Tatum & Brydon
[2024] FedCFamC1F 430
•25 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tatum & Brydon [2024] FedCFamC1F 430
File number(s): PAC 4798 of 2022 Judgment of: RIETHMULLER J Date of judgment: 25 June 2024 Catchwords: FAMILY LAW – PROPERTY – Alteration of property interests – Where parties had a 19 year relationship – Where husband brought in a property – Where wife received an inheritance – Where both parties allege the other has undisclosed assets overseas – Kennonv Kennon (1997) FLC 92-757 taken into account – Where wife has full-time care of children – Where both parties wish to retain a property – No matters of principle. Legislation: Family Law Act 1975 (Cth) ss 75, 79 Cases cited: Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27 Division: Division 1 First Instance Number of paragraphs: 76 Date of hearing: 13 & 14 June 2024 Place: Parramatta Solicitor for the Applicant: Mr Bainbridge of Bainbridge Legal Counsel for the Respondent: Ms Picker Solicitor for the Respondent: Summit Law Group ORDERS
PAC 4798 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TATUM
Applicant
AND: MS BRYDON
Respondent
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
25 JUNE 2024
THE COURT ORDERS THAT:
1.That within 60 days of the making of these orders, the applicant husband do all such acts and things and sign all necessary documents so as to transfer to the respondent wife all his right title and interest in the former matrimonial home known as D Street, Suburb E (“the Suburb E Property”), also known as folio ….
2.That simultaneously with the transfer set out above, the parties do all such acts and things and sign all necessary documents so as to discharge the mortgage on the Suburb E Property and release the husband from the mortgage on this property.
3.That simultaneously with the transfer and re-mortgage in Orders 1 and 2, the wife pay to the husband the sum of $287,140.41 (“the settlement sum”).
4.That if the wife does not transfer the settlement sum to the husband within the time specified, then the parties immediately do all acts and things and sign all documents necessary to list the Suburb E Property for sale by private treaty, with a real estate agent agreed between the parties and at a price agreed between the parties, or failing agreement, within 14 days then at a price determined by the President from time to time of the New South Wales Division of the Australian Property Institute or his nominee.
5.In the event that the Suburb E Property is not sold within 3 months after the date of listing pursuant to Order 4 above, then the parties shall forthwith do all acts and things and sign all documents necessary to list the Suburb E Property for sale by public auction with an auctioneer agreed between the parties and at a reserve price agreed between the parties, or failing agreement, as determined by the President from time to time of the New South Wales Division of the Australian Property Institute of his nominee.
6.That the parties shall cause the proceeds of sale of the Suburb E Property to be disbursed as follows:
(a)In payment of the costs of sale including real estate agent’s fees, legal fees and auctioneer’s fees, if any;
(b)In payment of any rate adjustments as at the date of settlement of the sale;
(c)With respect to the balance remaining if any, in payment to the parties as follows:
(i)In payment to the wife of an amount calculated by the following formula: (56% x D) – B
Where:
A = $1,327,199.41, being the net value of the assets to be retained by the husband pursuant to these orders
B = $1,689,162.88, being the net value of assets to be retained by the wife pursuant to these orders
C = $698,052 (being the net value of the Suburb G Property, as described below)
D = The total of A + B + C
(ii)The balance to the applicant husband
7.That within 60 days of the making of these Orders, the wife do all such acts and things and sign all necessary documents so as to transfer to the husband all her right title and interest in the property situated at and known as F Street, Suburb G, also known as folio … (“the Suburb G Property”).
8.That simultaneously with the transfer set out above at Order 7, the parties do all such acts and things and sign all necessary documents so as to discharge the mortgage on the Suburb G Property and release the wife from the mortgage on this property.
9.That in the event that the husband is unable refinance the mortgage over the Suburb G Property within the timeframe provided, then the parties immediately do all acts and things and sign all documents necessary to list the Suburb G Property for sale by private treaty, with a real estate agent agreed between the parties and at a price agreed between the parties, or failing agreement, within 14 days then at a price determined by the President from time to time of the New South Wales Division of the Australian Property Institute or his nominee.
10.In the event that the Suburb G Property is not sold within 3 months after the date of listing pursuant to Order 9 above, then the parties shall forthwith do all acts and things and sign all documents necessary to list the Suburb G Property for sale by public auction with an auctioneer agreed between the parties and at a reserve price agreed between the parties, or failing agreement, as determined by the President from time to time of the New South Wales Division of the Australian Property Institute of his nominee.
11.That the parties shall cause the proceeds of sale of the Suburb G Property to be disbursed as follows:
(a)In payment of the costs of sale including real estate agent’s fees, legal fees and auctioneer’s fees, if any;
(b)In payment of any rate adjustments as at the date of settlement of the sale;
(c)With respect to the balance remaining, if any, in payment to the husband.
12.That within 28 days of the making of these Orders, the parties do all such acts and things and sign all necessary documents so as to close the Commonwealth Bank of Australia account (account number …73) and the Westpac Offset Account …93 and to pay the balance remaining to the husband.
13.That within 28 days of the making of these Orders, the parties do all such acts and things and sign all necessary documents so as to close the Westpac bank account (account number …94) and to pay the balance remaining, if any, to the parties, 56 per cent to the wife and 44 per cent to the husband.
Superannuation Splitting Order
14.That the orders below have effect from the operative time.
(a)The base amount allocated to the respondent wife Ms Brydon, out of the interest of the applicant husband’s, Mr Tatum, interest in Super Fund 1 (the fund) is $68,289.70 (the base amount).
(b)Pursuant to s 90XT(1)(a) Family Law Act 1975 (Cth), whenever a splitable payment becomes payable in respect of the interest of the applicant husband, Mr Tatum, in the fund, the respondent wife, Ms Brydon is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount and there be a corresponding reduction in the entitlement of the applicant husband, Mr Tatum.
(c)That, having been accorded procedural fairness in relation to the making of this Order, this order binds the Trustee of the superannuation fund;
(d)That operative time for this Order is four (4) business days after the date of service of the Orders on the trustee of the superannuation fund.
15.That the husband be declared the sole owner in law and equity of Motor Vehicle 1, registration number …,.
16.That within 42 days of the date of these Orders, the husband will remove his personal items in the Suburb E Property including, but not limited to, tools, clothing, his furniture and all items that belong to the husband located in his study, the garage and husband’s wardrobe of the Suburb E Property.
17.That for the purposes of Order 16, the wife will allow the husband access to the Suburb E Property on four occasions for no longer than 8 hours each, within 42 days of the date of these Orders, at a time and date nominated by the husband and providing not less than 24 hours’ notice.
18.That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar or Deputy Registrar of the Federal Circuit and Family Court of Australia be and is hereby appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument upon been satisfied by affidavit of such neglect or refusal.
19.That each party be declared the sole owner in law and equity of all items of real property, personal property, chattels and financial resources in their name, possession or control not otherwise dealt with in these orders including but not limited to bank accounts, any choses in action and superannuation benefits.
20.That the parties do all acts and things and give all consents and execute all documents and writings necessary to give effect to the Orders made herein.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tatum & Brydon has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
INTRODUCTION
The applicant and the respondent seek property settlement orders following the breakdown of their marriage.
BACKGROUND
The applicant husband is 55 years old and the respondent wife is 50 years old. The husband migrated to Australia in 1999, obtaining a permanent professional job in 2000. The parties met while the husband was living in Australia and the wife was living in Country H. They married in 2002, in Country H. The husband returned to Australia a short time later while the wife remained in Country H until early 2003, when her visa was granted. The parties separated on 17 October 2021 after the husband was arrested and charged with an offence and the wife asked the husband to leave the matrimonial home (“the Suburb E property”). The parties were together for 19 years.
There are two children of the relationship, Ms B, who was born in 2005 and is now an adult, and X, who was born in 2009. The parties entered into interim consent orders on 8 December 2022 and final consent orders on 23 October 2023 (which only pertained to X). The parenting orders provide for the wife to have sole parental responsibility, X to live with the wife, spend time with the husband according to his wishes, and that the husband is restrained from consuming alcohol 24 hours prior to seeing him. Consent orders made on 8 February 2024 provide that the husband and X have telephone time in accordance with X’s wishes.
The husband seeks property settlement orders dividing the parties’ property 50 per cent to each the husband and wife. The wife seeks a division of 35 per cent to 65 per cent, in her favour. Both parties claim the other has undisclosed property or assets in Country H.
IS IT JUST AND EQUITABLE TO MAKE PROPERTY SETTLEMENT ORDERS
Section 79(2) of the Family Law Act1975 (Cth) provides:
(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
There was no dispute that in the circumstances of this case it is just and equitable to make property settlement orders as the existing legal and equitable rights of the parties to the marriage are no longer appropriate now that the parties are separated and the common use of the parties’ property has ceased.
ASSETS AND LIABILITIES OF THE PARTIES
The parties filed a joint balance sheet on 10 June 2024, which they updated during the hearing. Prior to final addresses, the parties resolved most of the differences in the joint balance sheet and the deletion of items 10, 11, 20, 23 and 24 (see Exhibit 15).
The wife’s interest in real property in Country H (Item 13 of Exhibit 15)
The husband claimed that the wife’s family sold land to developers, and in return, the wife received shares in several apartments and shops. The husband says some of these apartments have been sold and the proceeds are in the wife’s M Bank accounts. The husband also notes that the wife has been requested to amend her last tax return by the Australian Taxation Office due to a failure to disclose foreign income, but has not yet prepared the amended return, despite the obvious relevance to the hearing.
The husband lists multiple properties in which he alleges the wife has an interest, giving addresses and survey numbers. The husband claims that a deed of exchange and a succession deed name the wife as a beneficiary to these properties The evidence is otherwise sparse and far from clear.
The wife had long maintained that all the properties on the list were sold, with the money being distributed in 2016 and that her share was previously paid into her Country H accounts, which she has disclosed. The wife admitted to ownership of a share in an apartment only recently, too late for the husband to obtain a valuation without adjourning the trial. The wife has not produced any documents showing the disposal of the large number of properties. She has failed to produce her Country H tax returns, saying her brother prepared them, but giving no satisfactory answers as to whether she signed them or sought copies. She has not prepared her amended last tax return as requested by the Australian Taxation Office.
The wife says that the property at number 15 of the husband’s list (the apartment) has an approximate value of 25,00,000 Country H currency and if sold, the wife’s mother will receive 50 per cent of the proceeds, and the rest to be split between the wife and her brother. The wife submits her share (with the conversion rate accepted by the parties) is $11,244. There is no evidence as to the value, only the late admission of the wife.
The wife’s evidence was less than compelling on this issue. She had no explanation for falsely swearing on a number of occasions that she had no real property in Country H. The wife was well aware of the obligation of disclosure as part of her case was making similar allegations against the husband. If her real interests were as minor as her recent admission (less than $12,000) it is remarkable that they would not have been disclosed earlier as $12,000 is a minuscule part of the assets of the parties in this case, which easily exceed $3 million.
I am satisfied the wife has failed to provide full and frank disclosure. I am not persuaded to place any weight on her claim that this is her only property in Country H. This is not a case where her failure simply makes it more difficult to value her interests.
I am persuaded that the failure to disclose is such that it must be taken into account on the basis that the wife has assets in Country H from her inheritance, beyond the monies in her bank accounts and the admission of the 25 per cent interest in one property she says is of minimal value. It is appropriate to add the conceded amount to the balance sheet, but also to take into account the lack of disclosure more generally. I note that the non-disclosure relates to property inherited later in the marriage. I am persuaded that it is appropriate to take this into account when considering the factors set out in s 75(2) of the Act rather than when determining the assets of the parties or contributions to the identified assets.
The wife’s M Bank account …48 (Item 25a of Exhibit 13)
The wife’s account …48 appears to be a term deposit account as money regularly left her account …27 and returned to it. This is apparent from the entries in the statements for account …27. Whilst the evidence on the issue is far from detailed, I am not persuaded that additional funds are held in that account.
Addback – the parties’ interim distribution of $40,000 each (Item 26a of Exhibit 13)
This item is monies each party received as an interim property settlement. It is appropriate to include this amount as an addback representing monies each have received already.
Addback – Withdrawals from M Bank account …27 (Item 26b of Exhibit 13)
The husband claimed that the wife made withdrawals between June 2022 and March 2023 of 11,715,000 Country H currency (around $200,000) from this account. This sum was simply the total withdrawals she made from her Country H bank account. However, there were a number of transactions where the wife transferred 30,000 Country H currency to an investment account and the money was returned after what appears to be the investment period. On the sparse evidence available I am not persuaded that this simplistic calculation is an appropriate foundation for an ‘addback’.
However, the wife accessed the account to draw funds (repaid to her brother) to finance a holiday to Country H after separation (1,125,000 Country H currency) and also to transfer 3,055,000 (Country H currency) to the eldest child (without the husband’s consent). The transactions are:
(a)13/7/22 – Tax/Mr J withdrawal … $8,950
(b)14/7/22 – Tax/Mr J withdrawal … $1,342.50
(c)27/10/22 – Repayment/Mr J … $8,950
(d)31/10/22 – Loan repay/Mr J … $895
(e)15/3/23 – Ms B … $984.50
(f)31/3/23 – Ms B … $53,700
Total: $74,822
The wife has unilaterally dealt with these identified funds. The use of the funds for a holiday should be an addback as it is funds the wife has unilaterally used from assets that would otherwise be available for the property settlement. No adequate explanation was given for the transfer of such a large sum to the daughter (who lives with the wife), with the wife merely saying that it was a gift. I am persuaded that these sums should be accounted for as monies unilaterally used by the wife and added back to the list of assets. The parties agreed that the exchange rate should be $… per 1 Country H currency is appropriate, as is used in the table above.
Addback - Funds husband withdrew from Westpac joint account …94 on 29 December 2021 (Item 27 of Exhibit 15)
The wife claims the husband withdrew $94,000 from the parties’ joint Westpac bank account …94. This allegation is correct, however, the funds were returned to the account shortly afterwards (see Exhibit 3). In the circumstances, it would be double counting to addback this amount which has already been returned to the account.
Addback - Funds husband withdrew from joint Westpac account …94 on 2 December 2021 (Item 28 of Exhibit 15)
The wife alleges that the husband withdrew $120,000 from their joint Westpac account and has failed to account for this money. The husband used $96,134.03 for legal fees. The withdrawal of $120,000 by the husband was a premature distribution to him. To the extent that it was used for legal fees it should be added back. The use of the balance of the amount remained largely unexplained. It is appropriate that the total sum be added back to the list of notional assets of the parties.
Liability - Husband’s Loan from Mr K (Item 33 of Exhibit 15)
The husband’s loan from Mr K was taken after separation for his own purposes. It is not a debt that is appropriate to include in the balance sheet.
The husband’s alleged interest in real property, monies and chattels by way of inheritance from his father, and monies alleged to be held on trust for the husband by his brother from late father’s estate (Item 38 of Exhibit 15):
The wife argues that the husband has money held on trust by his brother (Mr C Tatum) resulting from the sale of a City L property (from his father’s estate). The husband denied that his brother is holding money on his behalf and denied that he has any interest in his late father’s estate.
The wife claimed that while in Country H in December 2022, she obtained court documents that named the husband as a beneficiary in his father’s estate. The documents produced at the trial appear to be part of a claim by the brother challenging the estate. There was no evidence of any interest by the husband. Significantly, the husband made an open offer to transfer to the wife any benefit that may accrue to him from the estate (claiming he had no interest in any event). The husband also offered to sign an assignment or transfer of any interest he may have in this regard to the wife (and for her lawyers to draft the assignment document) as he was clear that he had no interests. The wife did not take up this offer.
I am not persuaded that the husband has assets in Country H. At best, it appears that his brother is challenging his parent’s distribution of their estate, which does not appear to provide a realistic possibility of a benefit to the husband.
I find that the assets are as follows:
Ownership Description Value 1 J D Street, Suburb E, $1,950,000 2 H Motor Vehicle 1 $37,950 3 W CBA Bank Account …11 $26,411 4 H Westpac Bank Account …06 $142 5 J Westpac Offset Account …93 $137,916 6 W M Bank Account …31 $706 7 W M Bank Account …27 $18,248.39 8 W N Bank Account …50 $2,851.90 9 W CBA Bank Account …30 NIL 10 W N Bank Insurance NIL 11 W N Bank Account …21 NIL 12 H N Bank Account …32 4,000 13 W Interest in real property Country H $11,244 14 J F Street, Suburb G $900,000 15 W Motor Vehicle 2 $14,200 16 W Household Contents $14,310 17 H Household Contents $455 18 H Westpac Bank Account …71 $1,334 19 H Westpac Bank Account …62 $10 20 J Westpac Bank Account …94 NIL 21 H N Bank Account …90 $200 22 W M Bank Account …23 $47,000 23 W M Bank Account …33 NIL 24 W M Bank Account …34 NIL 25 W M Bank Account …34 $8,980.00 25a W M Bank Account …48 NIL Total $3,175,958
The assets received by the parties prior to trial that should be notionally added to the assets are:
26a J Interim distribution - $40,000 per party $80,000 26b W Withdrawals from M Bank Account …27 $74,822 27 H Funds H removed from Westpac joint account …94 on 29/12/2021 NIL 28 H Funds H removed from Westpac joint account …94 on 02/12/2021 $120,000 Total $274,822
The relevant liabilities of the parties are as follows:
LIABILITIES 29 J Suburb E mortgage $232,470 30 J Suburb G mortgage $201,948 31 H Westpac Mastercard …29 Not pressed 32 W CBA Mastercard Not pressed 33 H Debt to Mr K NIL Total $434,418
The parties’ superannuation interests are:
SUPERANNUATION Member Name of Fund Type of Interest Wife’s value 34 H Superannuation Fund 1 Accumulation $248,752 35 W Superannuation Fund 2 Accumulation $161,389.58 Total $410,142
The amount of superannuation is modest in comparison to the parties’ assets and it appears largely accumulated whilst they were together. Therefore, it is appropriate to approach the case on the basis of a single pool.
The total of the assets, add backs and superannuation, less the liabilities is $3,426,504.29. The total value excluding superannuation is $3,016,362.29.
CONTRIBUTIONS
The husband argues that the parties’ contributions are equal (leaving the question of the wife’s non-disclosure to be considered pursuant to s 75(2) of the Act). The wife submits that the contribution’s assessment should be 45 per cent to 55 per cent, in her favour. Neither party seeks to have the superannuation dealt with in a separate pool despite the limits upon how superannuation entitlements can be used.
Initial contributions
The husband purchased a property situated at O Street, Suburb P, NSW (“the Suburb P property”) in mid-2001, for $235,000. The husband paid $30,000 to obtain the property and later paid the entire mortgage through his savings account. At the commencement of the relationship, the husband still owned the Suburb P property (with a mortgage of approximately $176,552 by the time of the relationship), $64,663 in his Westpac account, just under $16,000 of superannuation, and a motor vehicle and furniture, valued at approximately $20,000 and $10,000 respectively.
The wife brought nominal assets to the relationship.
Contributions over the course of the marriage
Both parties contributed their efforts to the marriage.
The Suburb P property was sold during the marriage, in late 2011, for around $400,000, with net proceeds amounting to $332,764. The husband’s evidence is that he paid off the entire mortgage on this property, although it is clear that the wife was contributing in other ways throughout the marriage.
The Suburb G property
In mid-2007, the parties purchased the Suburb G property for around $300,000. The husband maintains that he transferred $30,000 from his savings, and also paid the monthly shortfall between rent received and the mortgage repayments, of around $300 per month. The husband spent four months fixing up the home after tenants moved out in early 2019, spending five hours a day and $10,000 on the improvements. The wife claims she also worked on the improvements over the course of a few weeks.
The Suburb E property
Around the time that the Suburb P property was sold in late 2011, the parties purchased the Suburb E property for $765,000. The husband paid the deposit of $76,500 using his savings account and applied the proceeds of the Suburb P property. The husband says he made all loan repayments for the Suburb E property and paid the mortgage. The husband states that he made several improvements to this property, amounting to approximately $18,500.
The wife’s inheritance
In 2011, the wife’s father passed away. The wife says that she inherited approximately $160,000. The wife claims the husband was the only one who held the online banking details of the account that had these funds. The wife says some of this money ($16,000) was used to furnish the Suburb E property. The wife also alleges $42,985 was applied to the marriage and used for things such as the husband’s professional exams in Country H as well as his travel. There remains money in the wife’s Country H bank accounts that have been disclosed, and monies that have been taken from those accounts (see above).
In late 2018, the parties and their children travelled to Country H where the husband says he paid all expenses amounting to $10,000. However, the wife claims her inheritance money was used for these airfares, amounting to almost $12,000.
I am persuaded to accept the wife’s evidence of receipt of around $160,000 by way of inheritance.
The parties’ wages and general expenses
The husband claims his wages were paid into the joint Westpac account, while the wife’s were paid into the Commonwealth Bank Account. The husband’s evidence is that both parties contributed towards utility and grocery bills using the joint Westpac account. The wife claims the husband forced her to put her wages into a joint account that she did not have access to. The children’s general needs were paid out of the joint account as well as the parties’ individual accounts, although the husband claims he paid $5,500 on their dental expenses.
The husband’s evidence is that he sponsored the wife’s spousal visa and paid for all her application fees. Before the wife was able to drive, the husband claimed he drove her to her destinations, and then paid for her driving lessons, with the wife obtaining her license in 2005. The husband says he purchased a motor vehicle for the wife for $8,810. Later, the husband stated he purchased both family cars, Motor Vehicle 1 for $117,395 and Motor Vehicle 2 for the wife for $34,250.
The wife sets out that she contributed financially by paying household bills, childcare payments, travel fees, groceries, as well as paying for the husband to take his exams overseas. The wife claims most of her salary was used to pay the husband’s monthly credit card bills. The wife says the husband was the only one with access to her salary as she did not have access to online banking.
It appears that the arrangements for the family finances were such that much of the husband’s income was used for asset accumulation and loan repayments whilst the wife’s income was used for the household.
The husband’s redundancy payout
The husband received a redundancy payout in mid-2013 for $86,854, with $70,000 being applied to the mortgage. The purpose of a redundancy payment is to provide income for a period during which the person must seek new employment. The amount of the payment is dependent upon the person’s length of service. In this case the husband’s relevant service appears to have been in very large part during the marriage.
The husband claimed he was the primary carer for the children during this time. The wife says that despite the husband being unemployed, the younger child continued childcare five days a week until he started school in January 2014, and the older child continued to be in after school care three days a week until the end of 2013, and that these expenses were paid from the wife’s $60,000 per annum salary at that time.
Non-financial contributions
The husband says the parties shared the role of homemaker, with the husband helping with cooking, cleaning, and laundry, as well as grocery shopping once a week, and also working on home maintenance and gardening. The husband claims he cared for the children for 3.5 months (with paid paternity leave) when the wife returned to work nine months after the birth of X in 2009. The wife says she was eligible for one year’s maternity leave (six months paid then unpaid), but the husband discovered he was eligible for paternity leave and forced her to go back to work, which she did not want. In mid-2016, the husband took a role that enabled him to work from home, allowing him to take the children to and from school and care for them, while the wife worked in the office.
The wife said her non-financial contributions involved doing all the cooking, cleaning, laundry and ironing, taking the children to their extracurricular activities, picking the children up from childcare and after school care, helping the husband with gardening, painting, and digging under the Suburb P property. The wife’s mother stayed with the parties and looked after the children, saving childcare costs for two years.
The wife disputes that the husband had a substantial role in caring for the children. It seems more likely that the wife was the primary carer of the children throughout the relationship.
Post-separation contributions
The consent orders provided for the children to spend time with the father in accordance with their wishes. The older child is now 18 years old. The husband does not have the care of either of the children, nor does he spend time with them. The husband says he has paid child support totalling $32,176.83. The wife sets out that she supported the children herself for a year after separation and that she had been paying for all school-related expenses and tuition fees, as well as the children’s therapy to deal with the domestic violence they witnessed. The wife says that the husband asked her not to apply for child support and that he would transfer funds to her account but that he never did, leading her to apply to the Child Support Agency in June 2022. She says child support was eventually garnished from his salary from 26 October 2022 onwards (approximately a year after the parties separated). The husband now pays child support of around $265 per week for the younger child.
The wife has had the benefit of living at the Suburb E property since separation. The husband was renting at $250 per week until early 2022, then $450 per week until mid-2023, when he moved to the Suburb G property. Both parties made contributions to the properties and outgoings after separation.
The wife’s claim for Kennon v Kennon (1997) FLC 92-757 considerations
In the wife’s affidavit filed 31 May 2024, the wife details a significant history of mistreatment from the husband. At the beginning of the marriage, the husband was unhappy with her cooking and verbally abused her, even, on one occasion punching the bedframe she was against. The wife claimed when she first moved to the Suburb P property, the husband forced her to dig around the pillars under the house each day so concrete could be put in to stabilise it. The wife felt she had no choice but to carry out this hard physical work as the husband would check how much she had dug when he returned home. She said she was also made to carry the concrete on weekends while the husband poured it under the house. The wife sets out that she was forced to have sex with the husband each night despite being exhausted from digging under the house each day. The wife claims the husband found an email correspondence she had had with a male friend, had gotten drunk and punched a hole in the wall, and threatened to kill her if she continued to correspond. The wife says she spent several nights in the bathroom as she was frightened when he drank.
The wife’s sets out that the husband denied the wife access to the computer and financially controlled her by instructing her to deposit her salary into a joint account and permitted the wife to have a weekly allowance of $40 for her train fare. The husband did not allow her to have online banking access or an ATM card. If the wife wanted to purchase something, he would accompany her to ensure it was necessary. After the wife travelled to Country H in late 2006, she says she refused to return to Australia if he did not “change his ways”. The husband gave her an ATM card but refused to give her online banking access. The wife’s evidence is that the husband also demanded she provide her online banking access for her Country H accounts and after she did, the husband changed those passwords the same night. After the wife inherited money from her late father, the wife says the husband was the only one with access to the account where this money was held. The wife claims the husband used these funds to pay for his exams, for airfares and accommodation, and for formal clothes.
While the wife was pregnant with the oldest child she says that the husband verbally abused her, and, at one point, dropped a plate of food on the floor to show he was displeased with her cooking.
The wife also sets out that the husband’s alcohol use was a significant problem, saying that on Friday and Saturday nights he would drink heavily, play loud music until 2.00 am to 3.00 am and at times, throw up on the kitchen floor. The wife claims he would carry dirt into the house and put it on the kitchen floor to give her extra work. The wife says that when she went down the stairs to check on the husband that he would throw a glass or television remote at her. She produced a photo of a door with a dent that appears consistent with being hit by a glass.
The wife recalls that in September 2013, during the period in which the husband was unemployed, he called her, drunk, and said he could not pick up the eldest child. When the wife returned home with the children there were perfume bottles, the wife’s cosmetics, canisters, crystal candle holders, photo frames, and other gifts the wife received as housewarming presents, broken against the front door. The wife sent the children upstairs and called the husband’s cousin to come over as soon as possible. The husband was undressed and very angry. The wife says he accessed her email and printed correspondence from 2007 with a male friend of hers. The husband threw a lamp at her, which missed. The husband then hit the wife on the face and called her a “bitch and a useless whore”. The husband’s cousin, Mr Q, came in with his wife and tried to calm the husband down. They called the husband’s brother who they believed could help the husband settle down. The wife and children spent the night at the house of the husband’s brother. The wife said she had a black eye but was too embarrassed to go to the police as she felt it was her fault for corresponding with another man.
The final incident occurred in late 2021 and was the catalyst of the parties’ separation. The wife describes the incident in her affidavit, saying that the husband had been drinking and was angry. The wife tried to move away from the husband when he grabbed her wrist and pinned her to the couch, and began shouting at her, saying words to the effect of “You fucking whore... Who the fuck do you think you are... You are my servant. You are a bitch.”. The husband proceeded to kick chairs, threw cushions to the floor, and tore up photos of the wife with her male friend. The doorbell rang, which allowed the wife the chance to ask the eldest child to call the police. The husband was taken to the police station and an apprehended domestic violence order was issued.
The husband’s account of the incident in his affidavit is brief:
I agree I lost my temper in the situation, following a build-up of work stress and covid lockdowns and raised my voice and threw pillows around the living room. I regret my actions. I say that this was a once off event. Since that time, I saw a psychologist, […] which has assisted me in managing stressful situations.
(Husband’s affidavit filed 31 May 2024, paragraph 107)
The wife claims that the following day after the incident, the husband gave her the details to the bank account with her salary and promised her he would not take her salary or touch the account again. He also ordered a laptop for her.
I have had the opportunity of seeing the husband and wife in the witness box and in cross-examination. I have also borne in mind the impact of the wife’s false claims concerning property upon her credibility. I accept the wife’s evidence concerning the claims of family violence.
I am persuaded that the conduct of the husband did make the wife’s contributions significantly more arduous and that this should be taken into account in assessing the contributions of the parties.
Conclusions as to Contributions of the identified assets
In the circumstances of this case, I assess the contributions of the parties at 53 per cent to 47 per cent in favour of the wife.
OTHER FACTORS
The parties are both employed. The husband’s financial statement filed 31 May 2024 records his weekly income as $1,669 and that he works as a professional on a full-time basis. The husband records his weekly expenditure at $3,316. The wife’s financial statement filed 28 May 2024 records a weekly income of $1,493 (together with $265 per week of child support) and that she works in customer service on a permanent, full-time basis. The wife records her weekly expenditure as $2,792. There was no real challenge to the incomes of the parties. The difference in their earnings is a little over $9,000 per annum. This factor weighs in favour of the wife.
The parties have not put forward evidence of health conditions that would affect their future earning capacity. Neither party is likely to see any significant changes to their circumstances into the future. However, the husband is five years older than the wife and therefore has a more limited working career before retirement than the wife (given they are now both over 50 years of age).
The wife has the full-time care of the children. X is fourteen. Ms B is now eighteen but studies full-time and is still living at home and supported by the wife. The wife, in substance, bears the total burden of caring for the children assisted only by the child support paid by the husband for X. The child support is not insignificant, some $265 per week, or around $13,780 per annum. The care arrangements for the children weigh in favour of the wife.
Whilst the house received by the husband has a potential CGT liability when sold, it is not proposed to be sold in the foreseeable future. Thus, it is appropriate to consider the potential CGT liability as only a minor factor under s 75(2) of the Act in favour of the husband.
I take into account my finding with respect to the wife’s failure to make proper disclosure, as discussed above, which weighs in favour of the husband. However, this factor must be seen in light of the finding that $160,000 of the wife’s inheritance had been brought to the relationship by the wife, the admission by her as to at least a small value for the interest she admitted she had in one property, and that the inheritance came relatively late in the marriage.
Ultimately, I am persuaded to make an adjustment of three per cent in favour of the wife to the contributions findings in the circumstances of this case.
JUST AND EQUITABLE
Draft orders were provided by the parties in order to effect the division of property on the basis that each retain the homes they are living in, a superannuation splitting order (in accordance with the requests of the superannuation funds) and a payment of an appropriate adjustment figure.
On a split of 56 per cent to 44 per cent in favour of the wife, she retains $1,689,162.88 and the husband $1,327,199.41, excluding superannuation. This is a difference of $361,963.47. After a split of superannuation to bring superannuation to 56 per cent to 44 per cent, the wife is to retain an overall total of $1,918,842.16 and the husband $1,507,661.70. Each will retain the property they have title to, and the wife will retain Suburb E property (and its associated mortgage) and the husband the Suburb G property (and its associated mortgage and the offset account). As the wife will be retaining more than 56 per cent of the pool, she must pay the husband an adjustment of $287,140.41.
The parties indicated they would both like to retain the properties they are residing in: the Suburb E property for the wife and the Suburb G property for the husband. I note that the children live at the Suburb E property with the wife. I have had regard to the effect of the decision and am satisfied that it is just and equitable.
I will therefore make orders that the husband transfer his rights and interest in the Suburb E property to the wife, and the parties shall ensure the husband is released from the mortgage on this property. Likewise, I order that the wife transfer her rights and interest in the Suburb G property to the husband, and the parties ensure that the wife is released from the mortgage on this property. The husband will retain the funds in the offset account.
It is appropriate to make orders providing for the possibility that the wife is unable to pay the husband the above sum, or that either party is unable to refinance the properties in their own name. A superannuation splitting order is necessary to effect the percentage split in superannuation (splitting $68,289.70 from the husband’s superannuation interests to the wife). I am not persuaded to leave the husband with greater superannuation given that the superannuation cannot be accessed by the parties until they retire.
The form of orders proposed by the husband at the end of the hearing made appropriate provision to effect this judgment (after insertion of the figures that flow from these Reasons for judgment) including the possibility that the wife is unable to pay the husband the settlement sum or that a party may be unable or unwilling to re-finance the mortgage on the property they are to retain and have to sell the property, and I make orders in those terms. I am satisfied that there is no real prospect of the husband being unable to refinance the mortgage on his property and therefore CGT is unlikely to crystalise, thus explaining the absence of provision for this in the husband’s proposed orders.
I am satisfied that the orders I propose to make are just and equitable and appropriate in the circumstances. I therefore make orders accordingly.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 25 June 2024
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