Thanos & Thanos (No 2)
[2024] FedCFamC2F 677
•5 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Thanos & Thanos (No 2) [2024] FedCFamC2F 677
File number(s): PAC 958 of 2022 Judgment of: JUDGE OBRADOVIC Date of judgment: 5 June 2024 Catchwords: FAMILY LAW – PROPERTY – Assessment of contributions & future needs – Children reside solely with one parent – adverse credit findings – Poorly prepared case
FAMILY LAW – PARENTING – No submissions made at hearing – Orders made in accordance with respondent’s uncontested application
Legislation: Family Law Act 1975 (Cth) ss 90SF, 90SM Cases cited: Aldrin & Celona [2021] FedCFamC1A 16
Bevan & Bevan [2014] FamCAFC 19
Blandford & Esmore [2022] FedCFamC1A 67
Chapman & Chapman [2014] FamCAFC 91
Dickons & Dickons [2012] FamCAFC 154
Inthe Marriage of Briese (1985) 10 Fam LR 642; [1986] FLC 91-713
In the Marriage of Weir (1992) 16 FamLR 154
Kennon & Kennon [1997] FamCA 27
Livesey v Jenkins [1985] 1 All ER 106
Oamra & Williams [2021] FamCAFC 117
Oriolo v Oriolo (1985) 10 Fam LR 665; [1985] FLC 91-653
Russell & Russell (1999) FLC 92-877
Scott & Danton [2014] FamCAFC 203
Stanford v Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120
Trevi & Trevi [2018] FamCAFC 173
Division: Division 2 Family Law Number of paragraphs: 165 Date of hearing: 7-8 February 2024, 9-10 May 2024 Place: Parramatta Counsel for the Applicant: Mr Givney Solicitor for the Applicant: Maclarens Lawyers Counsel for the Respondent: Mr Cairns Solicitor for the Respondent: Turnbull Law Pty Ltd ORDERS
PAC 958 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR THANOS
Applicant
AND: MS THANOS
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
5 JUNE 2024
THE COURT ORDERS THAT:
PROPERTY
1.Within 60 days of the date of these orders the respondent pay the applicant the sum of $494,659.
2.In the event that the respondent fails to comply with order 1, then forthwith the respondent shall sell the property situated at B Street, Suburb C (‘Property’), by private treaty at the earliest possible date at a price to be agreed on between the parties and failing such agreement to be determined by the proper officer of the Real Estate Institute of New South Wales or their nominee and that the proceeds of the said sale be disbursed as follows:
(a)Payment of agent’s commission and advertising expenses and legal expenses of the sale;
(b)Payment of any money due and owing to the mortgagee; and
(c)The net balance to be divided between the parties as follows:
(i)$494,659 to the applicant; and
(ii)The balance to the respondent.
3.In the event that the Property fails to sell by private treaty within a period of three months, the respondent take all necessary steps and execute all necessary documents to cause the Property to be sold by auction at the earliest possible date at a reserve price to be agreed upon between the parties and failing such agreement to be determined by the proper officer of the Real Estate Institute or their nominee and that the proceeds of this sale be disbursed as follows:
(a)Payment of agent’s commission and advertising expenses and legal expenses of the sale;
(b)Payment of any money due and owing to the mortgagee; and
(c)The net balance to be divided between the parties as follows:
(i)$494,659 to the applicant; and
(ii)The balance to the respondent.
4.Until the sale of the Property, the respondent continue to pay as they fall due all regular instalments in respect of the mortgage, council rates and water rates in respect of the Property and pay immediately any arrears in respect of the said instalments.
5.The respondent shall, on a date nominated by the applicant within 30 days of the date of these orders, make available to the applicant all plant, machinery, tools and equipment contained in the containers situated on the Property.
6.Within 14 days, the applicant shall transfer to the respondent any shareholding that he holds in D Pty Ltd.
7.The respondent indemnify and keep indemnified the applicant in respect of any tax liability relating to the following:
(a)Income from the company D Pty Ltd for 1 July 2018 to date;
(b)Any drawings attributed to the applicant from D Pty Ltd from 1 July 2018 to date;
(c)Any loans attributed to the applicant of borrowings by the applicant from D Pty Ltd from 1 July 2018 to date;
(d)Income from the company E Pty Ltd for 1 July 2018 to date;
(e)Any drawings attributed to the applicant from E Pty Ltd from 1 July 2018 to date; and
(f)Any loans attributed to the applicant of borrowings by the applicant from E Pty Ltd from 1 July 2018 to date.
8.The respondent shall be personally liable and will pay the tax liability for and on behalf of the applicant in the event of any demands made or proceedings instituted by the Australian Taxation Office (‘ATO’) against the applicant in relation to any of the moneys to which the ATO asserts was income in the hands of the applicant from sources referred to in order 7 above.
9.The indemnity referred to in orders 7 and 8 above shall be a charge against such sum or property received by the respondent by way of orders for property settlement herein for a period of three years from the date of these orders.
10.The orders below have effect from the operative time:
(a)That in accordance with paragraph 90XT(1)(a) of the Family Law Act 1975 (Cth), whenever a splitable payment becomes payable in respect of the respondent’s interest in Super Fund 1, the applicant is entitled to a base amount of $100,000 and there is a corresponding reduction in the entitlement of the person to whom the splitable payment would have been made but for these orders;
(b)That, having been accorded procedural fairness in relation to the making of this order, this order binds the trustee of the superannuation fund; and
(c)That the operative time for this order is four business days after the date of service of the orders on the trustee of the superannuation fund.
11.Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money under these orders or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all property, included choses-in-action, in the possession of such party as at the date of these orders;
(b)Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;
(c)Each party foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these orders;
(d)All insurance policies are to become the sole property of the owner as named; and
(e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
12.The respondent and applicant do all acts and things and give all consents and execute all documents and writings necessary to give effect to these orders.
13.In the event that either party refuses or neglects to execute any deed or instrument, a registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975 (Cth), to execute such deed or instrument in the name of such party and do all acts and things necessary to give validity to the operation of the deed or instrument.
PARENTING
14.That the respondent have sole parental responsibility for the children, X born in 2007 and Y born in 2009.
15.That the children spend time and communicate by phone or electronically with the applicant, with whom they do not live, as agreed between the applicant and the children.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
These are Reasons for Judgment in respect of competing property applications and an application by the respondent for parenting orders.
The parties were in a relationship for approximately 18 years, although never married. They separated in May 2021.
The parties have two children together, Y born in 2009 (15 years old) and X born in 2007 (17 years old) (collectively ‘the children’). The children live with the respondent and have not spent any time with the applicant since November 2021.
The respondent seeks an order that she have sole parental responsibility for the children and that they spend time with the applicant in accordance with the children’s wishes. The applicant conceded at the conclusion of the first day of hearing that he was not opposing the parenting orders sought by the respondent.
The children are 15 and almost 17, and they have seen very little of their father since late 2021. In all of the circumstances of this case, noting that the applicant does not oppose the orders sought by the respondent, that there are serious allegations of violence against the applicant, and that an apprehended domestic violence order is currently in place to protect Y from his father, it is in the children’s best interest that orders be made as sought by the respondent. No other parenting orders will be made. The matter was not addressed at all in closing submissions.
These Reasons for Judgment deal almost exclusively with the property aspect of the dispute.
The primary asset of the parties’ relationship is a real property located at B Street, Suburb C (‘Suburb C Property’). The Suburb C Property is a large parcel of land with a main residence and outbuildings situated on it. It was the parties’ home during the final period of their relationship and the respondent continues to live at the property with the children. The Suburb C Property had an agreed value of just over $2,000,000, and it is subject to a mortgage.
Each of the parties have superannuation, and there are at least two companies through which the parties have conducted business during their relationship. The businesses have not been valued, and the parties submit that they should be assigned a value of zero for the purpose of these proceedings. There is agreement between them that the respondent retain the business (as she is the sole director/shareholder) and indemnify the applicant in respect of any liabilities of the companies, but that the applicant retain the plant and equipment belonging to the companies which is stored at the Suburb C Property.
The net asset pool at the date of the hearing is agreed to be $1,401,344.
A significant matter in the proceedings has been the respondent’s attitude to full and frank disclosure, her less than adequately prepared case, and a consequential lack of capacity to understand the parties’ financial positions due to this lax attitude towards appropriate disclosure. The respondent has maintained that she had provided all of the documents and information which has been asked of her, and that it is her previous solicitor’s fault that things are unclear. These matters are discussed in more detail later in these Reasons for Judgment.
The Court ultimately finds that the parties’ property interests should be adjusted such that the respondent will receive 51% and the applicant 49% of the net pool. The respondent will be provided with the option of retaining the Suburb C Property and will be given a limited time to pay out the applicant, after which the property is to be sold. In all of the circumstances, and for reasons which are explained, such orders are just and equitable.
The Parties’ Applications and Documents Relied Upon
At the commencement of the hearing, the applicant’s application was that the Court make property alteration orders so that he receives a division of 60% and the respondent receives a division of 40% of the non-superannuation asset pool. The applicant sought that this be largely achieved by the applicant retaining the Suburb C Property and a cash payment be made from him to the respondent to result in his proposed split. The applicant also sought an order that 50% of each parties’ respective interest in superannuation be transferred to the other.
At the conclusion of the evidence the applicant’s case in respect of property adjustment orders was that:
(a)The respondent do all acts and things to sell the Suburb C Property;
(b)Pending the sale of the Suburb C Property, the respondent pay the mortgage instalments, rates and other outgoings;
(c)Following the sale of the Suburb C Property, after discharge of the mortgage and payment of fees, the applicant receive 55% of the sale price less the payment of the agent’s commission and legal fees less the sum of $646,115.42, and the respondent to receive the remainder;
(d)The respondent allows the applicant access to the containers on the Suburb C Property where the plant, machinery, tools, and equipment are located;
(e)The applicant transfer to the respondent any shareholding in D Pty Ltd; and
(f)The respondent indemnify the applicant for any tax liability for any income, drawings, and loans related to D Pty Ltd and E Pty Ltd from 1 July 2018 to date.
The applicant relied on the following documents:
(a)Outline of Case Document filed 5 February 2024;
(b)Amended Initiating Application filed 15 August 2022;
(c)Applicant’s Affidavit filed 2 February 2024;
(d)Applicant’s Financial Statement filed 2 February 2024; and
(e)Affidavit of Mr F filed 5 February 2024.
At the commencement of the hearing, the respondent’s application was that she receive a division of 70% and the applicant receives 30% of the non-superannuation property pool. The respondent sought that this be largely achieved by her retaining the Suburb C Property and a cash payment be made from her to the applicant to result in her proposed split. With regard to superannuation, the respondent sought an order that the applicant receive a base amount of $100,000 from her superannuation fund.
At the conclusion of the evidence, the respondent’s case in respect of property adjustment orders was that:
(a)The respondent pay the applicant $400,000;
(b)If the respondent is unable to obtain the funds to pay the applicant, the Suburb C Property be sold and the proceeds be distributed, after payment of agent’s commission, fees, and discharge of the mortgage, such that $400,000 is paid to the applicant and the remainder to the respondent;
(c)Until the sale of the Suburb C Property, the respondent pay the mortgage and rates;
(d)The applicant retain all the tools of trade;
(e)The applicant retain his Super Fund 1;
(f)The respondent transfer to the applicant all her right and title in her shares;
(g)The respondent retain her right and title in the Suburb C Property;
(h)The respondent retain the mortgage on the Suburb C property;
(i)The respondent indemnify the applicant in relation to proceedings instituted by The Commissioner of Taxation;
(j)There be a superannuation splitting order in relation to the respondent’s Super Fund 1 in which the applicant is entitled to a base amount of $100,000 whenever a splitable payment becomes payable; and
(k)Except as otherwise specified, each party retain all property, moneys, policies, and liabilities currently in their name to the exclusion of the other, and that any joint tenancy in any real or personal estate is severed.
The respondent relied on the following documents:
(a)Outline of Case Document filed 1 February 2024;
(b)Response to Final Orders filed 17 February 2023;
(c)Amended Financial Statement filed 22 January 2024; and
(d)Respondent’s Affidavit filed 10 January 2024.
The following documents were exhibits in the proceeding:
·Exhibit 1 being Financial Statement sworn by respondent on 16 February 2023 filed 17 February 2023 which forms part of the Court file;
·Exhibit 2 being Land Registry Services historical search for folio … strata …, transfer stamped in mid-2003 for same property, mortgage dated mid-2003, and copy NAB statement addressed to the respondent at G Street for account ending in #...71 being Bank Account pages 2 of 2;
·Exhibit 3 being bundle of statements for accounts #...92 and #...94 for period of 2015 to October 2023;
·Exhibit 4 being statements for H Bank account in the name of the applicant #...72 for the period 15 July 2020 to 1 July 2023;
·Exhibit 5 being bundle of statements from 17 March 2022 through 7 February 2023 for account ending #...84;
·Exhibit 6 being a letter from J Company to the respondent undated;
·Exhibit 7 being a letter from Maclarens Lawyers to Turnbull Law dated 22 April 2024 and a letter from Turnbull Law to Maclarens Lawyers dated 22 April 2024;
·Exhibit 8 being Affidavit of the respondent sworn 15 December 2022 filed 17 February 2023;
·Exhibit 9 being a letter from Maclarens Lawyers to Turnbull Law dated 23 February 2024 and a letter from Turnbull Law to Maclarens Lawyers dated 26 February 2024; and
·Exhibit 10 being Westpac Banking Corporation bank statements for period 3 November 2014 to 17 August 2018 for account ending in #...80.
RELEVANT LEGAL PRINCIPLES: PROPERTY
The overall approach to the determination of an application for property adjustment orders was set out by the High Court in Stanford v Stanford (‘Stanford’).[1] The High Court recorded three fundamental propositions. The first was the need to identify existing legal and equitable interests; the second was that those interests can only be altered by a principled application of judicial discretion; and the third was that, the requirement that the Court must not make any order unless it is satisfied that in all of the circumstances it is just and equitable to make the order, requires separate consideration and should not be conflated with the statutory considerations required to be taken into consideration as to what order, if any, should be made.[2]
[1] See Stanford v Stanford [2012] HCA 52 [37]-[42].
[2] Oamra & Williams [2021] FamCAFC 117 at [35].
Such approach was subsequently considered by the Full Court of the Family Court in Bevan & Bevan, Chapman & Chapman and Scott & Danton.[3]
[3] Bevan & Bevan [2014] FamCAFC 19 (‘Bevan’), Chapman & Chapman [2014] FamCAFC 91; Scott & Danton [2014] FamCAFC 203.
This approach was confirmed to also be applicable to de facto couples seeking property adjustment orders pursuant to s.90SM of the Family Law Act 1975 (Cth).[4]
[4] Aldrin & Celona [2021] FedCFamC1A 16 (Austin, McEvoy & Altobelli JJ) at [12-13] (‘Aldrin’).
As such, once the issue of whether it is just and equitable to make any order is resolved, the Court is to then consider the contributions made by the parties as defined in s.90SM(4)(a) to (c), the matters set out in s.90SM(4)(d) to (g), and in particular the subjective considerations as to the parties by having regard to the provisions of s.90SF(3) in so far as they are relevant.
The Court is then to consider the justice and equity of the actual orders to be made, in the context of the Court’s obligations to make appropriate orders as provided for in s.90SM(1) of the Act.[5]
[5] See generally, Russell & Russell (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, but in the context of s.79.
It is necessary to make a holistic assessment of the relevant matters and the parties’ contributions, and not to undertake an accounting of scoring exercise.[6] ‘The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship’.[7]
[6] Blandford & Esmore [2022] FedCFamC1A 67 (Aldridge, Harper & Riethmuller JJ) at [14].
[7] Dickons & Dickons [2012] FamCAFC 154 at [24].
The just and equitable requirement is ‘one permeating the entire process’.[8]
[8] Bevan at [86].
Non-disclosure
In financial proceedings between de facto spouses, each party must make a full and frank disclosure of all material facts.[9] The mere compliance with rules of the Court or practice directions does not alter the basic principle of the need for full and frank disclosure. The purpose of full and frank disclosure must be ‘the need for each party to understand the financial position of the other party, which is at the very heart of cases concerning property’.[10]
[9] See for example: Livesey v Jenkins [1985] 1 All ER 106; Inthe Marriage of Briese (1985) 10 Fam LR 642; [1986] FLC 91-713 (‘Briese’); and Oriolo v Oriolo (1985) 10 Fam LR 665; [1985] FLC 91-653 (‘Oriolo’).
[10] See Briese, approved by the Full Court in the case of Oriolo.
Where there is clear evidence of non-disclosure, the Court should not be unduly cautious about making findings in favour of the innocent party.[11]
FINDINGS
[11] In the Marriage of Weir (1992) 16 FamLR 154.
Short History
The applicant was born in 1983.
The respondent was born in 1979.
In mid-2003, the respondent purchased a home at G Street, Suburb K (‘Suburb K home’) for $295,000, subject to a mortgage of $245,000. This property was sold in 2005 for just over $280,000.
The parties commenced living together no later than late 2006 or early 2007.
In 2007, the parties’ first child X was born.
In 2007, the respondent commenced operating a business called ‘L Business’. In or around 2007, the applicant injured himself whilst at work and did not return to work until in or around 2009.
In 2009, the parties’ second child Y was born.
In 2010, M Pty Ltd was incorporated, with both parties named as directors.
In 2010, the applicant borrowed $255,000 from his father, secured against his father’s property in Suburb N.
In 2010, the parties purchased O Street, Suburb P (‘Suburb P Property’) for $620,000, subject to a mortgage of $500,000. Suburb P Property was registered in the respondent’s sole name.
In 2011, the applicant inherited the property in Suburb N (‘Suburb N property’), which he sold for $230,000 and discharged the mortgage secured against the property.
In 2012, the parties sold M Pty Ltd for $394,000.
In 2013, the parties incorporated D Pty Ltd.
In 2014, the parties sold Suburb P Property for $975,000, netting $380,000.
In 2015, the parties purchased the Suburb C Property, once again in the respondent’s sole name. The property was subject to a mortgage of $750,000 at the time of purchase. The Suburb C Property comprised of vacant land and an outbuilding. The parties then built a large home on the property, and outbuildings.
In 2016, the respondent qualified as a tradesperson and incorporated the company E Pty Ltd. She is the sole director and shareholder.
In 2017, the respondent received a $25,000 inheritance and a further $22,000 from her mother.
In 2018, the respondent changed her surname to that of the applicant’s despite the parties not being married.
The parties separated in May 2021. At that time, the applicant moved out of the main house and into one of the outbuildings located on the Suburb C Property. He vacated the Suburb C Property later in 2021.
As at the time of hearing, the respondent remains living with the children at the Suburb C Property.
Contributions at the commencement of the Relationship
The applicant is a tradesperson, who obtained his qualifications after leaving school and completing an apprenticeship. He had worked for various employers and at or around the time the parties commenced their relationship, he was working but suffered a workplace injury shortly thereafter.
In or about mid-2003, the respondent purchased the Suburb K property for $290,000, with a mortgage of $240,000. In late 2005, the respondent sold the Suburb K Unit for $285,000. Shortly prior to the sale of the Suburb K property, the respondent had some $12,800 in a mortgage offset account. At the time she sold the Suburb K property, the respondent had at most approximately $50,000, made up of savings and the net proceeds of sale.
The parties are in disagreement as to when cohabitation commenced and while the Court has found that they were certainly living together as early as late 2006, on the applicant’s evidence the parties lived together from 2005. The applicant says that from 2005 the parties lived in a property owned by the applicant’s employer for a period of three months. No rent was payable. For eight months following this, the parties maintained a private rental. The Court accepts the applicant’s evidence about these matters.
At the time the parties commenced cohabitation, the applicant was still married to his previous wife, albeit separated. Either shortly before the commencement of the cohabitation or shortly thereafter, the applicant and his former wife sold their former home and the applicant received $60,000. His evidence, which has not been challenged, is that he had approximately $20,000 or $30,000 in superannuation at the commencement of the parties’ relationship. The applicant also brought into the relationship some debts, which were paid by the respondent initially and then repaid by the applicant to the respondent.
The respondent’s evidence is that she loaned the applicant $100,000 to assist him in paying his mortgage and other debts. The applicant’s evidence is that it was only $30,000.
The respondent does not explain in her evidence-in-chief, how at age 27 or 28 (in 2006/2007) when she was, on her own evidence, ‘earning minimum wage’,[12] she had been able to lend to the applicant $100,000, nor does she tell the Court how she was able to have access to $100,000 to lend to the applicant.
[12] Respondent’s Affidavit filed 10 January 2024 at [26](c).
Exhibit 8 (tendered in the applicant’s case), which is the respondent’s affidavit filed in February 2023, notes at [8] that the respondent ‘lent’ the applicant $100,000 at the time of cohabitation. She explains that she borrowed $25,000 from ANZ by way of personal loan in order to assist the applicant, and there were ‘further small loans made over a period of time’. The respondent counts the $25,000 loan contribution as $39,116.20 (being with interest paid), which is the total amount to be repaid over a 7-year period. The Court notes its comments at [130]-[131] in respect of the borrowings by the respondent in 2007.
This is the same loan which the Court has found at [130] that the respondent says she took out to pay for a machine to conduct her business.
The parties were living together at the time. Any borrowing by the respondent was done during the parties’ relationship, as was the repayment of the loan. There is no evidence in the respondent’s case as to her source of income for the ‘further small loans’ nor in respect of the repayment of the loan. Exhibit 8 indicates that the respondent repaid the ANZ loan from money earned in her business ‘L Business’.[13]
[13] Discussed later in these Reasons for Judgment.
The parties agree that the respondent did assist the applicant by lending him some money at the commencement of their relationship, and the Court finds on balance that it was likely a sum closer to $30,000 than $100,000.
At the commencement of the parties’ relationship, the parties’ assets were not significant. They each had an interest in a property which was subject to a mortgage, the applicant had a business which was in financial difficulty and other debts which the respondent assisted him with.
Contributions During the Relationship
In or about 2007, the applicant injured himself whilst at work. He did not work again until 2009 and received income insurance in the sum of $1,500 per week during this period.
From the time they commenced cohabitation until 2010, the parties lived at a property owned by the applicant’s father in Suburb N, where they paid no rent.
In respect of the Suburb N property which the applicant inherited from his father in 2011, the respondent asserts that she contributed to this property by her funds from L Business, using family payments, and proceeds from the Suburb K property performing renovations, paying costs of living, and by paying the mortgage. She asserts some of these moneys were made up of a $25,000 loan from ANZ and further small loans made over a period to the applicant. The difficulty with such evidence is that it contradicts other evidence, including that in her earlier affidavit (Exhibit 8). As noted at [54] the respondent asserted that the moneys she lent to the applicant at the start of the relationship (being $100,000) came from, in part, the ANZ loan.
Until X’s birth in 2007, the respondent worked as an allied health worker.
Family Businesses
The parties operated various companies and businesses during the course of their relationship.
The parties not only readily intermingled company finances with their own, but they treated the incomes from the businesses as their own money. There may be significant taxation implications for either one or both of the parties as a result of the way the company finances were treated by the parties.
The respondent, who was the legal owner of the parties’ three properties, often moved money around between different accounts, used whatever may have been readily available, without, it seems, any rhyme or reason or at least none that was explained by her in her evidence, to pay for whatever she deemed appropriate. Whether it be business costs, trades people who worked on the Suburb C Property, personal expenses, or children’s expenses, it was a hotchpotch of expenses paid from various accounts and money moved here there and everywhere. The applicant, to his credit, went to considerable effort in his evidence to try to explain the parties’ spending and at least tried to trace, through the various accounts, where certain moneys have gone. The respondent chose not to do so, which is particularly noteworthy, as most of the accounts in question were in her name.
The respondent says that she handled the parties’ finances almost exclusively, that the applicant was careless and regularly spent all his money on alcohol, illicit substances, and prostitutes. She has not been able to produce any bank statements which support these assertions, nor has she been able to identify cash withdrawals which she says were moneys spent on such lecherous and base activities. Given her handling of the parties’ finances, the Court would have expected the respondent to be able to show how much money the applicant is said to have wasted on such activities.
L Business
In or about 2007, after completing training to work as an allied health worker, the respondent purchased a machine for the purposes of her business. She says she paid $30,000 for the machine and that she funded its purchase through a loan. She then commenced a business under the name ‘L Business’ which operated for a period of some nine to twelve months.
The only documents produced in respect of an ANZ loan in 2007 are those which are annexed to the respondent’s affidavit of 17 February 2023 (Exhibit 8). The document is an offer of a personal loan for $25,000 dated mid-2007. Except for the respondent’s word, there is nothing else to show that the respondent actually accepted the offer. In this regard, the Court notes its comments at [130]-[131].
There is no probative evidence as to the income earnt by the respondent through L Business. She asserts that the business was successful enough that she was able to pay the entirety of the deposit for the purchase of Suburb P Property. This of course is not borne out on the evidence for reasons which are explained later.
On both parties’ evidence, the respondent did run the business and did have a machine. It is therefore more likely than not that the respondent took out the personal loan of $25,000 in 2007 from ANZ to fund the purchase of the machine which she used in her business. By the same token, the respondent could not have used these same moneys to assist the applicant in paying his debts at the commencement of the relationship or towards the expenses associated with the Suburb N property, as she also asserted.
M Pty Ltd
As noted earlier, M Pty Ltd was incorporated in 2010. At the time of incorporation, the parties each had 100 shares in the company out of 200 issued shares, and both were named as directors. The respondent then ceased being a director and, when the business was sold in 2012, the applicant resigned and the parties sold their shares in the business.
After he returned to work from his injury, the applicant worked for M Pty Ltd where he drew a salary of $100,000 per annum.
M Pty Ltd imported supplies from Country Q. The parties were the only shareholders. The applicant was mainly responsible for the running of the business, while the respondent worked in it as a salesperson for a period of about six months.
The applicant’s evidence in respect of M Pty Ltd and its funding is confusing, and appears to contradict his evidence elsewhere. The applicant’s evidence is that he used the moneys he loaned from his father, $255,000, to set up M Pty Ltd. The applicant says that M Pty Ltd purchased 3-4 containers of supplies at $70,000-$80,000 each. He also says that a portion of the loan in the amount of $126,000 was a deposit for Suburb P Property.
The difficulty is that the applicant does not explain how M Pty Ltd was able to fund the purchase of the containers which, according to his evidence, could have cost as much as $320,000. If the loan from his father was used for this, it could not also have been used for a deposit for Suburb P Property, unless of course the containers were not all bought at once.
The business appeared to be relatively successful, and it was sold in mid-2012 for $390,000. These funds were deposited into the respondent’s bank account pursuant to the agreement for sale.
D Pty Ltd and E Pty Ltd
The parties incorporated D Pty Ltd in 2013, and both held shares in the company and were its directors. Even though both parties worked in the business, only the respondent drew a wage. The wages she was paid by D Pty Ltd paid for the family expenses including the mortgage. The applicant was the person who conducted the managerial and works associated with services of D Pty Ltd, and the administrative duties were carried out by a bookkeeper.
E Pty Ltd was incorporated in 2016, and the respondent was the sole director and shareholder. E Pty Ltd replaced D Pty Ltd as the company the parties conducted works under and the applicant essentially continued in the same capacity as he had under D Pty Ltd, the key difference being that the administration duties of the business were under the supervision of the respondent. Following its incorporation, the applicant drew a wage from E Pty Ltd.
Between early 2014 and mid-2021, the companies obtained work by carrying out work in property developments. As well as the applicant and respondent working in the companies, the companies employed four other tradesmen and between 2-15 contractors at any given time to complete the required work.
Purchases of Property
In late 2010, Suburb P Property was purchased by the parties for $620,000, funded in part by a loan of $500,000.
Prior to the commencement of the parties’ relationship, the respondent had been the owner of the Suburb K property. As noted earlier in these Reasons for Judgment, the most that the respondent had at the time she sold the unit was approximately $50,000. This was in 2005. She asserts that these moneys were used as a deposit for Suburb P Property, together with an inheritance of $25,000 in 2006.
The respondent also says that, when Suburb P Property was purchased, she contributed $148,000 from her savings account from her ‘earnings from L Business’. Of course, the respondent does not provide any bank statements or other corroborating evidence to back up this assertion. L Business only operated for about 9-12 months. The respondent has never deposed to its income, nor provided in her evidence any financial statements of that business.
The Court does not accept the respondent’s evidence as to the source of the funds for the deposit for Suburb P Property purchased in late 2010.
In early 2010, as noted earlier, the applicant borrowed $255,000 from his father. The funds were drawn down in three lots between early and mid-2010. The applicant says that the parties used $126,000 of that $255,000 as a deposit for Suburb P Property. On balance, the Court accepts that this is the source of part of the deposit, but that the balance likely came from moneys held in the respondent’s accounts or potentially from one of the company accounts.
The parties undertook some renovations of Suburb P Property, including the building of a pool. While both the applicant and the respondent participated in the renovations, the applicant applied his skills and conducted much of the work himself, such as rendering, construction of a pergola, and other structures.
In mid-2012, following the sale of M Pty Ltd, the entire proceeds of sale of $395,000 were deposited into the respondent’s bank account.
Suburb P Property was sold in late 2014, and the parties received net sale proceeds of $382,000. These funds were deposited into the respondent’s bank account.
In early 2015, the parties purchased the Suburb C Property. A part-deposit of $210,319.86 was paid from the respondent’s bank account, where Suburb P Property proceeds had been deposited. It is unclear on the parties’ evidence where the balance of the deposit of $50,000 came from.
At the time of the purchase, the Suburb C Property consisted of land and an outbuilding. The parties initially lived in a caravan on the property, until they built a home on the property into which they then moved. The parties subsequently built a larger house on the property with a pool.
There have been significant works done on the Suburb C Property since its purchase in early 2015, although the works are not yet complete and final occupation certificates are yet to be issued. The applicant stated the work that needed to be completed in order to obtain an interim occupation certificate was in relation to the pool where an oversight by the surveyor and architect led to the level being incorrect, that an application needs to be made to change the location of a window, and external tiling needs to be completed.[14]
[14] Affidavit of the applicant filed 2 February 2024 at [39].
In addition, the parties constructed outbuildings on the property. Construction of one of the outbuildings involved shipping a container from Country Q, with the other containers being sourced locally. The respondent currently allows people to stay in these outbuildings, despite none of them having current occupancy certificates, and R Council cautioning the respondent of the commercial use of the outbuildings without compliance.
The parties caused the following work to be done in relation to the Suburb C Property:[15]
[15] Affidavit of the applicant filed 2 February 2024 at [38].
(a)Engaging an architect to develop plans for the Suburb C Property;
(b)Engagement of the Town Planner of R Council for first stage approval;
(c)Installation of conduits and 3-phase wiring for power;
(d)Installation of bio-cycle sewer treatment plant;
(e)Excavation for sewer pump system and lines connecting the outbuildings;
(f)Importing a container home from Country Q and purchase of other containers locally;
(g)Construction of concrete piers;
(h)Excavation for services to the outbuildings;
(i)Installation of services including plumbing and electricity;
(j)Installation of the kitchens in the outbuildings;
(k)Installation of a sewer out system;
(l)Construction of bedrooms;
(m)Installation of the bathrooms and laundries;
(n)Installation of the kitchen in the Suburb C Property;
(o)Construction of living areas;
(p)Installation of the pool and fencing;
(q)Construction of a causeway/driveway; and
(r)Construction of a dining area.
Each of the parties claims credit almost entirely for the works done. The Court finds it was a joint endeavour.
Homemaker Duties
Throughout the parties’ relationship, the respondent was the primary homemaker and parent.
While the applicant was, from time to time, involved with the children’s activities, the respondent took on the bulk of the responsibility for their care and the welfare of the family. She was also mostly responsible for ensuring that the house ran smoothly, that the bills were paid on time, that the groceries were bought, and that there was food on the table.
The applicant maintained the lawns and gardens, and from time-to-time cooked barbeques for the family or when entertaining.
The respondent was by and large responsible for managing the parties’ lives and their finances. She was the one who ensured that what needed to be done was done. The applicant trusted the respondent to take care of things, while he concentrated on earning an income and working. This is not to say that the respondent did not work and earn an income, she did.
Lifestyle & Spending
During the parties’ relationship, they enjoyed a lifestyle that seems to have been beyond their means. They went on expensive holidays together and the respondent enjoyed having luxury and designer goods.
Family Violence
The respondent says that during the parties’ relationship, the applicant perpetrated family violence against her and the children. She gives examples of this, including that the applicant:
(a)Said to X things like ‘slut’, ‘you’re going to have a baby at 15’, ‘bitch’, ‘look at you, look at you’;
(b)Said to the respondent things like ‘fucking bitch’, ‘look at you, you slut’, ‘look at you, you’re bitch. You’re going to fuck a politician aren’t you, you cunt’, ‘you slut, fuck you’re religion [sic], you’re all terrorists’;
(c)Said to Y things like ‘look at you, you fatty’ and ‘go and do some exercise, you little smartarse’;
(d)Propositioned his best friend’s 20-year-old daughter to ‘sit on his face’ in 2021;
(e)Abused Y by strangling him multiple times;
(f)Said to the respondent ‘fuck your religion’; and
(g)Said to the respondent and the children ‘I’m going to make you homeless’ and ‘I’m going to make you sell the house so you have nowhere to live’.
The respondent does not make any claim based on the principles in Kennon & Kennon,[16] but did submit that the Court should take these matters into consideration when assessing the parties’ contributions. Such a submission is confusing and misunderstands the law.
[16] [1997] FamCA 27 (“Kennon”).
Contributions Post Separation
The respondent has remained living with the children in the Suburb C Property. She has undertaken further works on the property. No evidence is before the Court as to any increase in value as a consequence of the work which the respondent has undertaken post separation. She has not sought to particularise the work nor has she sought to obtain the evidence of a quantity surveyor or similar in respect of such improvements.
The children have lived with the respondent in the main residence at the Suburb C Property from separation to date. The respondent says that the applicant has shown no interest in spending time with the children since 2017, save for some sporadic text messages from the applicant to the children.
In an affidavit filed in February 2023, the respondent says the applicant has never paid child support, whilst in an affidavit filed in January 2024 the respondent says she receives $57.17 per month in child support payments from the applicant.
The outbuildings on the Suburb C Property have never received an occupancy certificate. The respondent appears to criticise the applicant for residing in the outbuildings after he left the matrimonial home but also says that she has been leasing the residences privately since early 2021.
The respondent also says that she has had family and friends periodically stay in the outbuildings and she received $20,000 in 2023 in payments for this.
The respondent has re-partnered with a man named Mr S. The respondent’s evidence about her living arrangements with Mr S is confusing and contradictory. Together with his 16-year-old son, Mr S resides at the Suburb C Property with the respondent and the children for most of the week. Mr S earns approximately $150,000 per annum.
The respondent says Mr S has contributed to the Suburb C Property and to the living costs of the respondent and the children by:
(a)Painting;
(b)Organising and paying for builders to build three new outbuildings;
(c)Maintaining the house;
(d)Paying for the gardener;
(e)Paying for the lawn mowing;
(f)Paying for shopping and groceries;
(g)Paying for school fees;
(h)Paying for council rates;
(i)Paying for electricity bills; and
(j)Paying the respondent’s legal fees.
Mr S and the respondent have started a new business operated from a recently incorporated company called ‘T Pty Ltd’.
The respondent was most recently studying, but is no longer doing so.
The respondent currently pays all outgoings and mortgage payments on the Suburb C Property, through the financial assistance provided to her by Mr S and her brother, and from money taken from the offset account after separation.
In 2023-2024, R Council had been in contact with the respondent regarding the lack of compliance and occupation certificates for the structures on the Suburb C Property. The respondent says there is a risk that the Council will make an order that all structures are demolished.
Post separation, the respondent has continued to enjoy the lifestyle she had prior to separation. For example, she purchased a sports car through one of the family businesses, and by borrowing funds from her brother. The car is a luxury motor vehicle. Her spending habits do not seem to have abated notwithstanding the parties’ changes in circumstances, and the changes to their family business. Indeed, her evidence is that her spending is the same.
After separation, the respondent removed $159,000 from the mortgage offset account and transferred it into the parties’ son’s account. All of this money has been spent. The respondent has also borrowed over $400,000 from her brother over the same period, with all of that money too having been spent.
As such, since the parties’ separation, the respondent has spent over $550,000.
The respondent has not accounted for her spending in her evidence and these matters were the subject of cross-examination. While the Court accepts that some of this money has been used towards the mortgage and that she has spent approximately $250,000 in legal fees, the respondent said in cross-examination that she has used moneys to pay for the children’s schooling, for trades people working on the Suburb C Property, for living expenses and similar. It was a poor effort by the respondent to explain where the money has gone.
On the evidence, the respondent has spent on average $183,000 net per year post separation.
Future Needs
The applicant is 61 years old. The applicant is and has, at all relevant times, been a tradesperson. On all accounts, he is skilful in his trade. The applicant is presently employed.
The respondent is 45 years old. The respondent has at varying times been an allied health worker, an administrative assistant, and a tradesperson.
While it seems there was fairly recently a time when the respondent aspired to be a health care worker, she is no longer undertaking those studies. She has in the past obtained different qualifications in order to do work that she was interested in.
On the respondent’s evidence, she is hardworking and conscientious, and a capable businesswoman.
The respondent has access to significant financial resources through her extended family and partner, and her brother has given her over $410,000 in the last three years. While the respondent says that such moneys are a loan and that she would like to pay her brother back, her evidence is also that her brother does not have any expectation as to when she will pay him back. Indeed, the respondent was at pains to point out that her family is there for her and that they will provide her with whatever support she may need or want.
The Respondent’s Credit
The respondent’s evidence was riddled with loose statements, imprecisions, a deficiency of explanation and basis for assertions where explanation was available, and lack of corroboration through documents which were accessible to her.
An early and blatant example of problematic evidence in the respondent’s case are her assertions in her evidence-in-chief in respect of the Suburb K property, which she purchased in 2003 and sold in 2005:
(a)At [18](a) of her affidavit the respondent deposes:
I sold the [Suburb K property] [in late] 2005 for $[285],000. My mortgage was $12,808.50 in credit.
(b)Exhibit 8, which was her affidavit filed 17 February 2023, asserts exactly the same thing at [15], except that it purports to provide corroborating evidence of those assertions by annexing a Transfer for the sale of the property and a bank statement for the offset account associated with the mortgage. The Transfer is not dated late 2005, (albeit it is stamped in late 2005) – all of which is confusing. The bank statement annexed to the affidavit shows a balance of $12,808,50 in the respondent’s offset account, not her loan (mortgage) account and only as at late 2005, which was a month before the respondent says she sold the property.
It was not until the tender of a historical search in respect of the Suburb K property, in the applicant’s case, that the date of the registration of the transfer of the property could be established with certainty. It is also clear that the respondent’s evidence about her loan account being in credit as at the date of the sale of the Suburb K property is not correct.
A further example of the difficulties in the respondent’s case is her evidence in respect of the Suburb N property and the way the proceeds of sale of the Suburb N property were spent.
The Suburb N property was inherited by the applicant and sold in 2011 for $250,000. Prior to that, in 2010, the applicant’s father lent the applicant $255,000 which was obtained by way of a loan secured against the property.
The respondent asserts that the applicant’s father transferred him a 20% share in the Suburb N home for $1 which then allowed the applicant to mortgage the property and obtain a loan of $250,000.
The respondent’s evidence in respect of the use of the proceeds of sale of the Suburb N property is varied:
(a)Her evidence-in-chief asserts that the funds were used to pay off the outstanding mortgage over the property;
(b)Exhibit 8 (the respondent’s February 2023 affidavit), has the respondent asserting that the funds were used to invest in the applicant’s business; and
(c)In that same affidavit (Exhibit 8), the respondent asserts that the inheritance of $250,000 was directed towards investing in the applicant’s business, it was dissipated and wasted by the applicant on ‘his drinking, womanising and failed business ventures’.
If the Court was to accept the respondent’s evidence, not only did the applicant waste $250,000 which he was able to borrow against a 20% interest in the property, but that when he inherited the property and sold it (within about a year) for $250,000, he spent the sale proceeds on not only paying back the loan of $250,000, but also on his business, on failed business ventures, and on drinking and womanising. The respondent’s evidence is simply nonsense.
A third example of the respondent’s problematic evidence is as follows. When regard is had to the respondent’s evidence-in-chief and Exhibit 8, the respondent’s evidence is that:
(a)She borrowed $30,000 from ANZ in 2007 to buy a machine;
(b)She borrowed $27,000 from ANZ in 2007 to assist the applicant with his debts at the beginning of the relationship; and
(c)She borrowed $27,000 from ANZ in 2007 which she used for the Suburb N property.
Not all three assertions can be correct. The respondent does not assert that she took out three or even two personal loans from ANZ in 2007, all for approximately the same amount. Her evidence is of one loan in 2007.
The respondent blamed her former solicitors for much of the problem, however, she had different solicitors at final hearing and her evidence did not improve. For whatever reason, neither of the respondent’s solicitors seem to have taken any care in ensuring that the evidence which was filed on behalf of the respondent was drafted with any care or thought to the respondent’s case theory, or that the annexures necessarily supported the assertions made in the body of the affidavits.
The respondent’s Outline of Case Document filed 1 February 2024, was of little assistance to the Court. It was in parts non-sensical, for example seeking an 80/20 adjustment in the respondent’s favour based on contributions, then arguing that the respondent’s future needs are greater and seeking an adjustment of 70/30 in the respondent’s favour in that regard, and an overall adjustment of 70/30 in the respondent's favour. It is a document that has been poorly drafted and ought not have been filed as is. Greater care and effort is expected by the Court of legal practitioners.
The many discrepancies in the respondent’s evidence have not been explained by the respondent nor by her Counsel in closing submissions. It is for the respondent to prove her case by telling the truth and by supporting her case with corroborating evidence where available, particularly where matters are in contention. Had she taken care with being truthful and precise in her evidence, the respondent could have explained all of the relevant matters clearly in her affidavit. She has not done so. This resulted in lengthy and detailed cross-examination of her.
Furthermore, it is not for the Court to trawl through the evidence in an attempt to analyse the assertions in the respondent’s affidavits and to check them against primary documents.
Lastly, having observed the respondent in the witness box for a period of almost two days, it is clear to the Court that the respondent is indignant at having her word tested during cross-examination. The respondent was observed by the Court to be oppositional and argumentative, she chose not to answer questions even after being directed by the Court to do so, and she failed to provide corroborating evidence in support of contentions matters where such evidence would have been within her capacity and ability to obtain. The respondent did herself and her case a great disservice in the way she conducted herself during cross-examination and throughout the proceedings.
The respondent has had more than ample opportunity to put before the Court evidence relevant and supportive of her case. Her lack of care in the preparation of her case is staggering. She has displayed a similar lack of care in ensuring that the companies she is a director of have complied with their obligations to lodge taxation returns. It all seems a bit too hard for the respondent to be bothered with. Yet, she maintains that she should be believed and that the applicant is the one who has put lies before the Court.
While the Court would prefer to take the view that the respondent is simply careless in her evidence and preparation of case, the carelessness is so gross, that it amounts to wanton carelessness, and even deliberate obfuscation.
Where the evidence of the applicant and the respondent are in conflict, the Court has preferred the evidence of the applicant.
The Respondent’s Conduct and Compliance with Obligations during Proceedings
Throughout the proceedings, the respondent has time and time again been in default of Court orders and her obligations under the Court Rules:
(a)She failed to file and serve a Response and Affidavit in accordance with Court Rules after being served with the Initiating Application;
(b)She failed to comply with Court Orders of 1 August 2022; and
(c)She failed to comply with Court Orders of 24 November 2022.
Such recalcitrant conduct had resulted in the proceedings initially being listed for final hearing on an undefended basis against the respondent. The respondent has already been the subject of adverse costs orders.
DETERMINATION
The Pool
In Stanford, the High Court emphasised as fundamental that a consideration of whether it is just and equitable to make a property settlement order begins by ‘identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property’.[17]
[17] Stanford at [37]; Trevi & Trevi [2018] FamCAFC 173 at [46].
The parties in their evidence refer to several vehicles, including Motor Vehicle 1, Motor Vehicle 2, Motor Vehicle 3, and Motor Vehicle 4. However, by the conclusion of the hearing, it became clear that the vehicles have either been disposed of and/or not valued, and by agreement they do not form part of the pool as assessed.
At final hearing, the pool consisted of the following:
Ownership Description Value Respondent Suburb C Property $2,000,050 Respondent Mortgage over Suburb C Property ($811,000) Applicant Super Fund 1 $92,000 Respondent Super Fund 1 $120,294 TOTAL: $1,401,344 Assessment of Contributions
Assessment of contributions is not an arithmetic or precise exercise. It is an overall assessment taking into consideration the facts as found.
The parties were together for a long time, the relationship lasted some 18 years. During that period, they bought and sold properties in the respondent’s name, they both worked, including in various family businesses, they both contributed financially, they raised two children together, they kept a house together and, like many couples who separate and come before this Court, things between them were not always very good and their relationship was marred by disagreement and distrust.
The respondent was the primary homemaker and parent, and as such her contributions in this regard were greater.
The applicant through his skills as a tradesperson and through his many years in the industry, was able to contribute in ways the respondent could not. Even though the respondent is a tradesperson by trade, her level of experience and skill is nowhere near that of the applicant, nor is her knowledge and connection within the industry. It was on balance, mostly as a result of the applicant’s physical labour, work, and connections that the parties were able to build the large home and outbuildings on the Suburb C Property. While the respondent was involved, if one is to weigh up the contributions in this regard, the applicant’s were greater.
The respondent brought into the relationship slightly more in capital value than the applicant.
The parties’ living in the applicant’s father’s home rent free was a contribution on behalf of the applicant, as was the loan which was made to the applicant by his father which was used for the purposes of setting up M Pty Ltd. The operation of that business resulted in the parties netting almost $400,000 when the business was sold, a short three years after it had been incorporated. By that stage, the inheritance received by the applicant of his father’s home resulted in a significant debt reduction for the parties, that is the debt to the applicant’s father was repaid. Through these contributions by and on behalf of the applicant, the parties were some $400,000 better off.
While the Court accepts that both the applicant and the respondent were involved in the running of M Pty Ltd, the Court does not accept the respondent’s evidence that it was her skills only which made this business into a success. Credit must be given to the applicant, who had many years of experience and knowledge in the trades industry which was utilised in this business.
Similar observations and conclusions are reached in respect of the businesses run by D Pty Ltd and E Pty Ltd. The contributions by the applicant in this regard were significant.
The use by the respondent of the moneys from the offset account post separation is a contribution by both parties towards the mortgage of the Suburb C Property and towards the children’s and the respondent’s living expenses. She has not only had the benefit of occupying the parties’ former home, she has also had the benefit of the applicant making financial contributions through her use of those funds and her continued operation of the business which was established during the parties’ relationship.
The respondent has, however, had the sole care of the parties’ children post separation, and she has had the sole burden of maintenance and upkeep of the Suburb C Property.
Overall, the Court assesses the contributions over the 18 years of the parties’ relationship and post separation as 52/48 in the applicant’s favour.
In respect of ‘future needs’ there is to be a small adjustment of 3% in favour of the respondent given her ongoing care of the children.
Conclusion as to Overall Adjustment
Based on the findings made as to contributions and future needs, the Court has assessed that there should be an adjustment of 49% in favour of the applicant and an adjustment of 51% in favour of the respondent. If such orders are made, the applicant will receive assets to the value of $686,659 and the respondent $714,685.
The respondent has a greater superannuation balance even though she is some 13 years younger than the applicant. She will reach retirement age much later than the applicant. It is therefore appropriate that there be a superannuation splitting order in line with the respondent’s application, that is that the applicant receive a significant adjustment in terms of the parties’ overall superannuation.
As such, the applicant will receive:
Ownership Description Value Respondent Payment from Respondent $494,659 Applicant Super Fund 1 $92,000 Respondent Super Fund 1 $100,000 TOTAL: $686,659
As such, the respondent will receive:
Ownership Description Value Respondent Suburb C Property $2,000,050 Respondent Super Fund 1 $20,294 Respondent Mortgage over Suburb C Property ($811,000) Respondent Payment to Applicant ($494,659) TOTAL: $714,685
The respondent wants to retain the Suburb C Property and she will at first instance be given the opportunity to do so. This will be dependent upon her obtaining requisite borrowings to pay the applicant the amount under these orders. If she is unable to do so, the Suburb C Property will be sold, and the proceeds of sale divided between the applicant and respondent to give effect to the overall adjustment as determined.
The payment by the respondent to the applicant of some $494,659 will be a significant capital injection for him and will allow him the opportunity of investing that money in any way he deems appropriate.
If the applicant is able to obtain moneys to pay the respondent out, she will remain living at the property where she and the children currently live and where they have lived for many years, including post separation.
In all of the circumstances, the result is just and equitable.
For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.
I certify that the preceding one hundred and sixty-five (165) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 5 June 2024
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