings for undefended hearing on 8 September 2022. The wife was again directed to serve the husband with her Amending Initiating Application and the material sought to be relied upon in support thereof together with the orders made on this date by no later than 4pm on 29 August 2022. The husband was put on notice that in the event there was no appearance by him on 8 September 2022 in person the matter would possibly proceed to final hearing on an undefended basis without further notice to him.
Further orders as to service of the material upon the husband were made by the court on 26 August 2022 in Chambers. Pursuant to such orders the material was to be personally served upon Mr O by no later than 4pm on 1 September 2022.
An Affidavit of Service was filed on 30 August 2022. I am satisfied service was effected in accordance with the orders made on 26 August 2022.
There was no appearance by the husband on 8 September 2022. Having regard to the history of this matter and so as to implement the overarching purpose of the Court as identified in Rule 1.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the matter proceeded to a final hearing on an undefended basis as against the husband on this date.
THE PROPERTY PROCEEDINGS IN COUNTRY J
Orders were made in the Family Justice Courts of the Country J on 22 July 2021 as follows:-
1. The Plaintiff shall have sole custody, care and control of the children namely, [Ms H] ("elder child") and [X] ("younger child") ("hereinafter collectively referred to as "the children").
2. The Defendant shall have reasonable access to the children to be arranged directly between the children and the Defendant.
3. The Defendant shall pay monthly maintenance for the children in the sum of 2,000 for the elder child and l,000 for the younger child with effect from 31 July 2021 and thereafter on the last day of each month. Payments shall be made into the Plaintiffs designated bank account [Bank P].
4. There shall be no maintenance for the Plaintiff.
5. Each party shall retain their own assets in their respective names including that the Plaintiff shall be entitled to retain the flat at [Unit K, L Street, City M, Country J] ("the flat") and within 3 months from the grant of the Final Judgement the Defendant's name shall be removed as a permitted occupier in the said flat.
For the avoidance of doubt, this is without prejudice to the Plaintiffs claim on any assets/properties in Australia, which the Defendant holds legal or beneficial interest in.
6. The 2 insurance policies namely [Life Insurance Policy 1 / Life Insurance Policy 2] /Endowment held in Defendant's name shall be transferred to the Plaintiff, who shall continue to finance the premiums.
7. No order as to costs.
8. Liberty to apply.
The property at City M in Country J was sold by the wife on in April 2022. The wife received a net sum of $321,216.58 AUD. The wife’s Outline of Case states that these funds remain in her Bank Q and are listed on the Balance Sheet and I accept that this is so.
In any event, I have proceeded on the basis that the savings held by the wife in various financial institutions incorporate these monies as the wife is required to disclose by way of her Financial Statement all income, property and financial resources held by her, not just those within Australia.
THE LAW
In determining claims for alteration of property interests pursuant to s 79 of the Family Law Act 1975 (Cth), I am required to:
(a)Make findings as to the identity and value of the property, liabilities, and financial resources of the parties, or either of them, at the time of the hearing and determine the legal and equitable interests of the parties in such property;
(b)Consider, identify and assess the contributions by the parties to the acquisition, conservation and/or improvement of their property, including financial and non-financial contributions and any contributions to the welfare of the family before, during and after the relationship came to an end;
(c)After consideration of altering the interests in the property pool on the basis of contributions, to consider whether there should be any further adjustment to the either of the parties on account of the matters set out in s 79(4)(d)-(g) of the Act, including any relevant considerations pursuant to s 75(2) of the Act; and
(d)Ensure that the orders to be made are just and equitable in all the circumstances.[1]
[1] Stanford and Stanford (2012) 247 CLR 108 at 120; [2012] HCA 52; Bevan and Bevan (2013) FLC 93-545; [2013] FamCAFC 116.
The Full Court in Horrigan & Horrigan [2020] FamCAFC 25 reinforced the holistic approach espoused in Fields & Smith (2015) FLC 93-638 and stated that the proper approach to the assessment of contributions is:
[35]…well established that an assessment of contributions is not a mathematical exercise, but rather involves the identification and assessment of all of the parties’ respective contributions, in a holistic way across the course of the relationship and in the post separation period to the point of assessment.
THE PROPERTY POOl
Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) (“the Rules”) codifies the absolute obligations of parties to disclose their relevant financial circumstances. Discharge of that obligation is critical to the function of the s 79 jurisdiction, and is fundamental to achieving justice and equity as between the parties.
I accept the wife’s assertion that the husband has not provided financial disclosure as required pursuant to the Rules. In those circumstances, I find that the guidelines provided to trial judges to not be unduly cautious in making findings of fact in favour of the innocent party as identified by a range of cases considered by the Full Court including Black v Kellner (1992) FLC 92-287 and Weir v Weir (1993) FLC 92-338 ought to be applied as against the husband.
I accept and find based on the Balance Sheet annexed to the wife’s Outline of Case Document filed on 13 July 2022 together with submissions made on the wife’s behalf by counsel at the undefended hearing that the known superannuation and non-superannuation property of the parties is as follows:-
Assets Owner Asset Value Husband F Street, Suburb G (50% interest) $575,000 Husband D Street, Suburb E $820,000 Husband B Street, Suburb C $1,100,000 Husband NAB Classic Banking #...33 (as at 24.01.22) $738 Husband NAB iSaver #...75 (as at 24.01.22) $700 Wife Bank P Everyday Savings Account $1,708 Wife Bank P Account $26,731 Wife Bank Q Savings Account $292,375 Wife Motor Vehicle 1 $40,000 Wife Company AK $77,820 Total Gross Value of Non Superannuation Property $2,935,072 Addbacks Husband Funds Transferred to the husband’s brother, Mr R, in 2017 $60,658 Husband Monies received from drawdown of mortgage $276,000 Total Value of Addbacks $336,658 Liabilities Husband NAB #...71(50% interest) $108,917 Husband NAB Low-Rate Credit Card #...55 $31,239 Husband ANZ One #...17 $1,639 Husband ANZ Residential Loan #...63 $271,380 Husband ANZ Residential Investment Loan #...71 $276,586 Wife Loan from Ms S $21,003 Wife Loan from Ms T $2,100 Wife Loan from Ms U $10,501 Wife Loan from Ms V $31,504 Wife Loan from Ms W $5,251 Wife Loan from Mr Y $237,856 Wife Loan from Ms Z $10,540 Wife Loan from Ms AB $346,546 Wife Bank AC Credit Card $3,500 Wife Bank Q Loan $20,895 Wife Loans from AD Pty Ltd $73,044 Total Value of Liabilities $1,452,501 TOTAL VALUE NET NON SUPERANNUATION PROPERTY $1,819,229 Superannuation Super Fund AE – Accumulation Fund (Husband) $2,405 Super Fund AF – Accumulation Fund (Husband) $3,218 AG Retirement Fund – Accumulation Fund (H) $17,905 TOTAL VALUE SUPERANNUATION PROPERTY $23,528 Financial Resources Wife Fund AH (Retirement) $300,340 TOTAL VALUE FINANCIAL RESOURCES $300,340
The total value of the known property pool of the parties including superannuation entitlements based on the evidence available is $1,842,757. The wife in addition has a retirement fund with a value of $300,340.
At law the value of the property including superannuation in which the husband has an interest totals $2,166,863. The wife is in debt to the value of $324,106. The wife has financial resources with a value of $300,340.
WHETHER AN ORDER ALTERING PROPERTY INTERESTS SHOULD BE MADE
In Stanford and Stanford (2012) 247 CLR 108 (“Stanford”) the High Court observed that it is necessary for me to be satisfied that justice and equity will be achieved as part of the adjustment process pursuant to s 79 of the Family Law Act 1975 (Cth).
I find that the requirements identified in Stanford are satisfied in this matter having regard to:
(a)The parties in this matter, having married and mixed their finances as a family have now separated. It is therefore not possible for them to continue to mutually enjoy the accumulated assets.
(b)The wife invokes s 79 of the Act seeking orders for property settlement and the proceedings ultimately proceeded on an undefended basis.
(c)The current legal interest of the parties needing to be changed or adjusted when consideration is given to the contribution and other factors identified below.
It is therefore just and equitable in all the circumstances to make orders pursuant to s 79 of the Act adjusting the financial interest of the parties.
CONTRIBUTIONS
Financial Contributions
I am satisfied and find that the financial contributions of the parties, grounded from the wife’s uncontested evidence is as follows.
At the time of cohabitation, the wife was in possession of a sum of gold which she estimates was worth approximately $55,000.
It appears from land title searches that the husband had an interest in the property at F Street, Suburb G in the state of New South Wales (“the F Street, Suburb G property”). This was subject to a loan secured by way of mortgage over the property.
The parties lived with the wife’s parents from 1999 to 2002. Throughout this time, the husband was employed as a professional earning approximately $5,000 per month. The wife was employed as an professional earning approximately $2,700 per month.
The husband did not contribute to the day to day living expenses of the family in circumstances where they were residing with her parents.
In 2002 the wife acquired the former matrimonial home situated at Unit K, L Street, City M, Country J (“The Unit K, L Street, City M, Country J property”) for the sum of 211,900 or approximately $230,000. The property was registered in her sole name. The wife applied approximately 69,076.89 or approximately $75,000 from savings and a loan was acquired from the Authority AJ, Country J in the sum of 153,500 or $166293 AUD. The wife deposes that at the time of this purchase, the husband was living in Country J under an employment pass and was unable to be included on the title of property.
The wife deposes to expending a further 50,000 or approximately $54,000 to renovate the Unit K, L Street, City M, Country J property. These monies were loaned to the wife by her family and friends.
In 2006 the husband was repatriated back to Australia and prohibited from continuing to live in Country J arising from allegations of document falsification on his educational certificate by the Immigration and Checkpoint Authority. The wife and two children who were aged 4 and 1 year old remained in Country J during this time. The husband did not provide financial support and the wife was reliant upon financial assistance from her family.
The property at B Street, Suburb C in the state of New South Wales (“the B Street, Suburb C property”) was purchased in 2006 for the sum of $360,000. Whilst the wife’s affidavit deposes that this was purchased in the names of the husband and his brother, the Transfer attached to the wife’s affidavit shows the transferee as the husband only and I am satisfied that the property was registered in the sole name of the husband. The property was unable to be registered in the wife’s name due to her residency status in Australia at the time. A mortgage was secured against the property with National Australia Bank (“NAB”). The wife’s father contributed the sum of 100,000 or approximately $108,000 towards the acquisition costs.
Despite the property being registered in the husband’s sole name the wife’s father paid the loan repayments for the property from 2006 until 2016. Subsequent to 2016 the mortgage was discharged and that discharge was registered on 27 October 2017.
The B Street, Suburb C property was tenanted from the time of its acquisition. The husband retained the entirety of the rental income. The wife is unaware as to the monies received by the husband by way of rental income, nor how such funds were applied.
In 2008 the husband obtained a special pass and was able to return to Country J for a period of 2 years. A condition of this pass was that the husband not engaged in paid employment. The family continued to be supported financially by the wife’s family.
In 2008 the wife commenced operating her business, Company AK. The family continued to require the financial assistance of the wife’s family.
In 2010 the family relocated to Australia as the husband was not able to obtain employment in Country J.
The property at D Street, Suburb E in the state of New South Wales (“the D Street, Suburb E property”) was purchased in May 2011 for $330,000 in the husband’s sole name. The purchase price consisted of 23,000 or approximately $25,000 drawn from the wife’s business together with a loan secured by way of mortgage from the Bank AM. Title searches record that this mortgage was discharged in 2017 and a new loan obtain secured by way of mortgage with the Australian and New Zealand Banking Group Limited.
In 2013 the family relocated back to Country J as the wife’s business was struggling and she was required to be physically present to attend to its day to day operation. At this time the wife obtained a loan in the sum of 50,000 or approximately $54,000 to undertake renovations to the business premises.
The husband was able to secure employment with Employer AL earning approximately 4,000 or $4300 per month. The husband retained his salary for his personal use.
Title searches record that the husband and the husband’s father Mr O purchased the interest of the other registered proprietors of the F Street, Suburb G property in 2013 for the sum of $185,000. The ownership of the property is now registered between the husband and his father as to ½ as joint tenants and then them each holding a further ¼ interest as tenants in common.
The wife continued making repayments toward the mortgage secured over the F Street, Suburb G property until December 2016. The husband has continued to reside in the F Street, Suburb G property and has received the benefit of rental income from the granny flat situated at the rear of the property. The husband has not accounted to the wife with respect to these rental monies received.
Between July and October 2017 the husband made transfers in the total sum of $60,658 from his personal ANZ account to his brother Mr R. This sum is listed on the balance sheet.
In April 2022, the Unit K, L Street, City M, Country J property was sold in circumstances where the wife was in urgent need of funds to alleviate her financial burden. The sum of 297,557.18 or approximately $322,000 being the net proceeds of sale retained by the wife after payments of various debts will be applied towards payment of further liabilities.
The wife continues to financially support Ms H whilst she undertakes full time study at university.
The wife has met her and the children’s expenses by obtaining the loans listed on the balance sheet.
Non-financial contributions
I accept and find that the wife has at all times been the primary carer of the two children. As between the husband and the wife she was the sole provider of care for the children from 2006 to 2008 when the wife and children were in Country J and the husband was living in Australia.
I find that the wife undertook a significant proportion of the homemaker responsibilities.
The wife asserts that the husband perpetrated family violence upon her, thereby making her contributions more onerous: In the Marriage of Kennon [1997] FamCA 27. The wife deposes as to the husband raising his hand towards her “on numerous occasions.” I am unable to make a finding on such a broad allegation. I find that on one occasion when the children were aged 13 and 9 years of age the husband hit the wife several times during an argument.
I accept and find that the wife made higher financial contributions than the husband both during the course of the relationship and post separation by way of the application of her income towards the acquisition and conservation of the property of the parties. The wife’s father made significant financial contributions. The husband has had the benefit of rental income from the parties’ property to the exclusion of the wife. The wife’s non-financial contributions as homemaker and parent were significantly higher than those of the husband. I am unable to safely find on the evidence that her contributions were made more onerous as a result of the husband’s conduct.
I am satisfied that the court should make findings as to contributions and any adjustment thereto pursuant to s 79(d) – (g) of the Act of a single superannuation and non -superannuation property pool on a global basis.
Counsel for the wife submitted that the wife is in effect seeking an overall adjustment of 57% of the known property of the parties. It was submitted that the wife would receive this adjustment on a contributions based finding alone. I accept this submission.
Having regard to the contributions findings made above, I assess the wife’s contributions to the known property pool as 57% to the wife and 43% to the husband.
The wife on the contribution finding therefore ought to receive adjusted property totalling $1,050,371 of the known property and the husband $792,386. That is a difference between the parties of $257,985 of the known property pool of the parties.
ADJUSTMENT TO THE CONTRIBUTIONS FINDINGS – SECTION 79(4)(d)–(g) CONSIDERATIONS
The wife is 51 years of age. She continues to operate Company AK in Country J. The wife’s financial statement of 11 July 2022 deposes that the wife is not presently earning a salary from this enterprise. She is currently residing in rental accommodation. I find that the wife has a modest future income earning capacity by application of her own physical efforts and labours.
There is no evidence before the Court as to the employment status or health of the husband. There is no evidence before me as to the husband’s current income. The husband historically has earnt $100,000 per annum as a Manager.
The husband has failed to provide financial disclosure of his current financial circumstances.
The children of the relationship are now of mature age. X was diagnosed with a medical condition in 2016 and has had to undergo 3 surgeries since her diagnoses, which have been solely funded by the wife.
Recently, X has been diagnosed with a medical condition and will be required to undergo treatment for the remainder of her life. The wife has had to meet significant expenses in relation to X’s medical needs and continues to do so.
Ms H has resided in Sydney since 2018. The wife deposes that Ms H resided with the husband in Sydney between 2018 to March 2020, at which time there was an altercation between Ms H and her father and she was told to leave his house. Ms H now resides with the mother’s sister-in-law and the wife funds Ms H’s day-to-day living expenses by way of regular bank transfers.
Counsel for the wife submitted that an adjustment of a further 5-10% should be made in the wife’s favour having regard to the considerations set out in section 79(4)(d) - (g) of the Act. I accept and find that a consideration of the matters contained in s 74(e)–(g) of the Act favours the wife. I am satisfied in all the circumstances, having regard to the findings that I have made above that an adjustment to the wife of 5 % is appropriate.
Thus overall the wife would receive an adjustment of 62% of the known property pool. This equates to property to the value of $1,142,509 to the wife and $700,248 to the husband, a difference of $442,261.
During submissions it was made clear that the wife sought orders as per her application which would result in the husband receiving the following:-
His interest in the F Street, Suburb G Property
$575,000
NAB Classic Banking account ending #...33
$738
NAB iSaver Account ending #...75
$700
Superannuation entitlements
$23,528
Funds transferred to Mr R in 2017
$60,658
Funds received from drawdown of mortgage
$276,000
Total assets retained
$936,624
NAB #...71 loan
$108,917
NAB Low-Rate Credit Card
$31,239
ANZ One Card ending #...17
$1,639
Total Liabilities
$141,795
Total net value of known property
$794,829
The wife will receive the following:
The D Street, Suburb E Property
$820,000
The B Street, Suburb C Property
$1,100,000
Bank P Everyday Savings Account
$1,708
Bank P Account
$26,731
Bank Q Account
$292,375
Motor Vehicle 1
$40,000
Company AK
$77,820
Total Assets
$2,358,634
ANZ Investment Loan #...71
$276,586
Loan from Ms S
$21,003
Loan from Ms T
$2,100
Loan from Ms U
$10,501
Loan from Ms V
$31,504
Loan from Ms W
$5,251
Loan from Mr Y
$237,856
Loan from Ms Z
$10,540
Loan from Ms AB
$346,546
Bank AC Credit Card
$3,500
Bank Q Loan
$20,895
loan from ANZ Bank # …63
$271,380
loans from AD Pty Ltd
$73,044
$1,310,706
Total net value of known property
$1,047,928
Thus pursuant to the relief sought by the wife she will receive assets totalling 57% of the known asset pool together with her retirement fund of $300,340 and the husband 43%. This is a differential of $253,099 of the known asset pool in the wife’s favour.
Counsel for the wife at the undefended hearing of the matter advised the court that the wife is aware that the relief sought by her provides her with an adjustment to the asset pool of 57%, or less than what she would be entitled to based upon the contribution findings and any adjustment thereto the court would make pursuant to section 79(4)(d)-(g) of the Act. In circumstances where the wife has had the benefit of legal advice and was represented by counsel at the hearing, I am satisfied the orders as sought by the wife are just and equitable in all the circumstances and I will make the orders as sought. I do not propose to make an order that the wife retain the funds from sale of the Country J property as orders have been made in this regard in Country J and the wife in any event will retain those funds pursuant to order 6 above.
Having regard to the findings made in this matter, the overall distribution of the known property to each of the parties in the terms as sought by the wife is in all of the circumstances appropriate, just and equitable, and orders will be made accordingly.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 23 November 2022
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