Ungur & Inaba
[2021] FedCFamC2F 65
•17 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ungur & Inaba [2021] FedCFamC2F 65
File number(s): SYC 1757 of 2019 Judgment of: JUDGE MORLEY Date of judgment: 17 September 2021 Catchwords: FAMILY LAW – property – application for property orders pursuant to section 79 of the Family Law Act 1975 (Cth) – where both parties seek property adjustment orders – where Court finds it is just and equitable to make an order pursuant to section 79 – Court makes adjustment pursuant to section 79(4)
FAMILY LAW – property – addbacks – asserted addbacks for funds spent by Applicant from redundancy payment – asserted addbacks for funds spent by Respondent in drawing down mortgage and offset accounts – asserted addbacks for legal fees – Court accepts addbacks for Applicant’s redundancy payment and legal fees only
Legislation: Evidence Act 1995 (Cth), s 50
Family Law Act 1975 (Cth), ss 75, 79, 79A, 117, 117B
Cases cited: AJO v GRO (2005) 191 FLR 317
Bevan & Bevan (2013) 279 FLR 1
Dickons & Dickons [2012] FamCAFC 154
Fields & Smith [2015] FamCAFC 57
Fontana & Fontana [2018] FamCAFC 63
Grier & Malphas (2017) 55 Fam LR 107
Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395
In the Marriage of Harris (1991) 104 FLR 458
Jabour & Jabour [2019] FamCAFC 78
Keskin & Keskin and Anor [2019] FamCAFC 236
Masoud & Masoud [2016] FamCAFC 24
Shan & Prasad [2018] FamCAFC 12
Stanford & Stanford (2012) 247 CLR 108
Talbot & Talbot [2015] FamCAFC 132
Toft & Royce [2013] FamCA 372
Trevi & Trevi [2018] FamCAFC 173
Vass & Vass [2015] FamCAFC 51
Watson & Ling [2013] FamCA 57Division: Division 2 Family Law Number of paragraphs: 250 Date of last submissions: 5 June 2020 Date of hearing: 7 and 8 May 2020 and 5 June 2020 Place: Sydney Counsel for the Applicant Mr Blackah Solicitor for the Applicant Marsdens Law Group Counsel for the Respondent Dr Sayers Solicitor for the Respondent Cornerstone Law Offices ORDERS
SYC 1757 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN:
MR UNGUR
Applicant
AND: MS INABA
Respondent
ORDER MADE BY:
JUDGE MORLEY
DATE OF ORDER:
17 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.That pursuant to section 79 of the Family Law Act 1975 (Cth):
(a)That within two months of the date of this order the wife pay to the husband the sum of $118,245.50.
(b)That in the event that the wife does not pay to the husband the sum referred to in paragraph (a) herein within two months from the date of this order then the wife shall sign all documents and instruments and do all things necessary to list for sale the property at B Road, Suburb C in the State of Queensland (“the property”) at a listing price agreed upon between the parties, with a real estate agent agreed upon between them and shall proceed to a sale of the property at a sale price agreed upon between them and following such sale the proceeds of sale shall be applied as follows:-
(i)In adjustment of rates on settlement;
(ii)In payment of agent’s commission (if any) on sale;
(iii)In payment of legal and all other proper costs of sale;
(iv)In an amount required to discharge the mortgage registered on title;
(v)In division of the balance of the proceeds of sale between the parties in such manner in such division the wife has received 75% of the matrimonial asset pool (not including superannuation) and the husband has received 25% of the matrimonial asset pool (not including superannuation) on the basis that prior to such division of the balance of the proceeds of sale the husband has $50,585 and the wife has $107,008.
(c)That in the event that order 1(b) operates and the property does not sell by private sale within five months from the date of this order then the wife shall sign all documents and instruments and do all things necessary to list the property for sale by public auction with an auction agent agreed upon between the parties, at a reserve price agreed upon between them and shall proceed to a sale at a sale price agreed upon between them and the parties shall be responsible for all costs and expenses of the auction payable prior to the auction sale in the proportion 75% by the wife and 25% by the husband and following such sale the proceeds of sale be applied as provided in order 1(b) hereof.
(d)That in the event that order 1(c) operates and the property does not sell by public auction in accordance with order 1(c) then the property shall be resubmitted for sale by private treaty in accordance with the provisions of order 1(b) and the property shall be resubmitted for sale by public auction at six (6) monthly intervals from the last public auction and be resubmitted for sale by private treaty between such auctions, until the property shall be sold and upon such sale either by public auction or private treaty the proceeds of sale shall be applied as provided in order 1(b).
(e)That in the event that the parties are unable to reach agreement in relation to an auction agent or a real estate agent then the parties shall and do hereby appoint the President for the time being of the Real Estate Institute of Queensland or his or her nominee to determine such disputed matter or matters and the parties shall thereafter act in accordance with that determination and the parties shall be responsible for the costs and expenses of the President or his or her nominee in making such determination in the proportion 75% by the wife and 25% by the husband.
(f)That in the event that the parties are unable to reach agreement in relation to a listing price, a reserve price or a sale price whether for a sale by public auction or by private treaty then the parties shall and do hereby appoint the President for the time being of the Australian Property Institute Queensland Branch or his or her nominee to determine such disputed matter or matters and the parties shall be responsible for the costs and expenses of the President or his nominee in making such determination in the proportion 75% by the wife and 25% by the husband.
(g)That the Court allocates, pursuant to section 90XT(4) of the Family Law Act 1975 (Cth) a base amount of $11,787 to the Husband, Mr Ungur, out of the interest of the Wife, Ms Inaba, in the Employer C Superannuation Plan Number… in the Employer C Master Trust (“the fund”).
(h)That, pursuant to section 90XT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the superannuation interest of the Wife in the fund, the Husband will be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using the base amount of $11,787 and that there will be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this order.
(i)That orders 1(g) and 1(h) bind the Trustee of the fund, Company C Limited, and take effect from the operative time being the fourth business day after the date of service of this order on the Trustee.
(j)That the husband is the sole owner in law and in equity as between himself and the wife of all personal property and financial assets currently in his power, possession, or control other than as specifically dealt with elsewhere in this order and including, but not limited to, the motor vehicle 1, the credit balance of his Bank D Account number ..59, and the notional addback of the sum of $42,000 of the moneys paid by him towards his legal fees for these proceedings.
(k)That the wife is the sole owner in law and in equity as between herself and the husband of all real property, personal property and financial assets currently in her power, possession or control other than as specifically dealt with elsewhere in this order and including, but not limited to, the motor vehicle 2, her shareholdings in Company E, Company C, Company F, and Company G, the credit balance in her Bank H Account number ..50, the furniture and household contents in her possession, and the notional addback of the sum of $15,000 of the moneys paid by her towards her legal fees for these proceedings.
2.That in the event that either party refuses or neglects to comply with any part of this order in relation to the execution of any deed, instrument or document, the Court appoints and authorises the Registrars of the Court to execute such deed, instrument or document in the name of the party who so refuses or neglects and further appoints those Registrars to do all acts and things necessary to give validity and operation to the deed, instrument or document.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Ungur & Inaba has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY
INTRODUCTION
These are property settlement proceedings between the Applicant husband, Mr Ungur (“the husband”) and the Respondent wife, Ms Inaba (“the wife”). The matter went to a final hearing that took place on 7 and 8 May 2020, with submissions on 5 June 2020. The Applicant was represented by Mr Blackah of counsel and the Respondent by Dr Sayers of Counsel. The parties’ commenced cohabitation in 2000, married in 2000 and separated in July 2012 under the same roof. The husband left the matrimonial home on 13 October 2017, and the wife and the two children of the marriage continued to reside in the matrimonial home.
There are two children of the marriage, X, born in 2007, 13 years of age at the time of the hearing and Y, born in 2011, 9 years of age at the time of the final hearing.
Both parties seek that the Court find that it is just and equitable to proceed with the making of orders pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”) and for orders to be made adjusting the property between the parties.
A number of issues arose in the matter in relation to the identification of the matrimonial asset pool and the existing legal and equitable interests of the parties in the property according to the ordinary common law and equitable principles and under any relevant legislation. Certain of those issues relate to assertions by each party that certain “property” should be added back to the matrimonial asset pool.
There are also a certain number of competing contentions between the parties in relation to contributions by the parties at the commencement of cohabitation, during the period of cohabitation and following separation.
MATERIALS RELIED UPON BY THE PARTIES
The husband relied upon the following material:
(a)An outline of case document prepared by his counsel, Mr Blackah;
(b)The husband’s proposed minute of order – exhibit A6;
(c)The Initiating Application filed 20 March 2019;
(d)The husband’s affidavit sworn 1 April 2020;
(e)The husband’s financial statement sworn 1 April 2020;
(f)The affidavit of Miss L sworn or affirmed 27 March 2020; and
(g)The affidavit of Mr J affirmed 27 March 2020.
The husband also relied upon the following exhibits:
(a)Exhibit A1: a document entitled “Mr Ungur child support payments”;
(b)Exhibit A2: page 171 of the husband’s tender bundle being a tabulation of expenditure by the wife on legal fees from 22 November 2017 until 10 June 2019 to three named firms of solicitors from both an Bank N credit card and a Bank P account , to a total of $43,103.05;
(c)Exhibit A3: the husbands cost notification table;
(d)Exhibit A4: the respondent wife’s cost notification table;
(e)Exhibit A5: proof of balance report for Mr Ungur prepared by Bank D for account number ending ..59 at 7 May 2020; and
(f)Exhibit A6: the husband’s proposed minute of order (referred to above).
The wife relied upon the following material
(a)Outline of case document prepared by her solicitors;
(b)Amended response to initiating application filed 7 May 2020;
(c)The wife’s affidavit sworn or affirmed 3 April 2020;
(d)The wife’s financial statement sworn or affirmed 17 April 2020;
(e)The affidavit Ms M Inaba sworn or affirmed 3 April 2020; and
(f)A list of documents filed 6 May 2020.
The wife’s affidavit of 3 April 2020 made reference to a number of annexures, the annexures contained in a series of four spring binder folders and running to 1345 pages.
Dr Sayers cross-examined the husband and the husband’s witness, Ms L. Mr J was not required by Dr Sayers for cross-examination.
The wife was cross-examined by Mr Blackah. The wife’s mother, Ms M Inaba was not required for cross-examination by Mr Blackah.
On 5 June 2020, submissions were made by Mr Blackah on behalf of the husband, Dr Sayers on behalf of the wife, with a short reply by Mr Blackah.
On 5 June 2020, a joint balance sheet was provided to me by way of ‘aide-memoire’, setting out the parties’ competing contentions in relation to values in relation to the assets, liabilities and superannuation entitlements of the parties and in relation to the parties’ competing arguments in relation to asserted addbacks. I have utilised that joint balance sheet both in relation to the submissions made on 5 June 2020 and in preparation of these reasons.
THE PROCEEDINGS
The proceedings were commenced on 20 March 2019 with the filing of the husband’s initiating application, with a first return date of 15 May 2019. At the request of the parties’, a Chambers order was made by consent on 10 May 2019 for the wife to file her response and supporting documents within 21 days; in relation to establishing the value of the former matrimonial home property at B Road, Suburb C, in the State of Queensland; in relation to disclosure between the parties; for the parties to attend a Conciliation Conference on 14 June 2019 with a registrar; and adjourning the proceedings for mention on 21 June 2019.
The Conciliation Conference on 14 June 2019 was unsuccessful, and the matter did not settle.
On 21 June 2019, the matter was adjourned for a Call Over for the allocation of final hearing dates on 26 September 2019. On that date, the matter was set down for a final hearing on 7 and 8 May 2020 and trial directions were made. At a further Call Over on 25 March 2020, consequent upon the commencement of the COVID-19 pandemic emergency, the hearing dates for 7 and 8 May 2020 were confirmed with the matter to proceed on final hearing by Microsoft Teams link.
The matter did proceed to final hearing on 7 and 8 May 2020 by Microsoft Teams link. On 5 June 2020, submissions to conclude the final hearing were also conducted by Microsoft Teams link by all parties. On 5 June 2020, judgment was reserved.
I apologise to the parties for the delay between 5 June 2020 and the date of orders consequent upon these reasons.
THE COMPETING CLAIMS OF THE PARTIES
The husband sought final orders as set out in his proposed minute of order, which became exhibit A6, as modified during Mr Blackah’s submissions on behalf of the husband, in relation to the amount the husband sought from the wife by way of a settlement payment. The orders sought by the husband were, in summary form, as follows:
(a)That within 42 days of orders the wife pay to the husband the sum of $275,206.
(b)That the husband retain as his sole property as between himself and the wife, Motor vehicle 1; the husband’s R superannuation fund; all personal property in the husband’s power, possession or control, including any shareholdings; and any life insurance policies.
(c)That the wife retain as her sole property as between herself and the husband, the real property at B Road, Suburb C in the State of Queensland and that the wife be solely responsible as between the parties for payment of the loan with the Bank P secured by way of mortgage on that property; the wife’s Company C superannuation, subject to splitting orders sought by the husband; the motor vehicle 2; all of the wife’s personal property in her power, possession or control including all shareholdings; and all life insurance policies.
(d)That if the wife failed to pay the husband the amount set out in order 1, she proceed to a sale of the Suburb C property, with the husband to be paid the sum of $275,206 together with any interest payable pursuant to section 117B of the Act, with the remainder of net proceeds of sale to be paid to the wife.
(e)That within 14 days of orders, the parties do all things necessary to close their joint account with Bank P and invest those funds for the benefit of their children, X and Y, in bonds otherwise agreed between them with each child to take upon reaching 18 years of age.
(f)That a superannuation splitting order be made on the wife’s Employer C superannuation plan of the Employer C Trust account … in a base amount of $47,000 to the benefit of the husband.
(g)That otherwise each party retain whatever property is in their power, possession or control.
(h)That the wife pay the husband’s costs of the proceedings.
During submissions, Mr Blackah indicated that the orders the husband proposed provided for a division of the matrimonial asset pool, not including superannuation entitlements, as to 60 per cent to the wife and 40 per cent to the husband, with the superannuation entitlement to be dealt with in a separate pool and divided equally between the parties.
The wife sought orders summarised as follows:
(a)That the parties’ joint Bank P account ending in ..36, be held upon trust for their children by splitting the credit balance equally between the children and investing each share in 10 year insurance bonds.
(b)That the husband retain as his sole property, as between himself and the wife, motor vehicle 1, any bank account in the husband’s name or jointly with any other person, his ‘ancestral property’ at S Road, Suburb T, India, such household contents and furniture as he has and the whole of his entitlement to benefits under his membership in the R Superannuation Fund.
(c)That the wife retain the as her sole property as between herself and the husband the real property at B Road, Suburb C in the State of Queensland, the motor vehicle 2, her 394 shares in Company C, her 1461 shares in Company F, her 731 shares in Company G, her 1417 shares in Company E, her household contents and furniture and her entitlement to superannuation benefits in the Employer C superannuation plan of the Employer account ….
(d)That there be an adjustment in relation to the net matrimonial asset pool (not including the joint Bank P account to be held upon trust for each of the children) such that the husband receives 20 per cent thereof and the wife receives 80 per cent thereof. Such adjustment to be achieved by, if payment is to be made by the wife to the husband, the wife paying one-half of the adjustment amount to the husband and the husband receiving a superannuation split from the wife’s superannuation fund with the base amount being one-half of the adjustment amount, or if the adjustment is to be made by payment from the husband to the wife, the husband making a payment of half the adjustment amount to the wife and a superannuation splitting order being made in the husband’s R superannuation fund in favour of the wife, for the other half of the adjustment amount.
In submissions, Dr Sayers submitted on behalf of the wife that the joint balance sheet, as provided to the Court as an aide-memoire on that day, reflected on the wife’s values and arguments, a circumstance where if each party retained the assets in their power, possession or control, and each retained their own superannuation entitlements, with the addback arguments being determined as asserted by the wife, she would have 76.66 per cent of the matrimonial pool if she retained sole responsibility as between the parties for the single liability, the loan account secured on the Suburb C property.
Accordingly, she sought orders providing that each party retain what they have without payment of any adjustment, subject only to the orders sought by wife, with a similar order sought by the husband, in relation to the proceeds of their joint Bank P account being withdrawn, divided into two equal shares and applied upon trust by investment in bonds until each child attains the age of 18 years.
On that basis, as Dr Sayers submitted, the wife was not seeking that the Court find that it was not just an equitable to proceed with making orders under section 79 for adjustment of property between the parties, but was seeking that an adjustment order be made, so as to establish the trust for the children, and that otherwise an order be made that each party retain what they have, with the wife to be solely responsible for the Bank P loan account.
Accordingly, and leaving out the joint Bank P account to be applied for the benefit of the children, the wife sought a division on a single pool basis as to 76.6 per cent to herself, and 23.4 percent to the husband.
BACKGROUND
The husband was born in 1970 in India and was 49 years of age at the time of hearing. The husband came to Australia on a student visa in 1999.
The wife was born in 1970 in Country FF and was also 49 years of age at the time of hearing. The wife came to Australia in 1987, and has been a permanent resident in Australia since 1988.
The parties met in Sydney in 1999 and commenced cohabitation in late 1999 or early 2000. The wife says that in 2000 the husband moved into her rental property at Suburb D and that at the commencement of their cohabitation she was making all payments for their living expenses, including rent on the Suburb D property, as she was working full time and the husband was still a student with a maximum of 20 hours paid work per week.
Between October and December 2000, the wife sponsored the husband’s permanent resident visa to enable him to stay in Australia and paid a sum of $4840 to a migration agent for that purpose. The parties married in 2000, in Sydney.
There are two children of the parties’ marriage, X born in 2007, aged 13 years at the time of the hearing and Y, born in 2011, nine years of age at the time of the hearing. Both children attend K College in Brisbane, Queensland.
The parties separated under the same roof on 12 July 2012 and remained separated under the same roof until the husband left the home on 13 October 2017 to take up employment in Sydney. The matrimonial home at the time of the parties’ separation was at B Road, Suburb C in the State of Queensland (‘the B Road property’), a property that was owned by the wife as between herself and the husband prior to the commencement of their cohabitation.
When the husband moved out of the matrimonial home in October 2017, the children, X and Y, remained living with the wife in the matrimonial home and spent occasional time, though not overnight, with the husband in Queensland during school holidays and on some weekends as arranged and agreed between the parties from time to time. There are no parenting orders between the parties.
Following the husband moving out of the B Road property on 13 October 2017, he moved to Sydney in relation to his employment, returning to live in Queensland from 30 September 2019 until 6 March 2020. Again, that move in returning to Queensland was in relation to his employment. On 6 March 2020, the husband returned to live in Sydney, where he has remained living at U Road, Suburb E.
At the commencement of the parties’ cohabitation, the parties’ opened a joint account into which both of their employment earnings were paid and from which they paid their living expenses. The wife deposes that the joint account was opened in 2001 as a Bank P, O Account with an account number ending ..04.
At the commencement of cohabitation, the husband did not have any assets of any value and he had a Bank Q credit card. The wife asserts that at the commencement of cohabitation, the husband’s credit card had a debit balance of approximately $1800 which she paid off. During cross-examination, the husband was asked if he had a credit card debt of $1800 at the commencement of cohabitation and he answered, “Yes”, but when it was put to him that such debt was paid out by the wife, he answered, “No”.
In evidence is a copy of a statement for the husband’s Bank Q credit card account for the period 9 November 1999 to 9 December 1999 and such statement shows a deposit of $1800 being made into the account on 3 December 1999, so as to put that account in credit in an amount of $1908.86 as at 9 March 1999, and still having a credit balance in the sum of $109.94 as at 9 November 1999. That document is annexure 19 to the wife’s affidavit.
At the commencement of cohabitation, the wife was the sole owner in law and in equity of the former matrimonial property at B Road. The wife had purchased that property in 1992 for $65,000, the whole of that sum being provided to her for the purpose of purchase by her father. In around October 1994, the wife had the home built on the property at a cost of $108,750, and the wife funded this build with borrowed funds in the sum of $115,000 from Bank H, and the home was finished in 1995. The wife’s father provided an additional sum of $26,000 to fund the building of a driveway, patio, and completion of landscaping and other fittings to the B Road property for the wife’s benefit.[1]
[1] Affidavit of Ms M Inaba, paragraph 7.
The B Road property was leased by the wife to tenants in 1996 at a weekly rental of $420, until the property was occupied by the husband and wife in 2007 as their matrimonial home.
It was an agreed fact that in 2000 the B Road property was valued at $210,000. At 2000, the wife owed Bank H $92,398.99 in relation to the loan accounts secured by way of mortgage on the property. During cross-examination, the husband conceded that this was correct.
In addition to the wife’s father’s financial contributions to the former matrimonial property, he made significant non-financial contributions by overseeing the completion of the property and sourcing all of the vendors and engaging with the builders on all aspects of the construction of the home. The wife’s mother and brother also contributed by painting the fences and sourcing and planting trees and plants around the property that were still found at the property at the time of the hearing.
The B Road property was not negatively geared for the period from its tenancy on 6 March 1995 until it was occupied by the parties as their matrimonial home in March 2007. The rental income covered all costs with a small surplus over to add to the parties’ household income, and in relation to which the wife paid income tax.
As well as the B Road property, at the commencement of cohabitation, the wife was the sole owner as between herself and the husband of:
(a)330 Company V shares with a value of approximately $9112;
(b)100 Company C shares with value of approximately $661;
(c)2000 Company W shares with a value of approximately $3000, Company W shares being converted in 2002 to 2400 shares in consequence of a company merger; and
(d)1099 Company E shares valued at approximately $9495.
The approximate total value of the shareholding by the wife is $22,138.
In cross-examination, the husband agreed that at the commencement of cohabitation the wife owned $22,000 worth of shares, and he also agreed that at the commencement of cohabitation, the wife had superannuation entitlements with a value of $27,000, the wife’s figure in her evidence being $27,069.43 as at 2003.
At the commencement of cohabitation, the wife was a Senior finance professional with Company H, and in the period between commencement of cohabitation and the parties’ move to Queensland in January 2007, the wife held employment with various organisations in Sydney including Company J, Company K and Company L.
The wife took maternity leave after the birth of X, just after the parties moved from Sydney to live in the B Road property in Brisbane. In 2008, at the end of her maternity leave, the wife took up employment with Company C in Brisbane as a finance professional. X began attending day care in 2008.
In 2009, the wife was made redundant from her employment with Company C due to a restructure and she received a sum of $29,286.73 redundancy payment, net after tax, which was applied by the parties toward payment of living expenses and costs of some renovation to the B Road property, the sum having been deposited by the wife into the parties’ joint account when she received the moneys.
In 2009, the wife commenced contract work with Company M. She left that employment in 2011 for the impending birth of the parties’ second child, Y, taking 12 months maternity leave from work.
In 2012, the wife took up employment with Company S and then in 2012, she took up employment with Company T. From October 2012 until February 2013, the wife was out of work and then in February 2013, she took up some employment on a “short-term contract”, and then she took up full-time work in June 2013 with Company U. In 2014, the wife returned to employment with Company C and remained in that employment at the time of the hearing.
The wife’s income at the time of the hearing was $121,000 gross from that employment.
At the commencement of cohabitation, the husband was a student and he had part-time work to a maximum of 20 hours a week, in compliance with his student visa, as a transport worker. In his affidavit evidence, the husband asserted that in 2002 he was employed as a professional by Company Y, but in the wife’s affidavit she asserted that the husband’s employment with Company Y as a professional commenced in 2004. During the husband’s cross-examination, it was put to him by Dr Sayers that he completed his qualifications in 2004, with which the husband agreed, and that he started his employment in 2004, with which the husband also agreed, at a salary of between $26,000 and $30,000 per year.
The wife asserts that she paid a sum of $10,000 from her employment earnings in 2003 to Company Z to enable the husband to obtain qualifications that subsequently enabled him to gain the employment with Company Y and others.
In cross-examination, the husband agreed with that evidence, and on it being put to him by Dr Sayers that he had not repaid the wife for that expense, he again agreed.
In 2009, the husband moved to employment with Company BB in Queensland and on 30 October 2017, he was transferred in his employment with Company BB to Sydney, prompting his leaving of the matrimonial home in 2017. In 2019, the husband was made redundant from Company BB.
In paragraph 53 of the wife’s affidavit, she sets out a table of the parties’ “taxable income” for each of the years from 2001 to 2012, grounding the information in the table on documents annexed to her affidavit and referred to in paragraphs 54 to 59 inclusive. During cross-examination by Dr Sayers, the husband was referred to paragraph 53 of the wife’s affidavit and when asked if the wife’s figures therein were correct he responded, “Yes”.
In 2001, the parties jointly purchased real property at C Road, Suburb E in New South Wales (‘Suburb E property’) for a purchase price of $290,000. The parties funded the purchase by obtaining a loan in the sum of $300,000 from Bank P and securing that loan on both the Suburb E property and the B Road property. At the time of the purchase, the husband stated on the loan application that he had nil income, being a full-time student. The application reflected that the wife was in receipt of $3944 per month net wage, and $1200 per month rental income.
The parties lived in the Suburb E property from the time of purchase until it was sold in 2006 for $330,655.26 (after adjustment of rates and other matters on settlement), from which they repaid the balance owing on the Bank P loan in the sum of $277,824.02, and received a sum of $50,891.84 as the net proceeds of sale deposited to their joint account. Following the sale of the property, the parties moved from Sydney to Queensland, and took up occupation of the B Road property after staying with the wife’s parents for one month, on the husband’s evidence, or for three months, on the wife’s evidence and confirmed by the evidence of her mother, until the tenants vacated the B Road property.
The parties expended about $10,000 from the proceeds of sale of Suburb E property to fund their move from Sydney to Queensland.
When the parties occupied the B Road property in late March 2007 there was a sum of $72,000 owing on the loan account secured by way of mortgage on that property, which by October 2010 had been reduced to $47,000.
In around 2001, the parties purchased a motor vehicle 2 on 100 per cent finance. The husband, in his affidavit, says that the vehicle was sold by the wife after October 2017 and funds applied to purchase by her of motor vehicle 3. The wife gives evidence that she traded in the vehicle in March 2018 for a trade-in value of $1500 on purchase of motor vehicle 3 for $26,496, the balance of that purchase being financed by a redraw on the loan account secured by mortgage on the B Road property in the sum of $25,000. The latter vehicle was retained by the wife at the time of the hearing.
In 2009, the parties purchased motor vehicle 1 for the husband’s use, that vehicle being retained by him up until the time of the final hearing. The initial purchase was funded by way of a novated lease from Company C where the wife was then employed. When the wife was informed in 2009 that she would be made redundant in 2009, the novated lease was transferred to Company EE and then on 25 August 2014 (the parties having separated in July 2012) the wife redrew a sum of $26,299.36 from the Bank P loan account secured on the B Road property (account ..06) and paid out the remainder of the finance on motor vehicle 1, which by that time was with Bank D.
Following the parties’ separation in July 2012 under the same roof, the husband opened his own Bank P account ..24, and had his wages from his employment with Company BB paid into that account through to December 2017 when he left the matrimonial home. The husband closed that account on 16 February 2018. From the parties’ separation in 2012 until September 2017, the husband transferred an amount of $4000 per month into the parties’ joint Bank P account ..04 as his contribution toward the totality of the household living expenses. The wife’s evidence is that the husband commenced this regime of transferring an amount of $4000 a month to the joint account in October 2010, and confirmed that same continued through to September 2017.
The husband gives evidence that in about 2006, he painted the interior and the fencing of the B Road property and removed carpets from the property. The wife says that the painting was conducted in 2008 and that both the husband and the wife contributed equally to the painting of the interior of the Suburb C property.
From six months of age, each of the parties’ children was in day care five days per week and on occasions the maternal grandmother assisted the parties with childcare. The husband’s evidence is that the parties shared all of the care of the children outside time when they were either in day care or being cared by the maternal grandmother, and that they shared the duties of transporting the children for day care, school and sport. The husband asserts that the wife prepared the children’s lunches but that they shared the general family cooking duties. He says that the regime of sharing care of the children on a day-to-day basis continued post separation and whilst they were under the same roof, up until 13 October 2017.
For her part, the wife asserts that she was the primary carer for the children from the time of their birth, having taken 12 months of maternity leave following the birth of each child. She says that from 2012 she would drop the children to day care and school and the husband would collect them. She asserts that the husband was often away interstate for work, and worked often on weekends and late at nights during weekdays. She further asserts that she was primarily responsible for the homemaker role inside the home and the husband was primarily responsible for that role outside of the home in relation to yard maintenance and so forth. The wife has, on all of the evidence, been solely responsible for the care of the children since the husband vacated the matrimonial home and moved to Sydney on 13 October 2017. The husband paid no child support to the wife until January 2018 when child support payments commenced by agreement between the parties.
The wife’s mother gives evidence in her trial affidavit that in January 2008, the child, X, commenced day care four days a week and that on the other day, Wednesdays, she cared for X while the parties were at work. She says this arrangement was in place until X started school in 2012. She also gives evidence of providing afternoon tea to the husband each weekday from January 2008 until October 2017, cooking meals for the parties two or three times a week and providing the husband with breakfast on weekends until October 2017. She says that Y commenced day care four days a week in 2012, and that she cared for Y on Wednesdays. She further says that she cared for both of the children after school by picking them up from after-school-care at 4pm and bringing them back to her home, and caring for them until the parties finished work and collected them.
The wife’s mother also gives evidence that from 19 March to 6 April 2017, the wife went to India for work for three weeks, during which time the children were meant to stay at home with their father, but on the day the wife left, the husband brought the children over to her place and they stayed in her care for the entire three weeks with their father coming to see them in the evening and having his evening meal at her home.
Following the husband leaving the B Road property in October 2017 to move to Sydney, the wife’s mother began providing increased assistance to the wife by caring for the children on the three days a week that the wife worked in the city rather than working from home. That evidence by the wife’s mother in her trial affidavit was put to the husband in cross-examination by Dr Sayers, and the husband agreed with that evidence, although he did not agree that they spent the whole of three weeks that the wife was in India with their grandmother.
One area of particular difference in the evidence of the parties is in relation to the landscaping and renovation of the backyard of the B Road property, and in particular, the erection of a Bali hut at the property. The husband asserts that the renovation work was conducted in 2008 or 2009, and that he undertook the work relating to the landscaping and erection of the Bali hut with the assistance of Mr J who was paid a sum of “over $4000” by the parties.
The wife’s version is that the renovation of the backyard of the B Road property occurred between January and 2010, and that all of the material and work was paid for from the wife’s redundancy payment from Company C received by her in 2009, that the Bali hut was purchased from those moneys at a cost of $7070, and that Mr J was paid $4000 from the parties’ joint account to erect the Bali hut and undertake landscaping work. The wife asserted that the husband did not contribute to the renovations and landscape work at all or to the erection of the Bali hut, as in 2010 he took a trip to India, and then in 2010 he underwent elbow surgery that rendered him incapable of assisting.
The husband finds some corroboration from the trial affidavit of Mr J who was not required by Dr Sayers for cross-examination. Mr J asserts that he and the husband attended with a trailer to collect the components of the Bali hut and that he “assisted” the husband to “unload the same”. He says that the husband undertook the “sorting and stacking of the pieces required to construct the hut” unaided by Mr J as Mr J had “a family function I had to attend”. The implication is that Mr J assumes the husband undertook the sorting and stacking of the pieces as he was not present, attending a family function. Mr J says that the husband operated all of the equipment used in the construction as Mr J was disinclined to operate that machinery due to a past experience. Mr J says:
I assisted Mr Ungur [the name Mr J used for the husband] to erect the hut. There were some tasks I was more familiar with than him. He appeared to be more familiar with other tasks. I instructed him and he carried out the necessary work.
Mr J says that the erection of the Bali hut took seven weekends of work with an average 12 hours a day and that he “[does] not recall any days when I was there working and Mr Ungur was not present”.
The husband gives other evidence that whilst living at the B Road property he replaced a sink in the upstairs bathroom, and that when the kitchen and second bathroom at the property were renovated at a cost of $31,541 redrawn from the loan account with Bank P in the wife’s name secured on the B Road property, he then painted the kitchen and both bathrooms. He says that on the day before he left the property, on 12 October 2017, he replaced the dishwasher in the kitchen.
In relation to the renovations of the B Road property in the period of separation under the same roof the wife asserts that she spent a sum of $20,000 from her post-separation earnings and that the husband made no contribution toward the costs of the renovations. It was put to the husband in cross-examination by Dr Sayers that “in 2014 the spent $20,000 on renovating the home and that there was no increase to your payment of $4000 per month”, with which the husband agreed.
The wife disagrees with the husband’s evidence that he took any part in the renovations of the B Road property, though in cross-examination by Mr Blackah for the husband, the wife agreed that the husband did domestic chores in the home and also agreed that the husband replaced the dishwasher in the kitchen with the assistance of Mr J on the day before he vacated the property and that the husband “dumped” the old dishwasher.
The family unit consisting of the husband, the wife and the two children took a number of overseas trips even after the parties had separated and whilst they were under the one roof, including trips in 2014 to Country FF, in 2015 to the United States of America, for a cruise in 2016 and to New Zealand in 2017, as well as some interstate trips and weekends away. The wife paid for the costs of all of those trips other than a contribution made by the husband in the sum of $2000 towards the five-week trip to the United States of America in 2015.
In January 2012 the wife sold 1000 of her Company W shares for $6,620.05 and in March 2012 the wife sold the balance of her Company W shares, 1400 shares, asserting in the text of her trial affidavit at paragraph 97 that she received $6,620.05 for this sale also, but same being an error as annexure 55 to her affidavit shows that she received a sum of $10,150.05 for that sale.
The husband’s mother passed away in 2012 and at that time and for some time thereafter the husband was under the impression that he had inherited 50 per cent of her estate consisting of her home in India. The husband’s evidence is that in 2018, his sister informed him that he had not received any inheritance from his mother but, rather, his mother had left the whole of her estate, including her home in India, to the husband’s sister. The husband annexes to his trial affidavit a copy of his mother’s will together with the translation thereof, the text confirming that the mother had left her estate to her daughter, with no gift to the husband.
The wife for her part points to a statement in a “financial and parental agreement” annexed to the husband’s affidavit in the proceedings of 27 September 2017 relating to their divorce proceedings, which states:
Ms Inaba undertakes not to lay any claim on my family property in India which I have jointly inherited with my sister.
During his cross-examination by Dr Sayers, the husband indicated that:
·His initial belief that he would have inherited half of his mother’s estate was in line with his understanding of the relevant custom rather than the applicable law in India;
·He confirmed that he had consulted a lawyer about his mother’s estate, that he maintained his belief that he had an entitlement under the estate for some years;
·In October 2017 he still held that belief; and
·That he never took any steps in relation to his assumed inheritance because “I was not going to India, my life was here, my kids were here” and that he was disabused of that belief “when my sister showed me my mother’s will… in 2018”.
When asked by Dr Sayers, “Who holds title to your mother’s house in India?” He responded, “My estranged sister”.
The wife’s affidavit at paragraph 153 contains a translation of the husband’s mother’s will obtained by her and it includes the words:
I have a house on S Road, Suburb T, India. I am the sole owner of this property. After I pass away, I would like my house to be given to my daughter Ms F and she should be acknowledged as the owner of this house. Apart from her, no one else should be considered the owner of this house.
During cross-examination the wife confirmed that the translations of the husband’s mother’s will contained in the husband’s affidavit annexure and contained in paragraph 153 of her affidavit “are similar”. The wife in her evidence seeks to raise doubt in relation to the authenticity of the will and to imply that the husband has or may have an interest under his mother’s estate. However, on the basis of all of the evidence available in the matter, I find that the husband has no interest in his late mother’s home in India.
Following the husband leaving the B Road property in October 2017 he moved to Sydney and commenced a de facto relationship with Ms L. The husband asserts the de facto relationship commenced in November 2017, whilst Ms L during her cross-examination by Dr Sayers asserted that the husband moved into her home on 15 January 2018 but that she considered that he was her partner since about October to November 2017. Both the husband and Ms L assert in their evidence that their de facto relationship broke down in September 2019, shortly before the husband returned to Brisbane for his employment from 30 September 2019 to 6 March 2020. On the husband’s return from Brisbane, he again took up residence in Ms L’s home at U Road, Suburb E, and remained living there at the time of the hearing as a tenant or licensee, paying to her a sum of $400 per week in rent.
From January 2018, the husband organised for his wages from his employment to be deposited to Ms L’s Bank D account ..22, an account to which Ms L gave the husband access, also giving him access to her Bank D credit card account ..63.
Around the time that the husband commenced his de facto relationship with Ms L, she made payments from her accounts to reduce several of the husband’s credit card debts. Before detailing that evidence, I should refer to the parties’ evidence in relation to the husband’s gambling.
The husband said in his evidence:
…occasionally I would attend the local casino in Brisbane to gamble or would play online. This occurred on and off during my relationship with Ms Inaba.
He asserted that the funds for his gambling came from his earned income and by drawing on credit cards in his name, with those credit card debts being repaid by the husband and by Ms L after the husband left the B Road property in October 2017. The husband denied that he expended moneys on gambling to the extent asserted by the wife in her evidence. He asserted that most of his gambling debts were incurred after the parties’ separation in July 2012, and while he was paying the agreed sum of $4000 per month into the joint account or the parties’ household expenses during their separation under one roof.
The wife asserts in her evidence that between 10 December 2010 and 5 December 2017 the husband spent $195,037 on gambling, deriving that sum from an analysis of the husband’s disclosed bank account statements and payments indicated thereon to Casino A, Casino B, Casino C, and Casino D. The wife provides spreadsheets prepared by her at annexure 4 to her affidavit from source material contained in annexures 80 to 83 and 85 to 93. She also includes “unexplained withdrawals of $81,245 and unexplained transfers of $70,479”.
In cross-examination by Dr Sayers, it was put to the husband:
From 2014 to 2016 there were three applications for credit cards and your spending on gambling was such that you would max out each card, get a new card, transfer the balance and then re-max that card
with which the husband agreed.
When asked by Dr Sayers how many credit cards he had through that period the husband answered “five or six” and when it was put to the husband that the analysis of his credit card indicated that he had expended a sum of at least $80,000 to $90,000 he answered “that could be, yes”.
During that cross-examination, it was shown to the husband by Dr Sayers that on credit card applications he had asserted that he was an owner of the B Road property, and liable on the loan account secured by mortgage on that property when he was fully aware that neither was the truth, an assertion with which the husband agreed.
The relevant applications were applications for credit arrangements to Bank P dated 18 December 2014, 26 May 2015, and 4 July 2016. In relation to those occasions the husband responded during cross-examination:
It was a lie. I needed the credit card. I lied. I was in financial trouble. I needed the card to pay the other cards. I lied.
In response to the assertion put to the husband by Dr Sayers:
You say that the financial trouble you were in was caused by gambling.
The husband responded
Yes
The husband then said
I have been a problem gambler since 2010.
When asked if he was still at the time of hearing, a problem gambler, the husband replied:
No, I am in recovery.
The husband confirmed that he started gambling in 2010, that he did some reading and that since 2018 he has been in recovery.
When asked by Dr Sayers in cross-examination why the term “problem gambler” applied to him, the husband responded:
It was never-ending. If I won something, I put it back. I gambled more to recover the money. That’s how I acquired the credit cards.
In cross-examination, the husband confirmed that at the time of the hearing he had no credit cards.
From the wife’s analysis of the husband’s asserted gambling expenditure contained in annexure 79 to her affidavit (the spreadsheet) she asserts that from 10 December 2010, when she asserts the husband started gambling, until the end of July 2012, when the parties separated, the husband’s expenditure on gambling was $30,041.31, with the total to 5 December 2017 being $195,037.
During cross-examination of the wife by Mr Blackah for husband, the husband’s financial circumstances between separation in July 2012 to the husband vacating the B Road property on 13 October 2017 were examined. It was put to the wife by Mr Blackah:
The husband did not have a great deal of net income left after taxation and the $4000 to you, to use on gambling.
to which the wife answered
Correct
The following exchanged occurred:
Mr Blackah: You separated on 12 July 2017?
Wife: Yes.
Mr Blackah: The husband’s gambling after that was his own affair.
Wife: Correct.
Mr Blackah: From 10 July 2012 until the husband left the home on 13 October 2013 he never missed a payment (of the $4000 per month of the joint account).
Wife: Correct.
The husband gave evidence that shortly after the commencement of his de facto relationship with Ms L she made payments in reduction of his credit card debts, being
(a)$5617.66 to a Bank D credit card on 20 November 2017
(b)$13,347.19 to a Company CC credit card on 29 January 2018
(c)$12,464.73 to a Bank R credit card on 2 February 2019
being a total of $31,430.18.
In Ms L’s evidence, she confirmed that from January 2018, the husband’s wages from his employment were deposited to her Bank D account ..22 and the husband was given access to that account and to her Bank D credit card ..63. She was aware from the start of their relationship that he had a number of credit card debts including with Bank O, Bank R, Company CC, Bank D, Bank Q, Company DD and Bank P.
She confirmed her payments to the husband’s Bank D, Bank CC and Bank R credit cards as detailed in the husband’s evidence, and she gave further evidence that moneys were paid from hers and the husband’s joint savings toward his Bank Q credit card from February to May of 2018, to his Bank Q credit card in the sum of $2500 per month from June 2018 to February 2019, and a final payment to that card of $4239.79.
She said that on 31 December 2018 she and the husband opened a joint Bank D account ..94 and that she deposited $28,845.07 into that account from her own Company C account on 8 January 2019, making further deposits to that account from 31 January 2019 to 1 March 2019. She said that on 8 March 2019, she withdrew $8000 from that account and deposited it into her Bank D account ..22 and that a sum of $27,425.77 was withdrawn from that account and deposited to her Bank D account ..21. The Bank D joint account ..94 was then closed.
The payment of $5617.66 made by Ms L to the husband’s Bank D credit card on 20 November 2017 was made before the husband’s wages began to be paid into Ms L’s account …22. The payment of $13,347.79 by Ms L to the husband’s Company CC credit card account was made in the same month that the husband’s wages began to be paid into her account …22. The payment of $12,464.79 to the husband’s Bank R credit card was made on 2 February 2019 from Ms L’s account in her sole name …22, a year after the husband’s wages began to be paid into that account.
In May 2019, the husband’s employment with Company BB was terminated with a redundancy and he received a redundancy payment of $80,163.34 net of tax, the whole of that sum being deposited into Ms L’s Bank D account ..21 on 16 May 2019.
That sum of $80,163.34 was composed of a redundancy payment of $62,399, annual leave of $10,281.60, and a long service leave payment of $15,842.56, being a total gross of $88,523.16, and then taxation of $8359.82 deducted to give the net figure of $80,163.34. This detail is contained in annexure 100 to the wife’s trial affidavit.
The husband commenced his employment with Company BB in 2009, the parties separated in July 2012 and he received the redundancy in May 2019. Accordingly, the husband was in that employment for about three years prior to the parties’ separation and eight years thereafter.
From the husband’s redundancy payment (referring to the total net amount received by him for redundancy, annual leave and long service leave) that he had deposited to Ms L’s account …21, the following payments were made:
(a)A sum of $20,000 was paid to Marsden’s Solicitors on 21 May 2019 towards the husband’s legal fees for these proceedings;
(b)A sum of $9200 was transferred to Ms L’s Bank D account ..22 on 8 June 2016 for the husband and Ms L’s joint living expenses for May and June 2019; and
(c)A sum of $50,963 was transferred to the husband’s Bank D account ..59 on 15 June 2019.
These three transferred amounts total $80,163.
On that same day, 15 June 2019, the husband transferred $31,430.18 from his account …59 to Ms L’s account to repay her for the three payments she had made in reduction of his credit cards to that amount. This left the husband with $19,532.82 of his redundancy payment in his account …59, which he asserts he then expended on educational and living expenses so that at 18 March 2020 he had a sum of $2619.36 in that account.
In April 2020, Ms L “repaid” to the husband $22,000, being a sum they had calculated the husband had “overpaid” Ms L in relation to payment of his credit cards in consequence of the payments to Company CC and Bank R having been made from the account into which the husband was, by that time, contributing his wages. The husband applied that sum of $22,000 toward payment of his legal costs.
The parties went into evidence concerning redraws made by the wife on the loan account in her name secured by way of mortgage on the B Road property after the parties’ separation, the husband asserting that such redraws should be added back to the matrimonial asset pool available for adjustment between the parties.
When the husband left the B Road property on 13 October 2017, the amount owing on the Bank P loan account in the wife’s name was $68,354.96. On that same day, the balance of the wife’s Bank P account ..50 was a credit balance of $49,664.54. Between 25 March 2014 and 24 June 2019 the wife drew down on the Bank P loan account sums totalling $122,840.86, that figure derived from annexure U to the husband’s affidavit being a table prepared by the husband from source documents pursuant to section 50 of the Evidence Act 1995 (Cth).
The wife agreed that the balance owing on the account at 13 October 2017 was $68,354.96 and that at the time of hearing the balance outstanding was $117,271. The wife referred to her draw down on that account of $25,000 toward purchase of motor vehicle 3 in March 2018, being $10,000 on 7 March 2018, $10,000 on 8 March 2018 and $5000 on 2 April 2018. I note that in the wife’s trial affidavit at paragraph 145, she erroneously states the dates of these payments as 7 March 2020, 8 March 2020 and 2 April 2013, but she refers in paragraph 146 to her Bank P home loan statements at annexure 70 to her affidavit and perusal of those statements for the home loan account .. indicates the correct dates of the payments.
The payment of $25,000 to the purchase of the car would have increased the amount owing from $68,354.96 to $93,354.96. On the wife’s evidence, the balance of $23,916.04 to take the balance owing up to the $117,271 as at the time of hearing was an expenditure of about $20,000 on the purchase of new furniture and $3000 for a new air conditioner at the B Road property. That evidence for the wife is found in her answer to the last question in re-examination by Dr Sayers where, in response to Dr Sayers’ question, “You were taken to draw downs in 2018 and you say there were reasons for the draw downs”, The wife responded, “I drew $25,000 to buy motor vehicle 3, $20,000 for furniture, $3000 drawn down to renew the air conditioner in the house and for things paid for like school feels and others costs.”
In relation to the reduction in the balance of the wife’s Bank P offset account …50 the wife indicated that she had used some of those moneys to purchase shares and generally for living expenses. She indicated that the husband had made no financial contribution to the costs associated with the B Road property since 13 October 2017 when he moved out and that besides the capital expenditures she had made from the loan account, the other redraws on that account were for general living expenses for herself and the children.
The husband gave evidence that between 13 and 16 February 2016, the wife transferred a sum of $10,000 in total to her mother and her brother.
The wife sold some of her Company E’s shares in November 2019, receiving $5620.50 and others in February 2020 receiving $5027.95 and applied the whole of those moneys to a payment of school fees, uniform costs for the children, school books, and Christmas presents and for Y’s birthday.
The wife asserted that at the time of the separation the husband had a Raymond Weil watch, gold jewellery and diamond studs, an engagement ring valued in 2000 at $5450, a “high quality” camera and a bag of diamonds. The husband was not cross examined about those items.
The husband commenced employment with Company EE on 23 March 2020 as a professional and was in that employment at the time of the hearing. The wife remained in employment with Company C as a finance professional at the time of the hearing. The husband asserted that his annual income from his employment was $93,600, the wife asserting that her annual income from her employment was about $121,000 with a further $2600 per year from dividends on her shareholdings.
The husband asserted that as at the time of swearing his financial statement on 1 April 2020, he was paying a sum of $255 per week as assessed child support for the children of the marriage, whilst the wife asserted in her financial statement sworn or affirmed 17 April 2020 that she received a sum of $215 per week as child support for the children from the husband. The evidence indicates that in April 2019 an assessment was made for the husband to pay child support in the sum of $1070 per month, that between September and October 2019 the assessment was $250 a week, from October 2019 the assessment was $998 a month, in March 2020 the assessment was reduced to $240 a week and as stated by the wife in cross-examination, the assessment amount at the time of hearing was $1457.25 per month which equates to $336.29 per week. The husband gave evidence that from January 2018 until the commencement of the child support assessment he paid an amount of $800 per month to the wife as child support on the basis of a voluntary agreement between them.
The husband continues to live in the home of Ms L as a tenant or licensee paying Ms L $400 per week. Ms L was cross-examined by Dr Sayers on behalf of the wife about the husband’s rental payments to the effect that such payments were excessive for his occupation of a room and use of the balance of the home in Suburb E. After careful perusal of that evidence, I do not accept that the husband’s payment of $400 per week is excessive.
The husband has no family in Australia other than his two children.
The wife gives some evidence that she is affected by diabetes and blood pressure problems and that in 2015 she had a hip replacement operation. There is no suggestion in the evidence that these medical conditions affect her employability currently or in the foreseeable future.
The husband spends time with the children by arrangement between the parents only on occasions when he is in Queensland and then for only very limited time. During the period that he resided in Brisbane from October 2019 until March 2020, he did not spend any overnight occasions with the children, but rather spent some day times with them taking them to activities and out to eat meals during the day. It is inherent in the evidence that certainly from 13 October 2017 the wife has been the sole carer for the children with assistance from her mother, their maternal grandmother.
THE CONTESTED MATRIMONIAL ASSET POOL
A joint balance sheet was provided to the Court by the parties on the final day of the hearing, 5 June 2020, indicating agreement in relation to values of the admitted items and indicating areas of disagreement between the parties relating to certain matters including the husband’s late mother’s estate in India and issue relating to asserted addbacks. The joint balance sheet is set out as follows:
ASSETS # Ownership Description Applicant’s Value Respondent’s Value 1 Joint Bank P Account ..04 NK NK 2 Joint Bank P Savings on behalf of the children …36 Nil Nil 3 Applicant Motor vehicle 1 6,775 6,775 4 Respondent Suburb C property 635,000 635,000 5 Respondent Motor vehicle 2 19,875 19,875 6 Respondent 1,417 shares in Company E) as at 21.03.20 53,095 53,095 7 Respondent 442 Company C Shares as at 21.3.2020 3650 3650 8 Respondent 1451 Company F shares as at 21.03.2020 3,888 3,888 9 Respondent 731 Company G Shares as at 21.03.2020 69 69 10 Respondent Bank P Offset Account no ending …50 6,431 6,431 11 Applicant 50% Interest in Ancestral India property NIL Not known 12 Respondent Furniture and Household Contents E5,000 E5,000 13 Applicant Bank D Account (..59) 1,810 1,810 SUBTOTAL $735,593.00 $735,593.00 ADDBACKS # Ownership Description Applicant’s Value Respondent’s Value 14 Applicant Husband’s Redundancy Payment NIL 60,163 15 Respondent Wife’s draw down on mortgage …06 as at 24 March 2020 48,916 Nil 16 Respondent Bank P offset account …50 balance as at September 2017 46,061 Nil 17 Respondent Wife’s Legal Costs 86,326 15,000 18 Applicant Monies paid to date by the husband to his lawyers 60,098 60,098 SUBTOTAL $241,401 $135,261 LIABILITIES # Ownership Description Applicant’s Value Respondent’s Value 19 Respondent Bank P loan account secured by mortgage 117,271 117,271 SUBTOTAL $117,271 $117,271 SUPERANNUATION # Member Name of Fund Type of Interest Applicants value Respondents value 20 Applicant R Superannuation Accumulation fund 129,407 129,407 21 Respondent Employer C Superannuation as at 20.03.20 Accumulation fund 223,579 223,579 SUBTOTAL $352,986 $352,986
Accordingly, the following issues arise from the parties’ competing contentions in relation to the matrimonial asset pool:
(a)Whether or not the husband has any interest in the property in India that formed part of his late mother’s estate. I have already made a finding that the husband has no interest in that property earlier in these reasons.
(b)The balance of the husband’s redundancy payment after $20,000 therefrom was paid toward his legal fees for these proceedings, being $60,163, asserted by the wife to be an addback.
(c)Redraws made by the wife from Bank P loan account secured by the mortgage on the B Road property between 13 October 2017 when the husband vacated the property (balancing owing $68,354.96) and the hearing (balance owing $117,271) being asserted by the husband to be an addback to the pool in the sum of $48,916.
(d)The reduction in the balance of the wife’s Bank P mortgage offset account …50 from the balance of $49,664.54 at 13 October 2017 to $6431 owing at hearing. The husband asserts and addback on the joint balance sheet in the sum of $46,061, but given the amount shown at item 8 for the balance of that account as agreed between the parties at the hearing, the asserted addback is really in an amount of $43,233.
(e)Whether funds paid by the wife toward her legal fees for the proceedings in the sum of $86,326 should be added back, as asserted by the husband or a sum of $15,000 as asserted by the wife, or indeed any sum at all.
(f)Whether legal fees paid by the husband for these proceedings in the sum of $60,098 should be added back, or any part thereof.
(g)How, if at all, should the moneys expended by the husband both prior to separation and post-separation on gambling be dealt with?
(h)Is there any finding required in relation to the competing evidence of the parties, with Mr J adding corroborative evidence on the side of the husband, in relation to the erection of the Bali hut?
SUBMISSIONS
Mr Blackah made submissions on behalf of the husband, the whole of which I have reviewed and taken into account in preparation of these reasons and only specific parts I refer to as follows:
(a)That based upon the whole of the evidence available on hearing the husband’s mother’s property in India should not appear on the balance sheet at all as “ancestral property India”, the husband having no interest in that property;
(b)That the husband’s redundancy payment from his employment with Company BB contained a component of contribution by the husband post-separation, being three years’ employment prior to separation and five years post-separation;
(c)That most of the husband’s credit card debits accumulated in consequence of his gambling was paid for by the husband from his post-separation earnings;
(d)That most of the husband’s asserted gambling expenditure as summarised in annexure 79 spreadsheet to the wife’s affidavit (page 647 of the annexure bundle) occurred post-separation and did not take into account winnings and that in any case it was “his money to gamble”, the parties agreeing that from 2010 onwards he was contributing $4000 per month to the joint household expenses up to separation and thereafter until he vacated the property in October 2017. Mr Blackah submitted that, as the wife had conceded, after his contribution of $4000 per month and payment of tax on his earnings there was “not a lot left for gambling”.
(e)Mr Blackah made submissions on a danger of a double count if the husband’s expenditure on gambling is taken into account so as to diminish the husband’s contribution entitlement, but also treat it as a form of addback.
(f)Mr Blackah conceded for the husband that the wife’s contribution post-separation exceeded the husband’s contribution for both financial and non-financial contributions.
(g)That the evidence of Mr J was not challenged and that he was not required for cross-examination.
(h)That the wife’s contribution by introducing the B Road property at the commencement of cohabitation with a value agreed at $250,000 and a loan account debt secured by mortgage of $92,398.99 meant an initial contribution in that regard by the wife of $117,601.01.
(i)In relation to matters under section 75(2) of the Act, Mr Blackah submitted that the wife was in a stronger financial position than the husband and that a certain outcome of the hearing will be that the wife will retain the B Road property and the husband will continue paying rent for his accommodation. He submitted that in relation to the comparison of their earning capacities they were about equal and that there was no basis for an adjustment between them for that consideration.
(j)That the wife certainly had primary care of the children, which favoured an adjustment in favour of the wife.
(k)Mr Blackah submitted that it was “a 60 per cent to the wife – 40 per cent to the husband case and the husband’s minute of order reflects that through the husband’s figures in balance sheet”.
(l)In relation to credit issues between the parties, Mr Blackah submitted that whilst the husband had lied to Bank D in relation to his credit card applications, he did so because he was in financial difficulty at the time and needed the application to succeed but that same should not reflect on his evidence to the Court in the matter. He submitted that the wife was “evasive” and “a bit slippery” in relation to expenditure, particularly in relation to the sums redrawn on the loan account secured on the B Road property and the reduction in the balance of her Bank P offset account.
Dr Sayers made submissions on behalf of the wife and I have carefully reviewed the whole of those submission for the preparation of these reasons. I refer to only specific matters from those submissions as follows:
(a)That as both parties seek an order from the Court that the parties’ joint Bank P savings account ..36 be split into equal amounts and invested in bonds for the children, such an order enlivens the Court making an order pursuant to section 79 of the Act and as the Court must consider that it is just and equitable to make an adjustive order under the section, the wife cannot pursue a Stanford argument and submit that the Court should make an order under section 79(2) that it is not just and equitable to make a property adjustment order under section 79 of the Act.
(b)That the case is “mostly a contribution case, depending on how the Court deals with the gambling issue, and there may be some section 75(2) adjustments in relation to the asserted addbacks, under section 75(2)(o).”
(c)That the period of cohabitation between the parties was some 12 years, but with a 20 year period relevant to consideration by the Court of contributions by or on behalf of the parties, with five years of that period being the “separation under the one roof” period and that when the Court takes a holistic approach to contributions, there were three distinct times to consider in relation to contributions, being the period of cohabitation, the five years of separation under one roof, and the period since October 2017 when the husband left the matrimonial home.
(d)That there is net equity in the Suburb C property of $518,000, representing 42 per cent of the property pool.
(e)That the Suburb C property was purchased by the wife five years prior to cohabitation and it was a positively geared rental property for the period of from cohabitation until the parties moved into the property in 2007.
(f)That the wife made by far the greater financial contribution in relation to income earned from gainful employment during the period of the parties cohabitation as per the table in evidence at paragraph 53 of the wife’s trial affidavit being $988,551 gross by the wife and $511,993 gross by the husband.
(g)Dr Sayers submitted that a contribution assessment on a holistic basis should be no lower than 70 per cent and up to 80 per cent in favour of the wife.
(h)That there was no suggestion in the evidence that the wife had at any time done anything other than apply the whole of her income and financial resources to the benefit of the family unit.
(i)That the overwhelming direct financial contribution was from the wife in relation to both capital and income.
(j)That but for the wife’s financial support of the husband while he was studying until 2002 (on the husband’s evidence) or 2004 (on the wife’s evidence) the husband would be unable to have his current earning capacity.
(k)In relation to the issue of the husband’s gambling, that while the wife estimated that he husband’s losses were about $100,000, the husband rejected that sum in cross-examination, but conceded that he had used credit cards up an amount of 60,000 or 80,000 or 90,000 dollars for gambling. While the submission made by Mr Blackah on behalf of the husband may well be correct – that there is not much income left of the husband with which to gamble after his contribution of $4000 for the month and payment of tax – he did gamble up to $90,000 drawn by him on credit cards for the purpose.
(l)That Mr Blackah was correct, of course, in his submission that the wife cannot have both an addback in relation to the husband’s gambling and consideration under section 75(2) adjustment in consequence of the husband’s gambling, but that the wife was not seeking any addback in relation to gambling.
(m)That the husband’s gambling expenditure should be dealt with by the Court when considering the parties’ contributions on an holistic basis, and not deal with by way of addback or adjustment under considerations in section 75(2)(o). In relation thereto Dr Sayers referred to the decision of Murphy J in Watson & Ling [2013] FamCA 57, the decision of Cronin J in Toft & Royce [2013] FamCA 372, in particular at paragraph 14, and the Full Court’s approval of Watson & Ling in Keskin& Keskin and Anor [2019] FamCAFC 236 at paragraphs 33 to 40, particular in paragraph 39, where the Full Court said that a discretionary increase in a parties’ proportional share of the asset pool available for adjustment due to dissipation of assets by the other party “could properly find expression in either the overall comparison of the contributions under section 79(4)(a)(ii)(c) of the Act or as a factor under section 75(2) of the Act.” I will consider those authorities in greater detail later in these reasons.[2]
(n)That the increase in the balance owing on the loan account secured on the B Road property and the reduction in the credit balance of the wife’s Bank P offset account are fully and adequately explained by the wife as to the expenditure thereof and do not ground any form of addback or adjustment in favour of the husband.
(o)That there is no need to make any particular finding on the competing evidence of the parties in relation to the husband’s contribution to the planning and erection of the Bali hut as there is no evidence before the Court whatsoever that the Bali hut does or does not add to the value of the B Road property and that accordingly the competing evidence in relation that issue “is of no real importance”.
(p)In relation to the issues of credit between the parties, Dr Sayers pointed to the husband’s deliberate misrepresentation – referred to by the husband as lies in cross-examination – to Bank P on several applications for credit cards and that such demonstrates the husband’s willingness to be untruthful in important financial matters where truthfulness is required, and that accordingly the evidence of the wife should be preferred over that of the husband where they are inconsistent.
(q)That there is “not much ground for an adjustment under section 75(2), but the considerations in relation to the Indian property and the possibility of the husband in a de facto relationship with Ms L provides a basis for some section 75(2) adjustment in favour of the wife.”
(r)That the matter was “essentially a contribution case”, favouring the wife by 75 to 80 per cent and that there may be some adjustment in favour of the wife under section 75(2) in relation to the husband’s expenditure on gambling if same is not dealt with in the consideration of contributions.
THE LAW
[2] Keskin & Keskin and Anor [2019] FamCAFC 236, [39].
Property settlement under section 79 of the Act
The law relating to the alteration of property interests between two parties to a marriage is governed by section 79 of the Act.[3] Section 79(1) vests the Court with power to alter the interests of the parties in property,[4] and the power to make orders providing for the settlement or transfer of property, as determined by the Court.[5]
[3] Family Law Act 1975 (Cth) s 79.
[4] Family Law Act 1975 (Cth) s 79(1)(a).
[5] Family Law Act 1975 (Cth) s 79(1)(d).
However, the Court must not make an order under section 79 unless the Court is satisfied that, in all of the circumstances, it is just and equitable to do so.[6] The legislative process required by section 79 was considered by the High Court in Stanford & Stanford (2012) 247 CLR 108.
[6] Family Law Act 1975 (Cth) s 79(2).
In that decision, the High Court held that section 79(2) requires that at the outset of the Court’s decision-making process the Court must consider whether or not, in all the circumstances, it is just and equitable to make an order under section 79(1) altering the interests of the parties to the marriage in property.
In considering the proposition posed by this first step, a Court should start by identifying items under the following categories:
(a)The existing legal and equitable interests of the parties in property, according to ordinary common law and equitable principles;
(b)The existing liabilities of the parties, according to ordinary common law and equitable principles and under legislation; and
(c)The rights of the parties, if any, according to ordinary common law and equitable principles and under legislation, in relation to any asserted resources of the parties that may, if it is considered just and equitable to proceed with the property settlement, be taken into account in the Court’s consideration of the matters referred to in section 75(2) of the Act, to which section 79(4)(e) directs the Court’s attention.[7]
[7] Stanford & Stanford (2012) 247 CLR 108; see, especially, [37].
That the interests as described above are ‘existing’ is of importance, as the Court noted, because the text of the section gives reference to ‘altering’ the interests.[8]
[8] Stanford & Stanford (2012) 247 CLR 108, [37].
I further note the comments of the High Court in Stanford at paragraph 42 which I reproduce in full here:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).[9]
[9] Stanford & Stanford (2012) 247 CLR 108, [42].
The parties’ marital relationship ended in July 2012, though they continued to reside under the same room until the husband left on 13 October 2017. The principal asset the relationship is the wife’s equity in the real property at B Road, Suburb C in Queensland, which on its own represents 80.1 per cent of the gross assets not including superannuation, or 76.6 of that net assets, not including superannuation.
Though the case presented before the Court by wife may appear, at first blush, to be what has come to be known as a ‘Stanford argument’, that is, that it is not just and equitable as between the parties for the Court to make any order pursuant to section 79, it was conceded by Dr Sayers, and rightly conceded, that as the wife seeks an order under section 79 that deals with the parties’ joint Bank P saving account number …36 so as to allocate the value of the fund equally between the parties’ children, the wife is conceding that it is just and equitable to make an order under section 79 and so, to quote Dr Sayers in submissions, she “can’t pursue a Stanford argument”.
I find that in the circumstances of:
(a)The parties’ separation;
(b)The evidence substantiating a need to do justice and equity between the parties by considering and then making a adjustive order under section 79; and
(c)Both parties seeking an adjustive order in relation to the joint Bank P savings account,
it is just and equitable to proceed with making orders under section 79 of the Act.
SECTION 79(4)(A)(II)(C) – CONTRIBUTIONS
At the commencement of the parties’ cohabitation in 2000 I find that the husband had no assets to contribute, but that he had no credit card debt to be paid off after commencement of cohabitation as the wife asserts.
I find that the wife had her interest in the B Road property with equity therein valued at $216,000 (an agreed fact between the parties). I further find that at the commencement of cohabitation the wife had the shareholdings detailed earlier in these reasons with a combined value of about $22,138 and some superannuation entitlements. The value of the wife’s superannuation entitlements at the commencement of cohabitation in 2000 is not in evidence, but there is evidence that as at 10 March 2003 those entitlements were valued at $27,069.43. The wife was in paid employment at the time the parties’ commenced cohabitation and accordingly her superannuation entitlements would have been increasing between cohabitation and 2003 at least pursuant to the employer compulsory superannuation legislation.
During the parties’ cohabitation from 2000 until separation on 7 July 2012, the wife was in paid employment except for a period of 12 months maternity leave around the birth of each of the parties’ children, though the wife was in receipt of some income in relation to that maternity leave, and for a few months between her redundancy from Company C in 2009 and taking up contract work with Company M in 2009.
At the time of the parties’ cohabitation the husband was a student and engaged in some part-time work, though limited to 20 hours per week in accordance with the terms of his student visa at the time, and that he did not begin full-time work until 2004 when he gained employment as a professional with Company Y. I find that the husband was then in full-time employment, mainly with Company BB, until he was made redundant on 10 May 2019. Accordingly, the husband’s engagement in full-time paid employment spanned a period from 2004 until the parties’ separation on 7 July 2012 and continuing through their period of separation under the same roof, during which the husband contributed a sum of $4000 per month toward the family living expenses.
I accept the evidence of the wife set out at paragraph 53 of her trial affidavit that over the period encompassing the financial years 2001 to 2012 the wife had a taxable income totalling $988,551 and the husband had a taxable income totalling $511,993, and that other than the expenditure by the husband of a sum of $30,041.31 on gambling, each of the parties contributed their taxable income toward the acquisition, conservation, improvement of the property of the parties, jointly and individually, and toward the welfare of the family unit in relation to the family’s living expenses.
I find that early in the parties’ cohabitation the wife paid a sum of $4840 to migration agents in relation to the husband obtaining his permanent residency visa to remain in Australia and that such payment came from the wife’s earning which form part of the moneys I have already referred to as detailed in paragraph 53 of the wife’s trial affidavit.
The wife was in receipt of rental income in the sum of $420 per week from the tenancy of the Suburb C property from the time of the parties’ cohabitation until the parties occupied that property as their matrimonial home in 2007. Once again, on the basis of the wife’s evidence, which I accept, that the property was not negatively geared but that the rental income covered all expenses in relation to the property with a small surplus, such surplus formed part of the wife’s taxable income as already referred to as summarised at paragraph 53 of her trial affidavit.
When the parties purchased the Suburb E property in 2001, they borrowed from the Bank P $10,000 more than the purchase price of the property and the parties were able to obtain that loan and complete that purchase in their joint names because the wife was able to provide to the Bank P additional security by way of cross security on the Suburb C property, that security being released on the sale of the Suburb E in 2006. The sale of the Suburb E property netted the parties a sum of $51,894.81. Further, the loan was obtained by the parties for purchase of the Suburb E property based upon the wife’s income as it was stated by the husband to the bank at that time that he had no income and was a student.
During the parties’ cohabitation and the wife’s employment with Company C, she received shares under an employee share allocation scheme from Company C, those shares being retained by the wife and reflected as an asset in the matrimonial asset pool available for adjustment between the parties.
Each of the parties effected improvements to the Suburb C property at times through their personal exertion in relation to painting, fencing, removing carpets, landscaping, and general maintenance.
From the time of birth of each of the parties’ children – X born in 2007 and Y born in 2011 – each of the parties contributed toward the children’s day-to-day care. The mother took 12 months maternity leave following the birth of each child, and during such 12 months I find that she was primarily responsible for first X’s care and later both X and Y’s care.
I find that during periods when both parties were engaged in paid employment, they both made a contribution to the care and parenting of each of the children, but that the wife made a slightly greater contribution than that of the husband in consequence of his interstate travel for work and absence consequent upon of his employment on some occasions on weekends and late in the evening on weekdays.
Each of the children were in day care five days per week from when they were six months of age and the parties had assistance from the maternal grandmother with childcare on occasions.
I find, particularly based upon the cross-examination of the wife by Mr Blackah, that the parties were equally responsible for completion of the homemaker tasks within the family unit up to the time of their separation and continuing up until the husband left the matrimonial home on 13 October 2017.
Following the parties’ separation on 7 July 2012, they remained residing under the same roof. The husband left on 13 October 2017. I find that during that period of time, as I have already stated, the parties shared the homemaker role equally between them and that they also shared the responsibility for parenting the children of the marriage on an equal basis.
I find that during the period of time the parties were separated while living under the one roof, they made equal contribution to the financial support of the family unit for provision of day-to-day living expenses including the required payments on the loan account secured by way of mortgage on the Suburb C property, which was the former matrimonial home occupied by the parties and the children during that period of time.
Following the husband vacating the matrimonial home on 13 October 2017, I find that the wife has been solely responsible as between the parents for the day-to-day care and parenting of the children, the husband having very little participation therein, that participation being confined to the very limited periods of time that he has spent time with the children after October 2017 and been responsible for their care.
Following October 2017 the wife was solely responsible for the financial support of the children until January 2018. From January 2018 until April 2019, she was principally responsible for their financial support, the husband contributing a sum of $800 per month on a voluntary basis for the children’s financial needs. Since April 2019, the husband has paid child support as assessed for the children and the wife has met the balance of the cost of the children’s financial needs.
The superannuation entitlements of the parties at hearing were an entitlement valued at $129,407 in an accumulation fund with R Superannuation in the husband’s name and an entitlement valued at $223,579 in an accumulation fund with Employer C Superannuation in the wife’s name. Except for that part of the wife’s accumulated superannuation entitlements that relates to her super entitlements held at the commencement of cohabitation – an amount being something less than $27,069 – the parties’ superannuation entitlements have accumulated during the period of their cohabitation from 2000 until 7 July 2012.
Thereafter, they continued to share in the financial support of each other and their children whilst residing under the same roof from 7 July 2012 to 13 October 2017, and thereafter living separately and apart with no intermingling of their financial affairs outside of contributions by the husband to child support.
During the period of cohabitation, as I have found is accurately reflected in paragraph 53 of the wife’s trial affidavit, the wife had a taxable income of $998,551 whilst the husband had a taxable income of $511,993. Some of the wife’s taxable income for the period up to March 2007 related to taxable income received from the rental income on the Suburb C property and that part would have had no effect on the wife’s accumulation of superannuation entitlements under the employer compulsory superannuation scheme. However, even allowing for that aspect of the wife’s taxable income, it is plain that the wife’s taxable income from her gainful employment outstripped that of the husband by a sum of several hundred thousand dollars, and that accordingly the moneys paid into the wife’s superannuation entitlements under the employer compulsory superannuation scheme would have been greater than that of the husband. However, during this period of time the parties were a family unit and there were contributions by way of homemaker, parent and so forth that must also be taken into consideration.
During the period after the parties separated – from 2012 until the hearing – the parties’ intermingling of their financial affairs continued, but on the basis that the husband provided a sum of $4000 per month toward the family’s overall costs until he left the matrimonial home in October 2017.
I find that in this matter it is appropriate to approach adjustment of property between the parties on the basis of a two pool approach, one pool being the available assets and the relevant liability of the parties and the other pool being their superannuation entitlements.
In relation to the available assets/current relevant liability pool I assess the contributions of the parties on a holistic basis by considering contributions at cohabitation, during cohabitation and following separation, and find that overall, on a holistic basis, the contributions are 70 per cent by the wife and 30 per cent by the husband.
In relation to the parties’ superannuation entitlements pool I assess the contributions as being 60 per cent by the wife and 40 per cent by the husband.
SECTION 79(4)(d) – THE EFFECT OF ANY PROPOSED ORDER UPON THE EARNING CAPACITY OF EITHER PARTY TO THE MARRIAGE
I have detailed the competing proposals of the parties in relation to property adjustment earlier in these reasons and I find that orders being made as sought by either of the parties or orders being made that fall between those being sought by the parties will have no effect upon the earning capacity of either party to the marriage.
SECTION 79(4)(e) – CONSIDERATION OF ANY ADJUSTMENT APPROPRIATE BETWEEN THE PARTIES PURSUANT TO RELEVANT MATTERS IN SECTION 75(2) OF THE ACT
In submissions for the father Mr Blackah submitted that there was no basis for an adjustment under section 75(2) between the parties given, in his submission:
(a)The wife’s stronger financial position following settlement as on any contemplated outcome she would retain the Suburb C property whilst the husband paid rent for his accommodation;
(b)That their earning capacity was about equal;
(c)That the wife will have primary care of the children; and
(d)That neither party has any health issues that would affect their ability to engage in appropriate gainful employment.
On behalf of the wife, Dr Sayers submitted that the matter was “mostly a contribution case depending on how the Court deals with the gambling issue” and that there may be some adjustment between the parties in relation to asserted addbacks pursuant to section 75(2)(o). At the end of his submissions he submitted that there was “not much ground for an adjustment under section 75(2)” but that depending on how the Court considered the evidence relating to the wife’s assertion that the husband had inherited the Indian property or part thereof from his mother and “the possibility of the husband being in a de facto relationship with Ms L” there may be some basis for a section 75(2) adjustment between the parties.
At hearing both parties were 49 years of age, each was in paid employment, and there was no evidence to indicate that either party was other than physically and mentally capable of continuing to engage in appropriate gainful employment. The evidence contained in each parties’ financial statement, which was not contested, was that the husband had an annual income before tax of $93,600 and the wife had an annual income before tax (and not including child support) of $121,732. The husband asserted that his income was sufficient to meet his expenses, whilst the wife asserted that her income, including child support, was inadequate to meet her expenses, presumably including the children’s expenses, with a shortfall of $518 a week.
The wife has sole care and control as between the parties of the children of the marriage. X was 13 years of age at the time of the hearing and Y nine years of age. There is nothing to indicate other than that the wife will continue to be solely responsible for the day-to-day care and control of the children and responsible for their financial needs other than as provided for by the husband in his child support payments until each of those children attain 18 years of age. This consideration favours an adjustment in favour of the wife.
On all of the evidence, I do not accept the assertion of the wife that the husband is in a de facto relationship with Ms L.
I find that other than the parties’ responsibility to financially maintain their children, neither is responsible for the support of any other person.
Neither party is in receipt of a pension, allowance or benefit under the law of the Commonwealth or of a state or territory or of any other country nor for any superannuation fund or scheme of which they are a member.
None of the orders proposed in this matter or any order are lying between the positions of the parties on hearing would affect the ability of a creditor of the parties to recover the creditor’s debt.
Each of the parties has contributed during their period of cohabitation, and to a lesser extent during their period of separation under the one roof, to the income earning capacity, property and financial resources of the other party.
The parties’ marital cohabitation of 12 years and marital relationship continuing up to March/April 2018 has not had a detrimental effect on the earning capacity of either of the parties.
The wife will continue her role as parent for the two children of the marriage and none of the orders proposed in this matter would have a detrimental effect upon that role.
Neither party is cohabiting with any other person. The husband pays child support to the wife for the children of the marriage as assessed from time to time under the relevant child support legislation.
The husband’s expenditure of moneys, which I have found to be in the sum of $30,041.31 between December 2010 and separation of the parties in July 2012 on gambling was a wastage of the financial assets and resources of the parties during that period of time, being moneys that otherwise would have been available for contribution toward the day-to-day living expenses of the family unit or application toward the acquisition, conservation or improvement of property of the parties or either of them. I take the gambling expenditure by the husband into account under section 75(2)(o) of the Act as a factor in favour of an adjustment in favour of the wife.
The husband’s expenditure of his redundancy moneys from Company BB received by him in May 2019, other than that part that was expended by him on legal fees which has been taken into account in the matrimonial asset pool as an addback, I set off against the wife’s expenditure of funds from the loan account with Bank P secured against the Suburb C property and expenditure from her Bank P offset account following October 2017 (other than on purchase of the motor vehicle for $25,000). I consider that as a matter of the justice of the case, I find that it is appropriate to “set one off against the other”, and not find in favour of an adjustment in favour of either party on the basis of that expenditure.
I find that after considering the relevant matters in section 75(2) that it is just and equitable to make an adjustment in favour of the wife of five per cent of the net matrimonial asset pool of available assets and current liabilities excluding superannuation and not to make any adjustment between the parties in relation to the superannuation entitlements asset pool.
That adjustment of five per cent in favour of the wife on the available assets pool represents $33,766.10 where the net pool value is $675,322.
SECTION 79(4)(f) AND (g) – ANY OTHER ORDER MADE UNDER THE ACT AFFECTING A PARTY TO THE MARRIAGE OR A CHILD OF THE MARRIAGE AND CHILD SUPPORT CONSIDERATIONS.
I find that there are no orders made under the Act affecting a party to the marriage or a child of the marriage that have bearing upon the Court’s determination of appropriate orders altering the interests of the parties to the marriage in property. The payment of child support by the husband to the wife for the children of the marriage, and the amount thereof, should not have any further bearing upon the Court’s consideration of appropriate orders, altering the interests of the parties to the marriage in property.
CONCLUSION
Accordingly I find that in relation to the matrimonial asset pool composed of the available assets of the parties and the relevant liability and excluding superannuation entitlements, the appropriate division between the parties is as to 75 per cent to the wife and 25 per cent to the husband.
In relation to the parties’ superannuation entitlement I find that the appropriate division between the parties of the net pool is as to 60 per cent to the wife and 40 per cent to the husband.
In relation to the orders appropriate to be made between the parties, both parties seek orders that contemplate the wife retaining the Suburb C property together with the property currently in her power, possession or control and making an adjustive payment to the husband and there being a superannuation splitting order in relation to the appropriate adjustment between the parties of their superannuation entitlements.
I find that appropriate orders in this matter will provide for the wife to retain:
(a)The Suburb C property, of which she is the sole registered proprietor and to continue to be solely liable as between the husband and the wife for repayment of the loan account secured on the Suburb C property by way of mortgage;
(b)The Motor vehicle 2;
(c)Her shareholdings in Company E, Company C, Company F and Company G;
(d)The credit balance in her Bank H account ..50;
(e)The furniture and household contents in her possession; and
(f)The notional addback of the sum of $15,000 of the moneys paid by her toward her legal fees for these proceedings.
Orders should be made providing for the husband to retain:
(g)The motor vehicle 1;
(h)A credit balance in his Bank D account ..59; and
(i)The notional addback of a sum of $42,000 of the moneys paid by him toward his legal fees for these proceedings.
On that basis, the wife would have property to the value of $742,008 and liability on the loan account secured by a mortgage on Suburb C of $117,271 giving her a net balance of $624,737.
The husband would have assets to the value of $50,585.
The net pool is therefore $675,322. 25 per cent thereof is $168,830.50 and 75 per cent thereof is $506,491.50. On that basis, the wife will pay to the husband a sum of $118,245.50.
Orders will be made that in the event that the wife has not made the required payment to the husband within three months for the date of orders then the wife will engage in the sale of the Suburb C property and that the net proceeds of that sale will be distributed between the parties so as to achieve a 75 per cent to the wife/25 per cent to the husband overall division where the husband otherwise has $50,585 worth of property and the wife otherwise has $107,008 worth of property, and the net matrimonial asset pool to be divided is the sum of those two holdings plus the net proceeds of sale of the matrimonial home.
The appropriate order to be made in relation to the superannuation entitlements pool is that a splitting order be made in favour of the husband from the wife’s Employer C superannuation with the base amount of $11,787, thereby giving the wife 60 per cent ($211,792) and the husband 40 per cent ($141,194) of the total superannuation pool of $352,986.
I make the orders as set out at the beginning of these reasons.
I certify that the preceding two hundred and fifty (250) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley. Associate:
Dated: 17 September 2021
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