TACCINI and TACCINI
[2017] FCWA 110
•6 SEPTEMBER 2017
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: TACCINI and TACCINI [2017] FCWA 110
CORAM: MONCRIEFF J
HEARD: 24, 27, 28 FEBRUARY, 1, 2 MARCH 2017 & WRITTEN SUBMISSIONS FILED 12 APRIL 2017 & 23 JUNE 2017
DELIVERED : 6 SEPTEMBER 2017
FILE NO/S: PTW 2418 of 2015
BETWEEN: MR TACCINI
Applicant
AND
MS TACCINI
Respondent
Catchwords:
PROPERTY SETTLEMENT – Where the wife unsuccessfully challenges intra-family investment arrangements – where the relevant family member has neither been joined as a party nor the relevant transactions sought to be set aside – where there are significant adverse findings of credit against the wife – where contributions overall favour the husband – where s 75(2) factors favour the wife to the extent of offsetting the greater contribution of the husband – orders to effect an equal division of property
SPOUSAL MAINTENANCE – Where the wife is unable to satisfy the threshold requirements for an order in her favour – application dismissed
Legislation:
Family Law Act 1975 (Cth)
Category: Not Reportable
Representation:
Counsel:
Applicant: Mr R Hooper SC
Respondent: Mr M Rynne
Solicitors:
Applicant: Bloxham Legal
Respondent: Leach Legal
Case(s) referred to in judgment(s):
Stanford v Stanford (2012) 247 CLR 108
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1[Mr Taccini] (“the husband”) and [Ms Taccini] (“the wife”) commenced a relationship in 2007, married [in] 2009 and separated on 14 September 2014.
2These proceedings were commenced by the husband seeking orders relating to the parties’ two children, [Child A] born [in] 2012 and [Child B] born [in] 2013, and also to resolve financial matters as between the parties.
3Fortunately the parties were largely able to resolve issues pertaining to Child A and Child B through negotiation on the first day of the trial. The Court was left to determine some relatively minor matters between the parties but for the most part the orders were made by consent and resolved the child-related aspects of the proceedings.
4I set out the orders so made in detail later in these reasons.
5The parties regrettably were unable to resolve the financial aspects of the proceedings, although the core disputes were relatively narrow and primarily related to the determination of what was the proper composition of the pool of assets to be treated as being divisible between the parties, what ultimately that division should be and whether the wife was entitled to spousal maintenance.
6The trial in the proceedings proceeded before me for five days between 24 February 2017 and 2 March 2017.
7At the conclusion of the evidence on 2 March 2017 I made the following orders: (Unless otherwise specified, all errors and emphasis in extracts are as in original).
1Within 28 days from the date hereof, the Respondent, [MS TACCINI], file and serve written submissions.
2Within 28 days of service of the Respondent’s written submissions, the Applicant, [MR TACCINI], file and serve written submissions.
3In the event that any right of reply is required or further submissions, counsel be at liberty to relist before the Honourable Justice Moncrieff for a Special Appointment.
8Written submissions on behalf of the wife were received on 12 April 2017 and on behalf of the husband on 23 June 2017.
9Since the filing of written submissions no application has been made for counsel to appear to make any further oral submissions.
10Although filed late, particularly so in the case of the husband, the written submissions filed by counsel have been of particular assistance and I express my thanks to each of counsel for the wife, Mr Michael Rynne, and senior counsel for the husband, Mr R S Hooper, for the assistance they have provided throughout the course of the trial and the consideration given to the matter in the preparation of their written submissions.
Brief history
11The brief and non-contentious history of the matter was well summarised in the chronology forming a part of the papers for the judge filed on behalf of the husband on 13 February 2017. I replicate the non-contentious portions thereof.
CHRONOLOGY
1.The husband was born on [in] 1978 and is now aged 38 years.
2.The wife was born on [in] 1980 and is now aged 36 years.
3.Prior to commencement of the relationship, the husband had an interest with his father in [Property A] and [Property B].
4.In respect of both of those properties, the deposit had been paid by the husband’s father.
5.Prior to commencement of the relationship, the wife owned [Property C] which was subject to mortgage and was re-financed in 2006.
6.During their relationship, but prior to marriage, the parties purchased a property in [Coastal Town A] [Property D] in October 2007 with finance from Westpac Bank.
7.The parties were engaged in 2008.
8.They then purchased a further property in [Coastal Town A] [Property E].
9.They then established a family trust with the parties and children as beneficiaries.
10.In September 2009 they purchased a further property in [Coastal Town A] with finance from Bankwest and using [Property C] as security.
11.The parties were married [in] 2009 and, in early 2010, took up residence in [Property A], owned by the husband and his father.
12.During the marriage, the parties conducted businesses in which they were both actively involved.
13.In 2010 the wife was involved in a motor vehicle accident and subsequently after the separation received a compensation payment which she retained for her own benefit.
14.In November 2011 the holding of interests in [Property A] as between the husband’s father, was transferred from a joint tenancy to a tenancy in common in equal shares.
15.[In] 2012 the parties’ eldest child [Child A] was born.
16.[In] 2013 the parties’ second daughter [Child B] was born.
17.During 2013 the parties undertook renovations and improvements to [Property A] at their expense and the husband’s father undertook and paid for renovations to [Property B].
18.On 14 September 2014 the parties separated and the husband took up residence with his mother in [Suburb A].
19.[Property A] had been on the market for sale prior to the separation and was subsequently sold and settlement took place in February 2015.
…
21.At the time of the settlement of sale of [Property A], the husband transferred to his father,[Mr Taccini Snr] his interest in [Property B] and the proceeds of sale of [Property A] were applied to discharge a registered debt in respect of both [Property A] and [Property B].
22.The net proceeds were placed in interest bearing account. The Accountant has calculated the equity of the husband and his father taking into account equal division of net value after deduction of loans and return of the deposits paid by [Mr Taccini Snr] and has calculated that [Mr Taccini Snr] owes approximately $93,000 to the husband.
23.Following the separation, the respondent moved into [the rental property] which was then owned by the husband’s father [Mr Taccini Snr]. [Mr Taccini Snr] informed the wife that she could live in the property rent free, for 12 months.
…
26.Around the same time [June 2015], the wife received her personal injury payment of $135,000 and then travelled with the children [overseas].
27.The parties sold [Business A] and the proceeds of sale have been retained in an interest-bearing account.
…
33.The bulk of the parties’ wealth is held in the two properties and in money standing in accounts preserved, awaiting the outcome of this litigation.
The history of proceedings and the respective positions of the parties
12The husband commenced proceedings on 11 May 2015. He sought both parenting orders and orders, in general terms, for a financial settlement between the parties that would see their property distributed equally between them.
13The wife in her response filed 22 June 2015 similarly sought parenting orders, but by way of property orders sought “a property division between the parties of the net matrimonial estate of 80% to the Respondent and 20% to the Applicant”. Additionally she sought spousal maintenance and the opportunity to further particularise her orders upon the parties fulfilling their disclosure obligations.
14The wife also sought the following interim orders at that time:
Parenting Orders
1)Until further order:
a)That the Respondent Mother ("Respondent") and Applicant Father ("Applicant") have joint long term and short term responsibility of the children of the marriage [Child A] and [Child B] (collectively "the children").
b)That the children live with the Respondent.
c)That the Applicant spend time with the children as follows
1.Each Friday 9:00am to 7:00pm;
2.Each Sunday 9:00am to 7:00pm (except mothers day); and
3.Such other time as can be agreed by the parties in writing.
2)The Applicant be responsible for the collection and return of the children from the Applicant's residence.
3)That the Applicant and the Respondent communicate via email for purpose of facilitating visitation or by SMS nforming the other party as to any medical or emergency situation concerning the children.
4)That both the Applicant and the Respondent attend a Mums and Dad Forever Program.
5)That the parties not to denigrate the other party and ensure that no third party in the children's presence denigrates either of the parties.
6)That the Respondent be permitted to leave the jurisdiction of Western Australia with the children for the purpose of travelling [overseas] between 30 June 2015 and 14 August 2015.
7)That the Respondent provide air flight itineraries , travel itineraries [for overseas] and contact telephone numbers of placing staying [overseas] for the period 30 June 2015 and 14 August 2015.
Property Orders
8)That the Applicant provide disclosure of the matrimonial asset pool within 14 days but provide specific disclosure without limiting the general obligation to disclosure the following:
1.All documents as to the sale of the business known as [Business A].
2.All documents detailing the income and expenses of the business known as [Business A] from the 28 December 2009 to the date of this order.
3.All tax returns and BAS statements of the business known as [Business A] and/or the trust or corporate entity controlling the business since its commencement on or about January 2010.
4.All documents as to the sale of the matrimonial home on or about January 2015 located at [Property A] and as to the application of the sale proceeds from the sale of the home.
5.Bank statements, financial tax returns, BAS statements, balance sheets, electronic MYOB files of [Company A] and/or the business known as the [Business A] since their inception.
9)That the net proceeds of the sale of the matrimonial located at [Property A] and the sale of the business known as [Business A] forthwith be placed in an interest bearing trust account in the names of the both parties until an agreement is reached by the parties in writing as to its division or alternatively order of the court.
10)That the Respondent have exclusive use of the [Lexus Q7], until further order of the court.
11)That the Applicant pay the Respondent spousal maintenance in the sum of $1,000.00 per week commencing from the date of the settlement of the sale of the business known as [Business A].
12)That the Applicant pay to the Respondent the sum of $200,000.00 from the sale of the matrimonial home and or the business known as [Business A] forthwith.
13)The sum of $200,000.00 to be characterized by the trial judge if not agreed by the parties prior.
15The greater proportion of the interim proceedings related to the children.
16Shortly prior to trial, orders were made on 22 December 2016 by consent that saw interim payments from the proceeds of sale of assets, previously secured pursuant to earlier interim orders restraining the parties from dealing with the proceeds of the sale of property and the parties’ business, in the following terms:
MINUTE OF INTERIM CONSENT ORDERS
1.Within two (2) business days of the signing of these Orders by both parties, and contemporaneously, the parties do all things and sign all documents necessary to:
(a)release and transfer the amount of $100,000 from the NAB account number [XXXXX XXX] to the trust account for the wife's solicitor, for meeting the wife's legal fees;
(b)release and transfer the amount of $100,000 from the NAB account number [XXXXX XXX] to the trust account for the husband's solicitor, for meeting the husband's legal fees; and
(c)release and transfer the amount of $25,000 from the NAB account number [XXXXX XXX] to the parties' joint Bankwest account ending #[XXXX], for meeting joint expenses as agreed in writing between the parties.
2.The sums released to the parties' respective solicitors' trust accounts pursuant to paragraph 1(a) and (b) above be characterised as partial property settlement.
17The husband embodied in his papers for the judge final financial orders sought more precisely defined, in the following terms, albeit that the substance of the orders on each party’s case remained largely in accord with the position that the parties had sought in their initiating process; I have set out the wife’s position in detail later in these reasons.
MINUTE OF PROPOSED ORDERS – FINANCIAL MATTERS
TRANSFERS
1.Within 30 days of the publication of these orders the wife transfer to the husband all her interest in [Property E]
2.Contemporaneously with the transfer of [Property E] pursuant to paragraph 1 herein the parties do all acts and things and sign all documents necessary to procure the release and discharge of the wife from any liability to Bankwest in relation to the Loan Account Number ending in #[XXXX] secured by mortgage against [Property E] and the Husband refinance the said loan into his sole name.
3.Pending the transfer of [Property E] pursuant to Paragraph 1:
a)The husband have the sole right to occupy and to receive all rents in relation to [Property E]; and
b)The Husband shall pay all of the loan instalments and the outgoings of [Property E] as they fall due.
4.Within 30 days the wife do procure the release and discharge of the husband from all liability in relation to the Bankwest loan [XXXX] in relation to [Property C].
5.Pending the discharge of of the husband’s liability in relation to the Bankwest Loan account ending in [XXXX] pursuant to paragraph 4 above:
a)The wife have the sole right to occupy and receive all rents in relation to [Property C]; and
b)The wife pay all of the loan instalments and the outgoings of [Property C] as and when they fall due.
CASH PAYMENTS
6.That within 30 days of the orders the parties do all things necessary to cause the wife to be paid such sum from monies held in term deposits as will provide for the wife to receive 50% of the overall net value of the property of the parties taking into account the net value of the property and superannuation to be retained by the wife pursuant to these orders.
COMPANY A and FAMILY TRUST
7.Within 30 days the wife do all things and sign all documents necessary to:
a)Resign any office that she holds in [Company A];
b)Transfer to the husband any shareholding in [Company A];
c)Transfer to the husband her right to receive, or her obligation to pay, any money in the accounts of [Company A] and of the Family Trust; and
d)Sign such documents as the husband may reasonably request to document the above in particular, and the removal of the wife from any position or role in the Family trust in general.
17.The Husband indemnify the wife and keep her indemnified in relation to:
a)Any loan account debt, demand or other liability owed by [Company A] and the Family trust; and
b)Any loan account debt, demand or other liability of the wife to [Company A] or the Family trust.
18.Within 30 days of these orders the parties, do all things and sign all documents necessary to transfer to the wife the [Lexus Q7] motor vehicle, at the husband’s expense.
OTHER
19.That unless otherwise specified in these orders:
a)Each party be solely entitled to all other property (including choses in action) in the possession of that party as at the date of these orders;
b)Each party forego any claims they might have to any superannuation benefits or entitlements belonging to or earned by the other and those benefits and entitlements vest in the party in whose name those entitlements have accrued;
c)Money standing to the credit of the parties in any bank account is to become the sole property of the holder of that account; and
d)Each party be solely liable for and indemnify the other against any other liability encumbering any item of property to which that party is entitled pursuant to these orders.
20.The parties do all acts and things necessary and sign all documents necessary to give effect to these orders and have liberty to apply in relation to the implementation of these orders.
18Embodied in the papers for the judge filed 9 February 2017 on behalf of the wife she sought final property orders particularised as follows:
8PROPERTY PROCEEDINGS
8.1MINUTE OF FINAL ORDERS SOUGHT - PROPERTY
Cash payments & transfers
1.Within 14 days of orders the Husband, in his personal capacity and in his capacity as Director of [Company A], do all things and sign all documents necessary to release the funds held in the following bank accounts to the Wife:
(a)NAB term deposit account number ending #[XXXX]; and
(b)NAB term deposit account number ending #[XXXX].
2.Pending the release of funds to the Wife pursuant to paragraph 1 above, the parties be restrained by injunction and an injunction be granted restraining them from withdrawing any funds from the accounts referred to at paragraph 1 above.
3.Within 45 days of the publication of these Orders the Wife transfer to the Husband any interest she may have in the property situate at and known as [Property E] at the Husband’s expense.
4.Contemporaneously with the transfer of [Property E] pursuant to paragraph 2 herein:
(a)The parties do all acts and things and sign all documents necessary to discharge the BankWest Loan secured by Mortgage [XXXXX X] against [Property E] and the Husband refinance [Property E Loan] into his sole name; and
(b)In the event the funds transferred to the wife pursuant to paragraph 1 herein are insufficient to provide for a division of 75% of the net asset pool to the Wife, the Husband pay to the Wife such sum to provide for a division of 75% of the net asset pool to the Wife.
5.Pending the transfer of [Property E] pursuant to paragraph 2 above:
(a)The Husband have the sole right to occupy [Property E];
(b)The Husband pay all of the loan instalments and the outgoings of [Property E] as and when they fall due; and
(c)the parties be restrained and an injunction be granted restraining them from redrawing from [Property E Loan] or further encumbering [Property E] without the written consent of the other party.
Taxation liabilities
6.Within 7 days of Orders the Husband pay the Wife’s taxation liability for the financial year ended 30 June 2015, including any penalty or interest charges accrued on that liability.
7.The Husband pay and indemnify the Wife and keep her indemnified in respect to his taxation liabilities.
[Company A]
8.Within 30 days of receiving the funds pursuant to paragraph 1 herein:
(a)the Wife do all things and sign all documents necessary, as prepared for by the Husband and at his expense, to Resign her position as Secretary of [Company A];
(b)The Wife transfer and assign all of her right, title and interest in [Company A] to the Husband and any interest she may have in [Company A] vest in the Husband absolutely.
9.The Husband in his capacity as Director and shareholder of [Company A] do cause [Company A] to pay and indemnify the Wife and keep her indemnified absolutely in relation to:
(a)any debt or obligation to pay income tax arising from monies earned or deemed to have been earned by either party from [Company A];
(b)Any liability which the Wife may have now or in the future in respect of any offices held by her at any time in [Company A];
(c)Any liability arising in respect of any claim, debt or demand for which the Husband and/or [Company A] become liable;
(d)Any loan account debt, demand or other liability of the Wife to [Company A]; and
(e)Any action, claim, debt or demand made or to be made against the Wife in respect of her involvement in [Company A].
10.Within 30 days of the date of these Orders the Husband, in his capacity as Director of [Company A], do all things and sign all documents necessary to transfer to the Wife the [Lexus Q7] motor vehicle, at his expense.
11.The Husband pay any Capital Gains Tax assessed as owing by [Company A] as and when it becomes due and payable, and indemnify the Wife and keep her indemnified in relation to such taxation liability.
Spousal Maintenance
12.The Husband pay the Wife periodic spousal maintenance of $500 per week for a period of four calendar years from the date of these Orders.
13.The payments referred to in paragraph 12 above shall be paid by direct deposit into the bank account nominated by the Wife, with such payments to be made each Monday.
14.For the purpose of paragraph 13 above, the Husband set up and maintain a direct deposit which automatically transfers the spousal maintenance referred to in paragraph 12 into the Wife’s nominated account.
Other
15.The Wife’s interest, if any, in the following, vest in the Husband absolutely:
(a)Chattels and personal effects in the Husband’s possession;
(b)Funds owing to the parties by [Mr Taccini Snr];
(c)Funds standing to the Husband’s credit in any bank accounts held in his name; and
(d)any superannuation accrued or accruing to the Husband’s benefit.
16.The Husband’s interest, if any, in the following, vest in the Wife absolutely:
(a)the property situate at and known as [Property C]
(b)Chattels and personal effects in the Wife’s possession;
(c)Funds standing to the Wife’s credit in any bank accounts held in her name; and
(d)any superannuation accrued or accruing to the Wife’s benefit.
17.The Husband pay and indemnify and keep the Wife indemnified in relation to any liabilities in his name or obtained on his behalf, including all personal loans.
18.The Wife pay and indemnify and keep the Husband indemnified in relation to any liabilities in her name or obtained on her behalf, including all personal loans.
19.That unless otherwise specified in these Orders:
(a)each party be solely entitled to all other property (including choses in action) in the possession of that party as at the date of these Orders;
(b)each party forego any claims they might have to any superannuation benefits or entitlements belonging to or earned by the other and those benefits and entitlements vest in the party in whose name those entitlements have accrued;
(c)money standing to the credit of the parties in any bank account is to become the sole property of the holder of that account;
(d)insurance policies remain the sole property of the owner named therein;
(e)each party be solely liable for and indemnify the other against any other liability encumbering any item of property to which that party is entitled pursuant to these Orders.
20.The parties do all acts and things and sign all documents necessary to give effect to these orders.
21.The Husband pay the Wife’s costs of an incidental to this Application.
22.Such further Order as this Honourable Court may deem appropriate.
19In essence, the wife amended her claim to effect a 75 per cent adjustment in her favour, in lieu of that which she had originally sought, of an 80 per cent adjustment of the parties’ property interests.
20The wife’s position was again altered in the written submissions filed on her behalf, such that, and dependent upon the findings as to the pool of assets, there be an adjustment in her favour from equality by 10 per cent, but predicated thus, “If the Court does not accept the contentions about adding back the shortfall of [the husband’s father’s] payment the Court should entertain an increase…of [between] 20 and 25%”.
21As seen, the child-related proceedings were resolved on 24 February 2017 in respect of which I made orders in the following terms:
1By consent save and except as to paragraph 6(c)(iii), orders are hereby pronounced in terms of the Minute of Final Orders – Children handed up and filed in Court this day, a sealed copy of which is attached. (set out below)
MINUTE OF FINAL ORDERS – CHILDREN
1.All previous Orders regarding the children be discharged.
2.The parties have joint parental responsibility for the children of the marriage, [Child A], born [in] 2012, and [Child B], born [in] 2013 (collectively “the children”).
3.The children live with the father as follows:
(a)From the date of Orders until 1 April 2017:
(i)From 9am Sunday to 7.00pm Monday; and
(ii)From 7.30am to 7.00pm each Tuesday
each week.
(b)From 1 April 2017 until the commencement Term 3 in 2018, each week from 9am Sunday to 7.00pm Tuesday.
(c)From the commencement of Term 3 in 2018 and onwards each week from 9am on Sunday to the commencement of school on Wednesday.
4.That the Father’s time from 9am Sunday until 9am Monday be able to be suspended on two (2) separate occasions during each school term by the mother providing the Father with 14 days written notice.
5.The children otherwise live with the mother.
School holidays
6.For the purpose of school holidays, the parties spend time with the children as follows, and the parties’ time pursuant to paragraphs 3 through 5 above be suspended:
(a)For school holidays commencing in 2017 and 2018:
(i)For end of Term 1 and 3 school holidays, with the father in week one from 9am Sunday to 9am Thursday, and otherwise with the mother, until the usual arrangement recommences on the last Sunday of the holidays when the children will return to the father.
(ii)For end of Term 4 school holidays in 2017, with the father as per the standard arrangement and for one period of 7 days for each parent in January as per the schedule attached with handover to take place at 9am and the balance with the mother.
(iii)For end of Term 4 school holidays in 2018, with the father as per the standard arrangement and for two periods of 7 days for each parent as per the schedule attached with handover to take place at 9am and the balance with the mother.
(b)For school holidays commencing in 2019:
(i)For end of Term 1 and 3 school holidays, with the father in week one from 9am on the first Sunday until 9am on the second Monday and the balance with the mother
(ii)For end of Term 4 school holidays, with the father as per the standard school term arrangement in December and for
2 consecutive weeks with each party in January on dates to be notified in writing at least 21 days before the commencement of the vacation.
(c)Commencing in 2017 for the end of Term 2 school holidays and alternating in each year thereafter that each party have the children for the entirety of the school holiday period commencing with the mother and subject to the following provisions:
(i)That the parties be at liberty to travel overseas with the children during this time;
(ii)That in the event that the party is choosing to travel outside the Greater Perth Metropolitan area during this holiday period that the departure date is not before 2 July;
(iii)In the event that the party chooses to travel [overseas] (which in the case of the husband he may not elect before 2019) during their allocated year the time available for travel be extended to the end of July; and
(iv)In the event that the party chooses to remain in the Greater Perth Metropolitan area that the children spend 3 nights with the other parent as agreed between the parties no less then 14 days prior to the commencement of the holiday period.
(v)Such further or other arrangements as the parties may agree in writing.
Special Occasions
7.For the purpose of the following special occasions, the parties’ usual time pursuant to paragraphs 3 and 5 above be suspended and the parties spend time with the children as follows, unless otherwise agreed in writing:
(a)For each child’s birthday the non-caring parent will spend time with the children as follows:
(i)on a non-school day, for at least 4 hours each and, failing agreement otherwise, from 1pm to 5pm; and
(ii)on a school day, for at least 2 hours each and, failing agreement otherwise, then from 3pm to 5pm.
(b)For each of the parent’s birthdays, the children spend time with each parent on their birthday and, failing agreement otherwise, from 1pm to 7pm on a non-school day and from 3pm to 7pm on a school day.
(c)On Father’s day weekend the children spend time with the Father 7pm on Saturday until the completion of his usual time.
(d)On Mother’s day the children spend time with the Mother from Saturday at 7pm to 7pm on Mother’s Day.
(e)For Easter the children spend time with the parents as follows:
(i)Commencing in the year 2017 and each alternate year thereafter:
(A)with the mother from 7.00pm on Holy Thursday until 7.00pm on Saturday;
(B)with the father from 7.00pm on Saturday until 7.00pm on Easter Monday and the children shall be returned to the mother between 9am and 11.30 am on Sunday morning so they made attend church in 2017 only.
(ii)Commencing in the year 2018 and each alternate year thereafter:
(A)with the father from 7.00pm on Holy Thursday until 7.00pm on Saturday;
(B)with the mother from 7.00pm on Saturday until 7.00pm on Easter Monday.
(f)For Christmas each year the children spend time with the parents as follows:
(i)With the Mother from 9am on Christmas Eve until 3pm on Christmas Day; and
(ii)With the Father from 3pm Christmas Day until Boxing Day at 7.00pm.
(iii)Regardless of the above, the Mother be at liberty to take the children to [Church A] in [Suburb B] each Christmas Morning, and return the children to the Father following the service if the children are otherwise in his care pursuant to these Orders.
Handover
8.For the purpose of the preceding paragraphs, handover is to occur with the father to cause the collecting and returning the children to the mother’s home, or in the event his time commences or concludes at the commencement or conclusion of school, then directly to or from the school.
Holidays and Travel
9.Except as otherwise provided for in these Orders, if either parent intends on travelling with the children outside of the Commonwealth of Australia during their time that parent must obtain the other parent’s consent to travel with the children, with such consent not to be unreasonably withheld.
10.Prior to travelling with the children outside of the Commonwealth of Australia, the travelling parent provide a written notice to travel to the other parent which shall include:
(a)60 days’ prior notice of the expected travel dates for overseas travel including proposed commencement and return dates of travel with an itinerary to be provided as it comes to hand but no less than 14 days prior to travel;
(b)Not later than 7 days prior to departure, contact addresses and contact telephone numbers that the travelling parent and the children can be reached on for the duration of the travel.
11.Both parties be at liberty to travel with the children within the Commonwealth of Australia during their time with the children pursuant to these Orders, or during such other times as agreed between the parties, on the basis that the travelling parent provide a written notice prior to travel to the other parent which shall include expected travel dates, contact addresses and contact telephone numbers that the travelling parent and the children can be reached on for the duration of the travel.
Passport
12.The children’s passports remain with the mother, with the mother to provide the passports to the father at least 14 days prior to any agreed overseas travel for the father with the children and the father to return the passports within 7 days of his return to Australia.
13.The father be at liberty to apply for [Nationality A] passports for each of the children to remain with the father. That the mother does all things and signs all necessary paperwork for the application of said passports. The father to provide the mother with the passports if required for overseas travel 14 days prior to the travel date and the mother to return the passports within 7 days of her return to Australia.
Communication
14.The children be at liberty to call the mother by telephone and/or facetime at any time they are in the father’s care.
15.The children be at liberty to call the father by telephone and/or facetime at any time they are in the mother’s care.
16.The parents be at liberty to call the children by telephone and/or facetime each day when they are in the other parent’s care.
17.The parents communicate via, email or text message regarding the welfare and care arrangements for the children and will endeavour to respond to such communication as reasonably and as quickly as possible.
General
18.The parties confer prior to each of the children’s birthdays each year to discuss arrangements for birthday parties and/ or celebrations and consider whether it is appropriate to have one party for each child organised jointly by the parties.
19.Each parent keep the other advised as to any health issue that may arise when the children are in their respective care, in particular in the event either child is taken to any health professional and/or any treatment is prescribed.
20.The parent who at any time has the care of the children notify the other as soon as possible should there be any medical emergency involving either of the children.
21.Each parent keep the other informed of their place of residence, contact telephone number and email address and any change thereto.
22.Each parent to provide the other with no less than 14 days’ prior written notice of their intention to change their residential address.
23.Each parent is hereby authorised to obtain from the children’s school/s all notices, letters, school reports, invitations and to attend parent/teacher interviews or other activities to which parents are invited.
Schedule A
In the term 4 holidays in 2017/18 the children are with the applicant father as follows:
1.Dec 17 to Dec 19 – HO Tues pm;
2.Dec 25 to Dec 26 – HO Wed am;
3.Dec 31 to Jan 7 – HO Sun am;
4.Jan 14 to Jan 16 – HO Tues pm;
5.Jan 21 to Jan 23 – HO Tues pm; and
6.Jan 28 to Jan 30 – HO Tues pm..
In the term 4 holidays in 2018/19:
1.Dec 16 to Dec 19 – HO Wed am;
2.Dec 25 to Dec 26 – HO Thurs am;
3.Dec 30 to Jan 6 – HO Sun am;
4.Jan 13 to Jan 20 – HO Sun am;
5.Jan 27 to Jan 30 – HO Wed am; and
6.Feb 3 to Feb 6 – HO Wed am.
In the term 4 holidays in 2019/20:
1.Dec 13 to Dec 15
2.Dec 20 to Dec 22
3.Dec 25 to Dec 26
4.Dec 31 to Jan 12
5.Feb 2 – Onwards normal arrangement
2The Child Related Proceedings otherwise be and are hereby dismissed.
The composition of evidence
22The husband relied upon his trial affidavit sworn and filed 23 August 2016 together with a statement of financial circumstances sworn and filed the same day, and an affidavit in response to matters raised by the wife, sworn and filed 9 February 2017. The husband updated his statement of financial circumstances as sworn 23 February 2017 and filed in Court on 27 February 2017.
23The husband filed the following witness affidavits:
·Mr Taccini Snr (his father) sworn and filed 23 August 2016;
·[Ms Taccini Snr] (his mother) sworn and filed 23 August 2016;
·[Ms R Taccini] (his sister) sworn and filed 23 August 2016;
·[Mr P] (an accountant) sworn and filed 9 February 2017; and
·[Mr F] (an accountant) sworn and filed 10 February 2017.
24In the context of the financial proceedings, the husband, Mr Taccini Snr and Mr P were required to be available for cross-examination and were cross-examined by counsel for the wife.
25The wife relied upon her trial affidavit sworn and filed 28 October 2016 together with a statement of financial circumstances sworn and filed the same day.
26The wife also updated her statement of financial circumstances as sworn 17 February 2017 and filed the same day.
27The wife additionally relied upon the affidavits of her mother [Mrs Kolega] and her father [Mr Kolega] both sworn and filed 28 October 2016.
28In the context of the financial proceedings only the wife and Mrs Kolega were required for cross-examination and were cross-examined by senior counsel for the husband.
29I had the opportunity of observing each of the parties and their respective witnesses give evidence.
30The husband and his witnesses were impressive.
31The husband was questioned at length about the financial arrangements that had been and were in place for him personally and for the parties’ businesses. At times he deferred these questions to his accountant and/or Mr Taccini Snr, openly accepting that he did not know these details. For example, Mr Rynne questioned the husband as to why $355,365.38 of the proceeds of sale from the matrimonial home was initially transferred into an account controlled by Mr Taccini Snr. The husband admitted he did not know why this had occurred and that he had not thought to ask his father about this anomaly as “to be honest that’s the time [the wife] and I were going through a bit of a tough time and that was one less thing I was worrying about, that I probably should have been”.
32Counsel for the wife also questioned the accuracy of the husband’s record keeping skills, for example criticising the incorrect labelling of transactions described as being to “[Law Firm A]”. The husband explained that this had been a human error on his behalf and was able to explain the circumstances surrounding it.
33The wife submitted that the husband’s lack of knowledge “On one view … [meant it] could not be contended that the husband’s unreliability is attached to any malice, he generally seems in his evidence to have a lack of understanding of his financial affairs and his evidence at Trial confirmed that [he] lacks the wherewithal to make relevant inquiries. The other view of course is that…at trial he was struggling to give a cohesive account that fits with what he sees as an unbridled allegiance to [Mr Taccini Snr]”.
34I am satisfied that the husband endeavoured to answer matters put to him in a forthright way and endeavoured to provide a full account of his activities to the best of his ability.
35During the course of his cross-examination the husband was criticised by the wife’s counsel who alleged he had breached the previous orders with injunction restraining him from dealing with funds the subject of the orders.
36Whilst a considerable amount of time was spent in satisfying counsel for the wife that all bar $2,113.79 was accounted for, the assertion ultimately was not sustained as put and the husband freely accepted that he had utilised a small portion of the funds that could not be properly accounted for.
37Mr Rynne argued that the husband’s failure amounted to a “technical breach of the injunction” and that this was demonstrative of the husband’s “pettiness towards the wife – and children – [which] was highlighted by [his] failing to show adequate respect to her and this court”. It was not specifically explained how the husband’s actions amounted to being petty towards the wife and children.
38I reject counsel for the wife’s assertion that the husband’s inability to answer all questions regarding his financial circumstances was due to some sinister design concocted between the husband and Mr Taccini Snr.
39I accept that, unlike the wife, the husband did not seek to mislead the Court or present false evidence. I reject counsel for the wife’s submission that this failure to account by the husband should lead to the conclusion advanced by the wife’s counsel.
40Mr Taccini Snr also impressed me as being honest with the Court. Whilst it was clear that he had little residual respect for the wife, he was not challenged about matters material to her case and about which I refer to later in these reasons.
41Mr P’s evidence was given in support of the calculations he had made as to sums that remained due to the husband by Mr Taccini Snr which were based on material supplied to him. His evidence was without effective challenge.
42The wife was not an impressive witness. I have no doubt that she exaggerated her evidence, was prepared to mislead the Court and at times simply fabricated evidence as she went along.
43As to the wife’s attempts to mislead the Court there was one particular example where it was put by her counsel to the husband that he had allowed the wife and the children to be without hot water for a period of six weeks by failing to cause the repair of the hot water service at Mr Taccini Snr’s unit, the rental property, in which she was residing. This was a lie. Indeed, evidence transpired in the wife’s cross-examination that she had been promptly offered repairs to the hot water service upon the husband being made aware of the problem, but that the wife had elected to arrange the repairs herself. The evidence having disclosed that the wife had emailed the husband on 16 June 2016 advising him that the hot water service had been broken for two days and in response thereto arrangements were offered to have the same repaired, but as I have observed the wife wished to arrange the repair herself, which she did not do for a period of three weeks.
44The false assertion made against the husband was clearly intended to reflect very poorly upon him, albeit irrelevant to the property proceedings, however, the same had the opposite to the intended effect and reflected very poorly on the wife’s credibility.
45In her cross-examination about transactions entered into by the wife and evidenced in the statements issued by her bank, when asked about a transfer from one account to another described as “[Law Firm B]” it appeared on the face of the statement that the same was a payment to her former lawyers. However, the payment was in fact transferred to a separate account that the wife held and that she had not used for some 12 months. When questioned she suggested that the transfer had been made “in anticipation of paying them”, her former lawyers. I reject that evidence and consider the same to be a fabrication in response to the wife being caught out in a somewhat amateurish attempt to disguise the movement of funds.
46Similarly, the wife could not explain two cash withdrawals of $10,000 she had made in one week other than to suggest that she, “was used to having cash, I was married to [the husband], I’m used to having accessible cash” and further that the cash may have been stored “somewhere in her home”, such as in “an envelope under [her] mattress”. She thereafter sought to offer various scenarios as to how the money may have been spent.
47It is noteworthy that the cash withdrawals amounting to $20,000 coincided with the hot water service being broken in the rental property. It could hardly be argued that the wife was without resources to have it fixed herself.
48Upon analysis of the wife’s updated statement of financial circumstances it was evident that she had claimed the following expenses of which the husband or Mr Taccini Snr continued to pay:
·$20 for house repairs;
·$65 for electricity;
·$60 for telephone services; and
·$80 for motor vehicle maintenance.
49It is apparent that the wife endeavoured to cast her financial circumstances in the direst light possible.
50It is also of note that the value of the wife’s jewellery and personal effects decreased from $10,000 in 28 October 2016, to $5,000 according to her updated statement of financial circumstances. Although I note this amount was listed at $10,000 elsewhere in the wife’s documents. The only information provided as to the disposal of this property was the wife’s assertion that “earlier this year I hosted a garage sale selling my old clothes in which I made approximately $3,000”.
51A pattern emerged during the course of the trial whereby the wife would claim that any contract or arrangement entered into that did not favour her case had been forced upon her. This included the $45,000 loan the parties jointly undertook from Mr Taccini Snr, the sale of the parties’ Business A, the lease agreement she entered into for the rental property and the allegedly premature settlement of her motor vehicle accident claim. Essentially, the wife sought to transfer any responsibility for her claimed “dire” financial circumstances on to the husband or third parties.
52Further, and whilst pressing a claim for spousal maintenance, the wife had undertaken work for a third party organising an event. She quoted $3,820 for managing the event and was duly appointed. The wife had an Australian Business Number, however, did not seek payment for the event for a period of some five months. Her only explanation for the delay was that she had “been having a really hard time in her life” and when further pressed she suggested that she had simply been too busy. The wife failed to disclose the transaction until less than two weeks prior to the trial.
53At any point of a conflict between the evidence of the wife and any other witness I prefer the evidence of the other witness.
54Mrs Kolega was generally an impressive witness who I consider was honest with the Court, although there was some confusion and defensiveness on her behalf as to whether or not she had been repaid some funds that she had lent the parties. It was the husband’s case that she had been repaid, a fact conceded by counsel for the wife, however, I consider it more likely that the funds intended for Mrs Kolega had been paid to the wife, as suggested, and that the wife did not repay her mother, although she may have applied some of the funds towards a trip [overseas] to the benefit of Mrs Kolega. The circumstances of the repayment or other provision made by the wife were not contained in her affidavit evidence.
55In the context of the wife’s spousal maintenance application Mrs Kolega was clear that she would assist with the care of the parties’ children at any time the wife needed assistance, answering “of course, we have got four bedrooms” and further that her house was “like a hotel for them” and that the children had stayed at her house “a million times”.
The approach to be adopted
56The approach to be adopted in determining proceedings seeking a variation of property interests is that considered by the High Court of Australia in Stanford v Stanford (2012) 247 CLR 108.
57Firstly, the Court must determine that it is just and equitable to make any order other than that which would flow from the parties’ current interests in property.
58The High Court of Australia observed that this threshold may not be difficult to cross in circumstances where during the course of the relationship the parties acted on the basis of presumptions that arose from the relationship and that are of their nature inconsistent with the other party’s interest in property.
59At para [42] of the judgment of the plurality the Court observed as follows:
42In 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).
60In these proceedings each of the parties seeks to enliven the jurisdiction of the Court to vary the parties’ interests as defined by title and the presumptions as to the use and enjoyment of property that may have existed during the subsistence of the parties’ relationship but have since ceased.
61The wife in effect also seeks to vary the property interests of Mr Taccini Snr, yet, and significantly, she has not sought to join him as a party nor has she sought to set aside any transaction as between the husband and Mr Taccini Snr which she, in effect, argues have served to diminish the husband’s interest in property. I deal with the wife’s arguments in this regard later in these reasons.
62Inherent in the first or threshold step as prescribed by the High Court of Australia in Stanford v Stanford (supra) is identification of what the parties’ current interests are.
63In defining the assets I have been greatly assisted by the efforts of counsel through the preparation of a common schedule and in their respective submissions the advancement of a logical approach which leads to a simplification of the definition of the parties’ interests and a reduction in the areas of dispute.
64At the commencement of the trial and entered as exhibit one was a statement of assets and liabilities defined as follows:
1 Particulars Husband Value Wife Value 2 3 Husband Property 4 NAB a/c [xxxx] 227 227 5 NAB Credit Card - Previously Bank West Mastercard -8,675 -8,675 6 7 NAB a/c [xxxx] 63,797 63,797 8 9 Owed by [Mr Taccini Snr] - 93,241 Disputed 10 Rental Liability Owed to [Mr Taccini Snr] -10,350 Disputed 11 2015 tax liability -18,156 -18,156 12 2016 tax liability -11,732 -11,732 13 CGT on sale of [Business A] -62,192 -62,192 14 [Prado] 55,000 59,700 15 Loan from [Ms Taccini Snr] -176,501 Disputed 16 Personal chattels 2,000 2,000 17 RBR Shares 489 489 18 Monies Held in Trust for Legal Costs 81,105 100,000 19 Husband paid legal costs 130,774 disputed 20 21 Total Husband net property 139,027 125,458 22 23 Wife Property 24 [Property D] 275,000 275,000 25 Home loan -239,197 -239,197 26 Westpac a/c [xxxx] 456 456 27 28 Westpac credit card -6,580 -6,580 29 ANZ Visacard -5,486 -5,486 30 Citibank Visacard -8,295 -8,295 31 [Audi] motor vehicle 35,000 35,000 32 Household chattels 5,000 5,000 33 Jewellery and effects 10,000 10,000 34 2016 tax liability -14,950 -14,950 35 Paid legal costs 96,628 disputed 36 Solicitors Trust account 61,186 100,000 37 38 Total Wife net property 208,763 150,949 39 40 Joint Property 41 [Property E] 180,000 180,000 42 Bank loan a/c [xxxx] -216,448 -216,448 43 Bankwest A/c [xxxx] 5,795 5,795 44 Strata Fees -14,811 -14,811 45 Loan to wife brother 8,000 8,000 46 Loan from wife mother -10,000 47 ASG School Education Account for [Child A] 8,323 8,323 48 49 Total net joint property -29,141 -39,141 50 51 52 [Company A/Family Trust] 53 NAB a/c [xxxx] 18,824 31,715 54 NAB term deposit a/c [xxxx] 521,172 521,172 55 NAB term Deposit a/c [xxxx] 91,089 91,089 56 [Lexus Q7] 47,103 47,103 57 GST payable on transfer of vehicle -4,711 58 [Toyota HiAce] 0 59 Tax Liability [Company A] -2,219 -2,219 60 Esanda Loan - [Toyota HiAce] Liability 0 61 Loan for [Lexus Q7] 0 62 63 Total net Family Trust 671,259 688,860 64 65 Total Property 989,907 926,126 66 67 68 Superannuation 69 Husband Host Plus 77,756 77,756 70 Wife colonial 36,697 36,697 71 72 Total Superannuation 114,453 114,453 73 74 Total all property and superannuation 1,104,360 1,040,579 75 76 77 78 65In part, one of the difficulties in defining the true extent of the parties’ liabilities arises from arrangements the parties have made for the payment of their legal fees and how they should be treated.
66In the weeks leading to trial the parties agreed to distribute the sum of $100,000 to each of them to meet in part their respective legal costs. It is the treatment of that sum and other borrowings for legal costs, particularly where they have been intermingled with borrowings for other purposes, that causes some complication in the clear definition of the pool.
67In the submissions prepared by senior counsel for the husband it was proposed as follows:
Legal Costs and Family Loans - Lines 15, 18, 19, 35 & 36
42.Each party has paid a total of approximately $200,000 in legal costs.
43.The husband has received a partial property payment of $100,000, which was represented at trial by moneys in solicitor’s trust account and some paid legal costs. The balance of the husband’s legal costs have been met by drawing on the credit facility in the name of his mother. The husband notes that his payment of legal costs has resulted in a payment out of the parties’ property of $100,000.
44.The wife’s paid legal costs have been met by partial property payments totalling $125,000 and her use of some of the moneys she received from the compensation payment. In the wife’s case, she has some difficulty in explaining how she has applied her compensation payment moneys, but it would appear that at least $50,000, and possibly more, of those moneys were used to pay legal costs. Therefore, the wife has drawn from the parties’ property, more than $175,000 to pay her legal costs.
45.Dealing with legal costs and the partial property payments can present difficulties and potential “double dipping”. The schedule [as attached to senior counsel’s submissions] has been constructed on the basis that paid legal costs, monies in Solicitors Trust Accounts and debts incurred to pay legal costs are ignored. This also has the effect of also ignoring the husband’s use of borrowed monies to pay child support as contended for by the wife.
46.The interim distributions paid to each party from sale proceeds are then appropriately included as an asset of each party.
…
Paid Legal Costs
91.… in discussion in respect of the property schedule, the Court has a wide range of discretion in respect of treatment of paid legal costs.
92.In this case, legal costs have either been paid from property drawn by the parties or, in the case of the husband, more than half by way of external loans.
93.The amount and repayable nature of the external loan from client’s mother is not disputed.
94.Whilst a proper accounting of that portion of legal costs paid by drawing from property would be appropriate, dealing with the matter by ignoring paid legal costs and associated loans as contended by the respondent, but including the partial property settlements, does produce an equitable outcome.
68Given the intermingling of the husband’s mother’s loan for the purchase of a Prado motor vehicle as well as for the payment of legal costs, senior counsel submitted:
Prado Motor Vehicle – Line 14
38.This is a vehicle that is registered in the name of the husband’s mother and purchased with moneys drawn on her Bank loan account.
39.The vehicle is intended to be retained by the husband and to be transferred to him upon payment.
40.The evidence of the mother is unchallenged in respect of the responsibility of the husband to pay the line of credit.
41.For purposes of the attached schedule, the vehicle and related loan have been ignored, as suggested in the respondent’s submissions.
69Senior counsel proposed an amended schedule of assets and liabilities, as contemplated, with a significant reduction in the areas of dispute, thus:
| 1 | Particulars | Husband Value | Wife Value | Husband keeps | Wife keeps |
| 2 | |||||
| 3 | Husband Property | ||||
| 4 | NAB a/c [xxxx] | 227 | 227 | 227 | |
| 5 | NAB Credit Card - Previously Bank West Mastercard | -8,675 | -8,675 | -8,675 | |
| 6 | |||||
| 7 | NAB a/c [xxxx] | 38,797 | 38,797 | 38,797 | |
| 8 | |||||
| 9 | Owed by [Mr Taccini Snr] - | 93,241 | Disputed | 93,241 | |
| 10 | Rental Liability Owed to [Mr Taccini Snr] | -10,350 | Disputed | -10,350 | |
| 11 | 2015 tax liability | -18,156 | -18,156 | -18,156 | |
| 12 | 2016 tax liability | -11,732 | -11,732 | -11,732 | |
| 13 | CGT on sale of ]Business A] | -62,192 | -62,192 | -62,192 | |
| 14 | [Prado] | 55,000 | 59,700 | ignore | |
| 15 | Loan from [Ms Taccini Snr] | -176,501 | Disputed | ignore | |
| 16 | Personal chattels | 2,000 | 2,000 | 2,000 | |
| 17 | RBR Shares | 489 | 489 | 489 | |
| 18 | Monies Held in Trust for Legal Costs | 62,609 | 100,000 | ignore | |
| 19 | Husband paid legal costs | 148,301 | disputed | ignore | |
| 20 | Interim property payment | 100,000 | |||
| 21 | Total Husband net property | 113,058 | 100,458 | 123,649 | 0 |
| 22 | |||||
| 23 | Wife Property | ||||
| 24 | [Property D] | 275,000 | 275,000 | 275,000 | |
| 25 | Home loan | -239,197 | -239,197 | -239,197 | |
| 26 | Westpac a/c [xxxx] | 456 | 456 | 456 | |
| 27 | |||||
| 28 | Westpac credit card | -6,580 | -6,580 | -6,580 | |
| 29 | ANZ Visacard | -5,486 | -5,486 | -5,486 | |
| 30 | Citibank Visacard | -8,295 | -8,295 | -8,295 | |
| 31 | [Audi] motor vehicle | 35,000 | 35,000 | 35,000 | |
| 32 | Household chattels | 5,000 | 5,000 | 5,000 | |
| 33 | Jewellery and effects | 10,000 | 10,000 | 10,000 | |
| 34 | 2015 tax liability | -14,950 | -14,950 | -14,950 | |
| 35 | Paid legal costs | 96,628 | disputed | ignore | |
| 36 | Solicitors Trust account | 86,186 | 100,000 | ignore | |
| 37 | Interim Property payments | 125,000 | |||
| 38 | Total Wife net property | 233,763 | 150,949 | -14,950 | 190,898 |
| 39 | |||||
| 40 | Joint Property | ||||
| 41 | [Property E] | 180,000 | 180,000 | 180,000 | |
| 42 | Bank loan a/c [xxxx] | -216,448 | -216,448 | -216,448 | |
| 43 | Bankwest A/c [xxxx] | 5,795 | 5,795 | 5,795 | |
| 44 | Strata Fees | -14,811 | -14,811 | -14,811 | |
| 45 | Loan to wife brother | 8,000 | 8,000 | 8,000 | |
| 46 | Loan from wife mother | -10,000 | |||
| 47 | ASG School Education Account for [Child A] | 8,323 | 8,323 | 8,323 | |
| 48 | |||||
| 49 | Total net joint property | -29,141 | -39,141 | -37,141 | 8,000 |
| 50 | |||||
| 51 | |||||
| 52 | [Company A/Family Trust] | ||||
| 53 | NAB a/c [xxxx] | 18,824 | 31,715 | 18,824 | |
| 54 | NAB term deposit a/c [xxxx] | 521,172 | 521,172 | 271,172 | 250,000 |
| 55 | NAB term Deposit a/c [xxxx] | 91,089 | 91,089 | 91,089 | |
| 56 | [Lexus Q7] | 47,103 | 47,103 | 47,103 | |
| 57 | GST payable on transfer of vehicle | -4,711 | -4,711 | ||
| 58 | [Toyota HiAce] Van | 0 | |||
| 59 | Tax Liability [Company A] 2016 | -2,219 | -2,219 | -2,219 | |
| 60 | Esanda Loan – [Toyota HiAce] Liability | 0 | |||
| 61 | Loan for [Lexus Q7] | 0 | |||
| 62 | |||||
| 63 | Total net Family Trust | 671,259 | 688,860 | 374,156 | 297,103 |
| 64 | |||||
| 65 | Total Property | 988,938 | 901,126 | 445,714 | 496,001 |
| 66 | |||||
| 67 | 47% | 53% | |||
| 68 | Superannuation | ||||
| 69 | Husband Host Plus | 77,756 | 77,756 | 77,756 | |
| 70 | Wife colonial | 36,697 | 36,697 | 36,697 | |
| 71 | |||||
| 72 | Total Superannuation | 114,453 | 114,453 | 77,756 | 36,697 |
| 73 | |||||
| 74 | Total all property and superannuation | 1,103,391 | 1,015,579 | 523,469 | 532,698 |
| 75 | |||||
| 76 | 50% | 50% | |||
| 77 |
70The table proposed by senior counsel notes that subsequent to trial the taxation liabilities referred to in lines 11, 12, 13, 34 and 59 in the proposed schedule have since been paid at amounts close to the estimates therein, but noted, sensibly in my view, that any subsequent adjustment would be minor and that “re-opening for [the purpose of updating the figures] would be an unnecessary cost”.
71The schedule was also predicated on the basis of certain agreed outcomes, namely:
1.The husband would retain as sole trustee the ASG school fund referred to in line 47;
2.That the [Lexus Q7] motor vehicle referred to in line 56 is to be transferred to the wife upon which transfer GST will be payable in the sum estimated in line 57 based on the vehicle’s written down cost. I accept that this is a liability that will arise directly from the transfer of the vehicle to the wife and as such should be treated as a current liability;
3.The values of the parties’ superannuation interests are agreed;
4.It is agreed that the husband will retain Property E and accept responsibility for outgoings in relation to that property;
5.The wife will retain Property C and be responsible for the outgoings in relation to that property;
6.The husband will retain the company and family trust structure; and
7.Neither party seeks a superannuation splitting order.
72The proposed schedule also appropriately and simply accounts for the interim distributions of property.
73Although appearing as a debt in the wife’s column (line 45) at the commencement of trial it was conceded by the wife’s counsel, albeit not by her mother, that the debt has been repaid and therefore should be disregarded, to which I refer above in my assessment of Mrs Kolega’s evidence.
Assets remaining in dispute
74Whilst the schedule prepared by senior counsel for the husband identifies differences in the parties’ positions, I accept that they are largely typographical as they had been resolved during the trial, for example the “[Company A/Family Trust]” account balance at line 53, where the wife accepted the husband’s figure, although appearing otherwise in the schedule.
75I therefore address the matters identified as remaining in dispute therein.
76The principal dispute between the parties relates to the amount said now to be owed to the husband by Mr Taccini Snr as a consequence of the sale of the property held by the husband and his father at Property A.
77In December 2002, some five years prior to the commencement of the parties’ relationship, the husband and Mr Taccini Snr purchased Property A at a cost, inclusive of stamp duty, said to have been $380,900, of which the husband and his father jointly borrowed $260,000. The balance of the purchase price was provided by Mr Taccini Snr.
78It was arranged between the husband and his father that they contributed equally to the mortgage repayment on the understanding that when Property A was sold Mr Taccini Snr would be repaid his contribution and the balance after repayment of the mortgage would be divided equally between the husband and his father.
79In June 2006 the husband and Mr Taccini Snr purchased a further property at Property B for the sum of $715,000 which, with expenses, came to a total purchase cost of $750,800, of which $570,000 was jointly borrowed by way of secured loan and Mr Taccini Snr again provided the balance.
80Again, the understanding between the husband and his father was that they would contribute equally to the mortgage payments, and upon the sale of Property B Mr Taccini Snr would be repaid his initial contribution and the balance after payment of the secured loan would be divided equally.
81By agreement between the husband and his father Property A was tenanted from time to time and the husband received the rent. The husband and the wife ultimately occupied Property A and Mr Taccini Snr Property B.
82The husband deposed to the balance outstanding for Property A by way of secured loan as being $216,735 “by 2008”.
83The husband and his father continued with their arrangement until 2009 at which time they refinanced both Property A and Property B consolidating the loans secured thereby into one loan in the sum of $720,000 which was taken on an interest only basis. At the time of refinancing the balance secured by Property A was $208,998 and Property B $510,000.
84Following the parties’ marriage they resided in Property A.
85In 2013 some renovations were undertaken by the parties primarily to the bathroom and kitchen at Property A.
86Shortly prior to the renovations at Property A Mr Taccini Snr had undertaken some renovations to Property B, accepted by the husband and Mr Taccini Snr as being at a similar cost to that which the parties expended on Property A.
87The following year (on the husband’s case) he and his father wished to separate their financial arrangements as the parties were contemplating a sale of Property A in anticipation of potentially purchasing a property in [Suburb C].
88Prior to the parties’ separation Property A was placed on the market for sale and a contract was entered into for the sum of $1,100,000.
89Upon sale of Property A the combined mortgage loan was discharged and the husband’s interest in Property B was transferred to Mr Taccini Snr at a transfer value of $1,000,000.
90It was agreed between the husband and his father that the net proceeds of sale of Property A would be paid to the husband after the discharge of the consolidated loan and that any balance then due pursuant to the terms of their arrangement would be paid to the husband by Mr Taccini Snr.
91Calculations were undertaken with the assistance of accountants. The calculations reflect the understanding between the husband and his father and include an allowance for Mr Taccini Snr’s capital gains tax liability which arose upon the sale of Property A. The calculations, however, have proceeded on the basis that the husband will not have a capital gains tax liability with respect to Property B.
92It is this calculation that has produced the balance as due to the husband from his father as being the sum of $93,241.34. The detail of the calculation was as annexed to the husband’s and Mr P’s affidavits, as undertaken by Mr P.
93It was also Mr P’s evidence that the husband and Mr Taccini Snr had contemplated separating their financial arrangements previously, particularly in 2009 when the husband was looking to open a business, and again with Mr Taccini Snr in 2013, although it was not until 2013 that Mr P was requested to calculate the split by both the husband and Mr Taccini Snr.
94Mr P was cross-examined by counsel for the wife regarding aspects of the business interests operated by the parties, their investments in properties in Coastal Town A, and the movement of funds and loans to which Div 7A of the Income Tax Assessment Act 1997 (Cth) apply. He was largely unchallenged about his calculation, although, and in fairness to counsel, the position taken by the wife as to the amount due by Mr Taccini Snr to the husband arising from the sale of Property B was that there was an agreement between the husband and his father that Property A was the husband’s solely. It follows, therefore, on the wife’s case, that the husband should have been entitled to the entirety of the net proceeds of sale of Property A without allowance for that portion of the secured loan that represented the borrowings for the acquisition of Property B or the initial interest free deposit provided by Mr Taccini Snr.
95At no point in her case did the wife offer any evidence as to the particulars of the alleged agreement or any collateral particulars as to the circumstances in which it was entered into. The limit of her evidence was as at paras 159 and 160 of her trial affidavit, where she deposed:
159.Throughout our relationship it was always known as a result of conversations with [Mr Taccini] and [Mr Taccini Snr] that [Mr Taccini] and I would solely retain [Property A] and [Mr Taccini Snr] would solely retain [Property B]. There were conversations between [Mr Taccini], [Mr Taccini Snr] and myself about this. We had a further and final conversation when [Mr Taccini Snr] started renovating the kitchen and bathroom/s for [Property B], as he intended to spend a lot of money on the renovations and wanted to make sure there was no confusion between us that the property was his and [Property A] was ours. We considered and discussed whether we should arrange to transfer [Property A] into my and [Mr Taccini’s] sole names and [Property B] into [Mr Taccini Snr’s] sole name, but decided not to do this to avoid paying Stamp Duty.
160.There was never any mention to me by [Mr Taccini] or [Mr Taccini Snr] of us owing [Mr Taccini Snr] money for his initial deposits for the properties which [Mr Taccini] and [Mr Taccini Snr] now claim.
96The wife’s position regarding the alleged agreements, or the absence thereof, between the husband and Mr Taccini Snr is somewhat fluid. In her case she highlighted the statements deposed to by the husband in an affidavit sworn 15 May 2015 in which he referred to having held 50 per cent respectively of Property A and Property B. She asserted that this was the “original agreement” between the husband and Mr Taccini Snr. Her counsel, with reference to the earlier affidavit and the husband’s trial affidavit and evidence for trial submits “The text of the [trial] affidavit shows that the husband was clearly cognisant at the time of how the family law system operates”, and, apparently suggesting thereby there was some unconscionable dealing as between the husband and Mr Taccini Snr, a submission that lacked evidentiary support.
97The wife also, in essence, sought to set aside the agreement between the husband and Mr Taccini Snr regarding the purchase of Property A and Property B on the basis that there was “no formal agreement”, yet she sought to rely on an oral agreement as against title, as discussed above.
98The wife has not joined Mr Taccini Snr as a party to the proceedings, nor has she sought to set aside the transfer of the husband’s interest in Property B to his father, challenged the provenance of the transactions, nor properly challenged the calculation of the amount owed to the husband by Mr Taccini Snr; the challenge to which merely amounted to an argument for the exclusion of the capital gains tax liability for Mr Taccini Snr, whilst ignoring the unjust enrichment of the parties that would follow the same.
99The wife’s case rests on her assertion as to the agreement between the husband and his father. However, ultimately counsel’s submissions on behalf of the wife asserted only matters of credit in support of the alleged agreement and sought to broadly impugn other financial arrangements entered into with Mr Taccini Snr during the subsistence of the parties’ relationship, whilst on the other hand appearing to accept that Mr Taccini Snr had rendered significant financial assistance to the parties during the course of their marriage.
100A further argument mounted by the wife was that the parties met the cost of the improvements to Property A and that this corroborates her version of the “agreement”, however, the same ignores the improvements Mr Taccini Snr undertook to Property B and also ignores that the improvement to the property in each case was factored into the calculation.
101On balance, I am satisfied that the arrangement as between the husband and his father was as advanced by the husband and I reject the assertion of the wife that any “agreement” as to the use or benefit of Property A went beyond the right that the parties had to reside therein.
102In any event, if I am wrong in this finding, for the reasons set out below in my consideration of the parties’ contributions and in particular the considerable financial assistance given by Mr Taccini Snr, the error is of no consequence as the resultant distribution between the parties is consistent with findings that were available on contribution.
The rent debt
103For the reasons set out below in my consideration of the parties’ financial arrangements post-separation, I am not satisfied that the alleged debt for unpaid rent should be taken into account in the pool. I am satisfied that the husband accepted a liability for and agreed to provide the wife and children’s accommodation, consistent with his agreement immediately post-separation, and as such should not be held as against the wife and accordingly be excluded from the schedule of assets and liabilities.
104That is not to suggest, however, that the same should be excluded from the consideration of the husband’s ongoing contribution post-separation, to which I refer later in these reasons.
The Audi motor vehicle
105The wife’s evidence regarding the purchase of this vehicle was entirely unsatisfactory and I reject any premise of necessity, to which I refer later in these reasons.
106The same formed a portion of a parcel of transactions undertaken by the wife following the receipt of her compensation settlement, about which her evidence was generally unsatisfactory. Whilst senior counsel for the husband accepted that a portion of the settlement funds were paid towards legal fees there remains significant lacunae in the wife’s evidence as to her dealings with the balance.
107I am satisfied the same should be treated as a premature distribution of property to the wife and accordingly included in the pool of assets as an asset held by her.
Conclusion as to the pool of assets
108Referring to the schedule of assets and liabilities proposed by senior counsel for the husband and with his submissions consistent with the common approach to the treatment of legal fees, to which I have referred, the only adjustments then to be made from those columns marked “Husband keeps” and “Wife keeps” are to eliminate the rental liability of $10,350 and to record my agreement with the proposition that the Audi motor vehicle referred to at line 31 should be included in the assets that the wife retains and that the loan to Mrs Kolega (line 40) has been repaid. The net effect is to increase the pool of assets as advanced by the husband by $10,350 from that set out in senior counsel’s schedule.
The relevant law
109The principles to be applied to the determination of applications for variation of property interests are defined in s 79 of the Family Law Act 1975 (Cth) (“the Act”). Relevantly s 79(4) provides:
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
110Contribution, as referred to in s 79(4), is a very broadly based concept and includes both financial and non-financial, direct and indirect contribution and those made by a party or on behalf of a party, and contribution made to the welfare of the family including contribution as a parent and homemaker.
111The respective contributions are not ranked and neither is presumed nor mandated to have a greater weight than the other.
112The Court must first make an assessment of the parties’ respective contribution in the context described above. Thereafter, the Court must have regard to the factors prescribed in s 75(2) of the Act, as incorporated by reference in s 79(4)(e), to the extent that they are relevant to determine whether the Court should, having regard to such relevant factors, adjust its contribution based finding such as to effect a just and equitable outcome in all the circumstances that prevail for the parties in a particular case.
Contribution based assessment
113At the commencement of the relationship the husband had his interest with his father in Property A and Property B. The wife owned an apartment at Property C being that described in the assets and liabilities schedule at line 24 which she retains and will retain.
114The husband resided in Property C and, on his case, paid the wife $1,000 per month from late 2007. It is the wife’s position that he did not pay rent. Ultimately, little turns on the issue, however, as observed above, I consider the husband’s evidence to be the more reliable.
115At that time Property A was tenanted. The husband remained in Property C until the parties’ marriage and thereafter the parties resided therein until 2010 when they moved into Property A.
116Prior to their marriage, and whilst they were not yet cohabiting, the parties entered into a joint investment through the purchase of a unit in Property D Coastal Town A at a cost, inclusive of stamp duty, of $408,200. On the husband’s case, the acquisition was financed by a loan from Mr Taccini Snr for $45,000 personally and from his corporate entity [Company B] of a further $20,000. The parties borrowed $260,000 from the Westpac Banking Corporation and they otherwise provided the balance. The wife claims that she contributed $53,000 and that the loan from Mr Taccini Snr was solely for the husband’s portion of the costs. Whilst the husband acknowledged that the wife’s equity in Property C assisted the parties with their borrowings, such a claim is inconsistent with her other evidence as to her financial situation early in the parties relationship. I prefer the husband’s evidence and that of Mr Taccini Snr.
117The husband deposed that:
44.During this period we maintained a joint account in respect of the Property D Coastal Town A unit but otherwise had our separate accounts. We had separate employment and independent households.
118In 2009 the Mr Taccini Family Trust (“the trust”) was created with a corporate trustee Company A. It is common ground that the husband effectively controls the trust.
119The husband had been consistently employed in [his area of expertise] and in [businesses] operated by his father. He has returned to such employment since the sale of the parties’ joint business, Business A.
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party’s role as a parent; and
(m)if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
(a) The age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
171The husband is 38 years of age, the wife 36.
172Counsel for the wife submits that the most significant health issue for the wife and overall is that the wife continues to suffer pain and inconvenience from the injuries she sustained in 2010.
173In her trial affidavit she deposed to being involved in a motor vehicle accident in 2010. Further:
204.I went to the doctors who told me I had whiplash, prescribed me medication and ordered bed rest for a few days.
174At para 265 of her affidavit she deposed:
265.Any employment I do obtain would need to be with a flexible employer who understands that I may need time off work as a result of my migraines, neck problems and any urgent care the children may require.
175As to the wife’s injuries, the husband deposes that she “had some discomfort and movement restriction after the accident. Most of her symptoms resolved fairly quickly although she did from time to time complain of discomfort”.
176The wife confirmed during her evidence that she had assisted in the renovations of Property A, despite her injuries. In her trial affidavit the wife deposed that she had carried out the following tasks:
a.I cleaned and scrubbed [Property A] inside and out to the cleanest state possible as it was extremely poorly kept by the previous tenant;
b.I painted the whole interior and part of the exterior of the house;
c.I made curtains for the rooms;
d.I did all the planning and design work for the renovations;
…
i.I gutted the bathroom with an old hammer and chisel…
…
k.I predominately removed, with minor assistance from [the husband], old tiles from the downstairs dining and games room again with an old hammer and chisel.
177The wife has not introduced or sought to introduce any medical evidence in support of any health issues that she maintains. As to the necessity of being available to attend to the needs of the children, with the parenting orders that the parties have entered into each of the parties will need to be available from time to time as circumstances require, as indeed does any parent.
178The wife’s assertions as to her health limitations are also relevant in the consideration of her earning capacity.
179In the submissions filed on behalf of the wife relevant to s 75(2)(b), her counsel submitted as to earning capacity:
89.They each have a physical and mental capacity for work. Apart from [Mr Taccini Snr’s] personal contributions to the husband, historically the husband however has a financial resource of his father’s company and Trust structures. He has received loans and distributions from such to advance his financial interests. One never knows what the future holds however past behaviours are the best indicator of the future and there is no evidence that [Mr Taccini Snr] has amended his Trust to remove the husband as a beneficiary. It could reasonably be implied that [Mr Taccini Snr] will advance the husband’s interests but be very cautious about doing so if another “third party’ enters the husband’s life.
…
92.As to earning capacity, given the financial performance of the husband and wife in pursuing [retail] activates combined with the addback profit of $300,000 in [Business A] in the final year there must be something positive to say about the husband’s ability to earn a significant income when he applies his long experience. Albeit that success was significantly contributed to by the wife.
93.The husband however now says he wants a less stressful life and to be available to his children. Notwithstanding that, he is relatively young and remains involved in the industry. As his children age, there will be more time and, if he so desires, seemingly enjoy employing his talents to profit making enterprises.
94.The wife hopefully can also become more financial as times progress however there is in a practical and real sense seemingly an opportunity for the father to launch himself on a more profitable path again and his earning capacity exceeds that of the wife.
95.Each of the parties will have care and control of the children who are now aged 4 and 3. The children will spend time with the husband from Sunday until Tuesday afternoon until October 2018 when they will spend time with him Sunday until Wednesday afternoon. Otherwise the children will reside with the wife. School holiday time is configured to allow some other calibrations of time.
180Of note there was no submission as to any limitation on the wife’s capacity for employment, and indeed the same would be significantly at odds with the extensive and unchallenged claims of the wife as to her contributions within the development of the parties’ businesses, but in particular their contributions in terms of Business A which post-dated the wife’s motor vehicle accident and the birth of both children.
181I conclude that there is no limitation on the wife’s capacity to earn. The only apparent limitation is the wife’s desire to “work” in employment of her choosing through presenting herself on social media platforms, such as Instagram, to obtain advantage.
182The wife presents herself as what might be colloquially referred to as a “fashionista” and aspires to be in social media circles what is known as an “influencer”. She operates an Instagram account in conjunction with a “[blog]”. It is her case that she is, “building a presence on Instagram and hope[s] to use this to earn some money in the future if I am able to increase my number of followers. I am very interested in [retail] and [product demonstration] and hope to have a future career in these areas once the girls are a bit older. This is why it is important that I maintain my presence on social media”.
183She gave evidence of how she obtains advantage from various commercial suppliers by promoting their [products] that they have provided to her in photographs which she then posts on her social media account through Instagram. The dimension of the rewards or benefits available to her is commensurate with the number of “followers” she has on her Instagram account, and that maintaining her presence on social media could be quite time consuming, which she explained thus:
[There are many] formulas for how you can try grow your Instagram account; some people cheapen out and buy followers, which I would never do. Another way is you…‘like’, you be very active on Instagram. And I used to personally be very active on Instagram, but during the course of all this, leading up to the trial, it’s a very draining exercise, where you need to invest a lot of time… [So I sought out the services of [a social media site]… what [a social media site] do is you provide them with a list of people who you like and who you are inspired by and who do nice [product] posts and [other] posts, and they will sit there and they will ‘like’… some of their images, just to help you be interactive on social media.
184To further fulfil this end the wife is required to take numerous “selfies” of herself and post them online with hash tags such as “[#xxxxxx”], “[#xxxxxx]” and “[#xxxxxx]”.
185The wife’s assertions as to the benefits or other advantages available to her through her Instagram endeavours are also somewhat uncertain and lack specific quantification, although I accept that they are both unpredictable and uncertain as a resource.
186In the wife’s updated statement of financial circumstances she deposed to having received the following benefits as a result of her Instagram activities:
·Holiday at [Suburb D Farm stay], [Suburb D], two nights;
·Holiday at [Coastal Town B], 2 nights;
·Meals to take to [Coastal Town B], [Business C];
·[Product trial], [Business C], commencing mid-February;
·30 per cent discount off [Business D] [product] purchased in Melbourne;
·20 per cent discount off [Business E] [product demonstrated] in Melbourne;
·Photo shoot at [Suburb K], Perth;
·20 per cent discount off [Business F] [product];
·30 per cent discount off various [Business G] [products];
·[Business H] [product];
·Children’s [products] from [Business I];
·Children’s [product] from [Business I];
·[Business J] membership;
·Weekly blow-dry and hair colour and haircuts as requested, [Business K];
·Shampoo and conditioner, [Business K];
·Monthly facials, [Business L];
·Face creams, [Business L];
·[Business M] [product];
·[Business N] [product];
·Children’s [products] from [Business O];
·Two [products] [Business P];
·[Stationary], [Business Q];
·[Health] treatment;
·Children’s movie tickets;
·[Jewellery] valued at $350, [Business R];
·60 per cent discount off [jewellery], [Business S]; and
·[Business T] [product].
187No explanation was forthcoming from the wife as to how her pursuit of her Instagram activities was incompatible with other forms of employment in which she has been previously engaged. She is clearly on her own case highly talented in the retail industry and, as I have referred to above, successfully quoted for the organisation of an event, notwithstanding her unwillingness to render an invoice.
188No evidence was led by the wife as to her attempts to obtain regular work in the retail industry for which she is clearly qualified, nor was there any apparent reason given as to why the same would be incompatible with her social media presence, other than the following, unsatisfactory explanation:
The last two and a half years have been so heavy, so dark, so much has been put on me as a single mum, and all I want to do is be the best version of me to my daughters, so by doing something that I absolutely love, which is my Instagramming, it brings out a lot of positive energy versus all this negativity that I’ve been forced to deal with. So, I believe to be the best version of me, I should be doing what I love and I can do it in my home and I can still be a mum.
189The wife also asserted that she was likely to require retraining in order in re-enter the paid workforce. She did not provide any evidence as to what further training she might require or even if this was a path she wished to pursue.
190The wife’s overall financial resources remain somewhat of a mystery, not only from the benefits that she receives through her social media presence, but also as I have remarked upon earlier, the unexplained dealings with her compensation claim.
191The wife’s evidence regarding her financial circumstances is in my finding entirely unreliable.
192That being said, however, it is true that the husband has a greater depth of financial resources, albeit largely through the largess of his family. I reject, however, the wife’s assertion that the husband was to receive Mr Taccini Snr’s business interests and that in such a situation the husband’s wage was to be, “$120,000 to manage the [business]…and get large profits” and that he may have access to funds distributed from Mr Taccini Snr’s trust. No such proposition was put to Mr Taccini Snr, nor did the evidence support a suggestion that such was the husband’s expectation.
193In her submissions the wife is critical of the husband’s choice in terms of employment and the arrangements that he has made compatible with his obligations as a parent, yet she herself expects to have her choices similarly recognised as valid.
194I reject the submission by counsel for the wife that:
101.The wife’s contributions to the husband have significantly affected her earning capacity. She has been the primary caregiver to the children, she devoted her energies to an industry that was one known to the husband. The wife wishes to continue in her role as a parent as does the husband. However, it is the wife to whom the children a bonded for practical reasons. They will continue to spend at least until October 2018 their most continuous days with the wife. Their lives will need significant adjustments, not only probably a change of residence but an impaired standard of living – hopefully with hot water –and they will be starting school. The wife’s desire to continue in her role is as outlined in detail at para 264-266,276 of her trial affidavit.
195This submission is incompatible with the wife’s evidence as to her role in the running particularly of Business A, her social media aspirations and her undoubted talents in the [retail industry]. There is no causal link that would suggest that her contribution to the parties’ joint endeavours has restricted her earning capacity, but rather to the contrary, it could well be argued that the same has enhanced her earning capacity.
(f) Subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party
196In the schedule of assets and liabilities proposed by senior counsel for the husband, which I have adopted save as to one item, the current superannuation interests of the parties are treated as property albeit separately defined, however, are treated equally with current assets. Such a treatment works to the disadvantage of the husband as he is treated as having a greater asset than the wife, when the same is significantly deferred. In making that observation I do not ignore that in the future the husband will have a greater financial resource available to him than the wife, subject to the respective contributions of each of the parties may subsequently make to their superannuation, and the prevailing legislation relevant to superannuation at the time of their retirement.
197Both parties are affected by the deferral of the realisation of their superannuation asset, however, the husband is more immediately affected than the wife.
(na) Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
198The husband has been assessed to pay child support and has made significant contributions to the support of the children and the wife post-separation. This is not a factor in my view that weighs in favour of the wife.
199I do not ignore that the husband accumulated an arrears of child support, however I accept the same arose through a reconciliation assessment undertaken by the Child Support Agency which was backdated and likely reflects the taxable capital gain realised on the sale of Business A. Sensibly and fairly, in the circumstances of the husband’s contributions post-separation, it has not been argued on behalf of the wife that his contribution to the support of the children fell short during the relevant period.
(o) Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
200In support of an adjustment under s 75(2)(o) counsel for the wife submitted as to how legal fees should be treated and ultimately concluded that legal fees “should not be added back and corresponding loans not taken into account”. This now appears to be a common position between the parties as discussed earlier in these reasons.
201However, in doing so the residual of the wife’s compensation payment, whatever that sum may be, beyond the payment of her legal fees and the Audi motor vehicle, has also effectively been excluded from consideration in the schedule proposed by senior counsel for the husband. This is a factor that favours the wife albeit to an unquantifiable extent.
202Counsel for the wife submitted that there should be an adjustment in favour of the wife to “a minimum of 10%” or “If the Court does not accept the contentions about adding back the shortfall of [Mr Taccini Snr’s] payment the Court should entertain an increase in section 75(2)(o) adjustments of between 20 and 25%.”
203I reject each of the wife’s submissions that could support such an adjustment having found as I have set out above as to contributions and as to the legitimacy of the arrangement entered into between the husband and his father.
204Further, as I have noted above, the husband has voluntarily accepted responsibility for post-separation contributions without calling upon the wife to do so.
Conclusion on s 75(2)
205I have found on a contribution-based assessment that there should be a minor adjustment in favour of the husband, largely resulting from the contribution made on his behalf through his family and, albeit to a lesser extent, the springboard that his property separately held prior to the parties’ cohabitation brought into the relationship.
206I agree with the submission made by senior counsel for the husband that there should be a minor adjustment pursuant to s 75(2), as in my finding the factors that prevail under s 75(2) modestly favour the wife, particularly through the certainty at least of the husband’s current employment.
207As to the changes in the parties’ respective lifestyles, the wife submitted that:
98.Throughout the marriage the parties enjoyed a reasonable standard of living. The wife was able to afford designer items which she no longer can afford, much of which were gifted to her by the husband. The husband seems as though he returns to the position he was in at the commencement of the relationship in the logistics of how he lived. The wife however has significant readjustments to make as compared with the husband.
208I reject the submissions of the wife’s counsel that the wife has and will experience a great reduction in the lifestyle that was available to her during the subsistence of the parties’ relationship, and observe that the current positions of the parties, absent significant findings that favour the wife’s case, do not support the conclusion advanced by her counsel. As to support of the parties’ children, both the husband and the wife are commonly affected by their obligation insofar as the care of the children is concerned, albeit to a slightly greater extent this responsibility will fall upon the wife.
209I propose to make an adjustment in favour of the wife such as to bring the parties to a position of equality and propose to order that there be orders drawn that reflect the division proposed by senior counsel for the husband with the adjustment to equality and disallowing the husband’s claim for rent arrears.
The wife’s spousal maintenance claim
210The wife’s claim will stand dismissed. She has not demonstrated that she satisfies the threshold requirement created by s 72(1) which relevantly prescribes as follows:
72 Right of spouse to maintenance
(1)A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c)for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
211I do not replicate the reasons to which I have referred above in terms of the wife’s earning capacity, the absence of evidence regarding any physical impairment or the factors relevant to the care of the children, although, and in particular in this regard, I note the evidence of her mother who maintains an open willingness to assist the wife in the support and care of the children at times that they are in her care.
212I propose to order accordingly and invite counsel to submit a minute effecting a distribution that reflects these findings and the dismissal of the wife’s claim for spousal maintenance.
I certify that the preceding [212] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable CourtAssociate
6 September 2017
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