Vestri & Vestri (No 6)
[2024] FedCFamC1F 292
•3 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vestri & Vestri (No 6) [2024] FedCFamC1F 292
File number(s): CAC 405 of 2022 Judgment of: GILL J Date of judgment: 3 May 2024 Catchwords: FAMILY LAW – PROPERTY – Where the husband did not appear following substantial non-compliance with disclosure and filing obligations – Where the matter proceeded undefended – Kennon considerations as to contributions – Significant family violence – Wife primary carer for the children including while husband was in prison – Wife’s contributions rendered significantly more arduous – Consideration of s 75(2) matters – Adjustment taking into account the gross disparity in the parties’ future prospects – Wife’s future earning capacity significantly impacted by family violence of the husband Legislation: Family Law Act 1975 (Cth) ss 75(2) and 79 Cases cited: Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Chang v Su (2002) FLC 93-117; [2002] FamCA 156
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46
Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27
Vestri & Vestri (No 5) [2024] FedCFamC1F 256
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Weir v Weir (1993) FLC 92-338; [1992] FamCA 69
Division: Division 1 First Instance Number of paragraphs: 69 Date of last submission/s: 3 May 2024 Date of hearing: 17 April 2024 Place: Canberra Solicitor for the Applicant: Litigant in Person (did not participate) Counsel for the Respondent: Mr Haddock Solicitor for the Respondent: Neilan Stramandinoli Family Lawyers ORDERS
CAC 405 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR VESTRI
Applicant
AND: MS VESTRI
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
3 MAY 2024
THE COURT ORDERS THAT:
1.All previous property orders are discharged.
2.Within 30 days of these Orders, the husband pay to the wife $1,860,255, comprised in the following manner:
(a)The wife is forthwith permitted to retain the balance of the funds quarantined in the Neilan Stramandinoli Family Law Practice Trust Account pursuant to Orders made on 8 March 2024 in the sum of $273,633;
(b)The balance of funds held pursuant to injunction of 8 March 2024 in the Australian and New Zealand Banking Group (ANZ) accounts …13, …28 and …78 in the sum of approximately $232,422 to the Neilan Stramandinoli Family Law Practice Trust Account; and
(c)Then the balance of approximately $1,354,200 to the Neilan Stramandinoli Family Law Practice Trust Account.
3.Upon receipt of the payment at Order 2(c) above, the wife do all things necessary to return Motor Vehicle 1, registration number …, to the husband.
4.The wife retain the following assets for her sole use and benefit, free from claim by the husband:
(a)Her superannuation entitlements with Superannuation Fund 1, Superannuation Fund 2 and Superannuation Fund 3;
(b)Monies in all bank accounts in her sole name; and
(c)Furniture and household contents in her name, possession or control.
5.Subject to Order 2 above the husband retain the following assets for his sole use and benefit, free from claim by the wife:
(a)Motor Vehicle 2 motor vehicle;
(b)Any other vehicles held in his name;
(c)Any superannuation entitlement held in his name;
(d)Monies in all bank accounts in his sole name;
(e)Furniture and household contents in his name, possession or control.
6.Within 30 days of the date of these Orders, the Husband do all things necessary to remove the Wife’s name from the Vestri Family Trust, either as a trustee or beneficiary if such trust is still in existence. IT IS NOTED that the Wife asserts she has not signed any paperwork to set up this trust.
7.That save as otherwise provided for in these Orders:
(a)Each party shall be solely entitled to the exclusion of the other to all property (including chose-in-action) in the possession of such party as at the date of these Orders;
(b)Monies standing to the credit of a party in any bank account is to become the property of the party in whose name the account is registered;
(c)Each party shall forego any claim or claims the party may have to any superannuation, long service leave, redundancy, retirement, retrenchment and like benefits belonging to, or earned by, the other;
(d)Insurance policies remain the sole property of the owner named thereon; and
(e)Each party shall be solely liable for, an indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
8.That in the event either party refuses or neglects to execute any deed or instrument necessary to give effect to these orders, the Senior Judicial Registrar or Judicial Registrar of the Federal Circuit and Family Court of Australia shall be appointed pursuant to Section 106A of the Family Law Act 1975 (Cth), to execute such deed or instrument in the name of such party and do all acts and things necessary to give validity to the operation to the deed or instrument.
9.For the purposes of the above orders the Neilan Stramandinoli Family Law Practice Trust Account details are account number …86 and BSB …
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
These proceedings concern the settlement of property following the breakdown of the relationship between the applicant husband, Mr Vestri, and respondent wife, Ms Vestri.
Although the husband participated in the proceedings until shortly prior to the trial, he did so in a manner significantly non-compliant with his obligations, both in respect of disclosure and in respect of directions to file material for the trial. Having not filed trial material, despite repeated extension of time to do so, the husband failed to attend the trial. As observed in the judgment for the parenting proceedings, those matters justified proceeding on an undefended basis in respect of parenting. Similarly, when the property proceedings were called on, with no appearance by the husband, a determination was made to proceed on an undefended basis.[1]
[1] Vestri & Vestri (No 5) [2024] FedCFamC1F 256.
By her amended Case Outline document (Exhibit W1) the wife identified the pool of property that she asserts to be subject to the proceedings, at least so far as she could identify it given the husband’s non-compliance with his disclosure obligations. At the hearing the wife tendered evidence supportive of each of her contentions as to the pool. The wife further identified that of that pool she sought an overall division 80-20 in her favour, based in large part upon a disparity in contributions and in a divergence in their future prospects and obligations in respect of the support and care of their children.
The orders made reflect such a division of the identified property pool.
Documents relied upon
The wife relied upon the following documents:
(a)Minute of orders sought filed 19 March 2024
(b)Trial affidavit of the wife filed 19 March 2024
(c)Supplementary tender bundle filed 15 April 2024 (annexures to trial affidavit)
(d)Affidavit of Mr C filed 4 April 2023
(e)Affidavit of Ms E filed 19 March 2024; and
(f)Financial statement filed 19 March 2024
PRINCIPLES
The key to the exercise of jurisdiction in relation to the property of the parties is that it must be just and equitable, both to adjust the property interests at all[2] and to adjust them in a particular manner.[3] This requirement is one that permeates the whole of the decision-making process.
[2] Stanford v Stanford (2012) 247 CLR 108, 120 [35].
[3] Bevan & Bevan (2013) FLC 93-545, [86].
The necessary first step in consideration of whether it is just and equitable to make an order is to identify “according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property” (Emphasis in original).[4]
[4] Stanford v Stanford (2012) 247 CLR 108, 120 [37].
Consideration must be given to whether it is just and equitable to make any adjustment of those interests. Considering the pool of property identified below, that the end of the relationship marked the end of the parties’ long term cooperation in the acquisition of property and financial and other support of the family and that almost all the identified property currently sits in the control of the husband, this is a case where it is just and equitable to make a property adjustment.
The court is then to consider, in accordance with s 79 of the Family Law Act 1975 (Cth) (“the Act”), the various contributions made by the parties.
As was identified by the Full Court in Jabour & Jabour,[5] the assessment of contributions is the assessment of the myriad of contributions made throughout the relationship, in the light of their nature, form, context and circumstances, and the holistic evaluation of their significance.
[5] (2019) FLC 93-898.
The assessment of those contributions may incorporate a qualitative assessment based upon them being rendered significantly more arduous by the perpetration of family violence. When doing so the principles are those as set out in cases such as Kennon v Kennon[6] and Keating & Keating.[7]It was highlighted in Kennon, and reinforced in Keating, that imposing a circumstance of family violence upon a party to the relationship may lead to contributions being “significantly more arduous” and cause a “discernible impact” on the parties’ contributions.[8]
[6] (1997) FLC 92-757 (“Kennon”).
[7] (2019) FLC 93-894.
[8] Kennon at 84,294–84,295.
However, the assessment of such an impact should not be undertaken in a compartmentalised manner. In Benson & Drury,[9] the Full Court (Strickland, Watts & Austin JJ) said at [35]-[39]:
The central question raised by this appeal is how a judge takes into account the contributions of one party, found to have been made significantly more arduous by the conduct of the other, when assessing contributions under ss 79(4)(a)–(c) or ss 90SM(4)(a)–(c) of the Act. The answer is the primary judge must take a holistic approach. The contributions which have been made significantly more arduous have to be weighed along with all other contributions by each of the parties, whether financial or non-financial, direct or indirect to the acquisition, conservation and improvement of property and in the role of homemaker and parent. All contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder.
…
Although the use of the short-hand descriptor of a ‘Kennon claim’ is not of itself erroneous, it is liable to induce error because the issue is not a stand-alone claim, but is rather integral to the entire process. Nor is it helpful to refer to the issue as a ‘Kennon adjustment’ because that epithet invites treatment of the issue as an isolated claim for an additional share of the available property.
…
The error of segmentation and the comparative analysis of one feature of the evidence against all others befell her Honour in this instance.
(Citations omitted)
[9] (2020) FLC 93-998 (‘Benson & Drury’).
It is necessary, in support of the contention that the contributions were rendered more arduous, to establish the incidence and effect of family violence and, as was said in Keating at [39], “an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make the relevant contributions”.
As to the nexus, in Benson & Drury the Full Court said at [49]:
[I]t should now be clear that the required nexus between proven family violence and the significant adverse effect upon the contributions of the victim is capable of being inferred from the lay evidence of the parties.
(Citations omitted)
It follows that the fact of such an effect is one that may be drawn from the evidence as a whole, and may be inferred from the descriptions given by the parties, both of the fact of the family violence and the impact or effect that was visited upon the party.
The court is also required to consider the matters referred to in s 75(2) of the Act, which are predominantly future focussed.
Finally, the court is required to consider whether the particular result arrived at from this process remains just and equitable.
IDENTIFICATION OF THE POOL OF PROPERTY
The wife asserted the balance sheet as set out below. In support of the drawing of inferences based on the evidence provided by her about the pool of property that were unfavourable to the husband, the wife pointed to serious failures on the part of the husband in respect of his duties of disclosure.
That limited disclosure was in the face not only of the obligations cast upon the husband by the relevant Rules, but also by specific orders directed to disclosure. The wife has produced at Exhibit W11 repeated requests for disclosure. The husband has provided disclosure late, and not in full compliance with the scope set out in the orders, resulting, for example, in bank statements for B Pty Ltd not being produced until mid-March 2024.
A stark example of the husband’s non-disclosure can be seen at paragraphs 34–36 of the wife’s affidavit, where she describes the discovery that the husband, as at 31 January 2024 held approximately $2 million in an account held in the name of B Pty Ltd, a company wholly owned and controlled by the husband. The wife discovered such not by disclosure by the husband, but on the return of a subpoena to the relevant bank, being a subpoena prompted by the limited disclosure otherwise provided by the husband.
The above matter, when viewed against the background of tardy and incomplete production of disclosure supports a conclusion that the husband has been non-compliant with his duties of disclosure to a significant degree. That view is reinforced by the recent withdrawals identified later in this judgment, from October 2023, exceeding $1.7 million, which at present remain without explanation from the husband, under circumstances where compliance with his duties of disclosure could be expected to have provided such an explanation.
In the absence of adequate disclosure by the husband, the Full Court in Weir v Weir,[10] endorsed in Chang v Su,[11] provides guidance:
It seems to us that once it has been established that there has been a deliberate non disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.[12]
[10] (1993) FLC 92-338 (“Weir v Weir”).
[11] (2002) FLC 93-117.
[12] Weir v Weir 79,593.
In that context the wife identified evidence sufficiently supportive of each line item in the balance sheet extracted here, and exhibited as exhibit W10 in the proceedings, to establish its existence, as identified further below.
Ownership Description Applicant’s value $ Respondent’s value $ ASSETS 1 Joint Funds held in Neilan Stramandinoli Family Law Trust Account pursuant to Orders made 8 March 2024 $348,633.78 2 Husband Recent Cash withdrawals identified by Wife through Husband’s bank statements, as deposed in her Affidavit, pars 178, 179, 180, 181, 182(b) $1,702,545 3 Husband Motor vehicles registered in Husband’s name $132,000 4 Husband Purchases at D Pty Ltd, in September 2023, par 168 Wife’s Affidavit $201,758 5 Wife Funds Held in Trust for Wife, some spent on counsel fees and subpoena costs $20,000 6 Wife Wife’s bank accounts Nominal 7 Husband Husband’s interest in B Pty Ltd, future projects NK 8 Husband Husband’s other property NK Total $2,404,936 LIABILITIES 9 Wife Liabilities in Wife’s name incurred by Husband $6,097 Total $6,097 SUPERANNUATION Member Name of fund Type of interest Applicant’s value $ Respondent’s value $ 10 Wife Super Fund 1 (Wife requested Husband’s agreement for single expert valuation but no response received, valuation obtained) Defined benefit $241,082 11 Wife Super Fund 2 $3,348 12 Wife Super Fund 3 $6,820 Total $251,250 Total (assets – liabilities) $2,398,839 TOTAL (assets – liabilities + superannuation) $2,650,089 Funds held in Neilan Stramandinoli Family Law Trust Account
Exhibit W13 supports the conclusion that any funds held in the Neilan Stramandinoli Family Law Trust Account pursuant to Orders made on 8 March 2024 totalled $348,633.78, prior to the partial property settlement payment of $75,000 to the wife.
Cash withdrawals
The line item of $1,702,545 represents a series of withdrawals from the Australian and New Zealand Banking Group (ANZ) accounts ending …13 and …78 (a B Pty Ltd account), although not the total set of withdrawals made by the husband between October 2023 and 1 March 2024. Bank records post-dating this were not available for the trial in the absence of further updating disclosure by the husband.
By way of background, Exhibit W5 contained extracts of the ANZ accounts ending …13 and …78. The …13 account showed a balance in excess of $2,000,000 as at 22 January 2023.
Three sets of withdrawals and transfers were identified by the wife as comprising the line item.
The first set was also derived from Exhibit W5, being extracts of the ANZ accounts. The wife identifies a transfer of $544,510 in February 2024, and withdrawal on $885,015 in March 2024 (totalling $1,429,525) and each shortly following a deposit of a similar amount.
The second set was derived from a further three withdrawals across November 2023 ($102,510), December 2023 ($100,010) and February 2024 ($16,500) totalling $219,020.
The third set was derived from various other cash withdrawals shown by Exhibit W6, each of at least $5,000 between October 2023 and January 2024, being $5,000 in October 2023, $5,000 in October 2023, $20,000 in October 2023, $5,000 in November 2023, $9,000 in December 0223 and $9,000 in January 2023, totalling $53,000.
Together these amounts total $1,701,545 (an amount $1,000 less than expressed on the balance sheet).
These transactions, being a mix of cash withdrawals and transfers, demonstrate a sharp flow of the funds at the control and direction of the husband. Insofar as the transactions were upon the B Pty Ltd accounts, they, appear under the sole control and direction of the husband. The nature of this control is illustrated by the use of such funds for the purchase of Motor Vehicle 2 vehicle (described below) for the apparent personal use of the husband.
There is no cogent reason to consider that the husband has relinquished control over the identified funds. In the absence of disclosure or participation by the husband in the proceedings, and considering the comments in Weir as extracted above, as to not being unduly cautious in those circumstances when drawing inferences that favour the other party, it is appropriate to infer that what was under the husband’s control at the time of the transactions, remains under his control and constitutes a part of the pool of property available for property settlement.
Motor vehicles registered in the husband’s name
The wife relied upon various registration documents to establish the ownership of, and Redbook valuations to establish the value of Motor Vehicle 3 ($300 - $3,000), Motor Vehicle 4 (no value ascribed), Motor Vehicle 5 ($20,300 - $33,100), Motor Vehicle 1 ($41,900 - $57,750) and Motor Vehicle 6 ($51,900-$62,750). This, if accepted, left a range of values between $114,400 and $156,600 against the asserted value of $132,000.
Whilst the registration documents were sufficient to demonstrate the ownership of the vehicles by the husband, the Redbook valuations, while commonly relied upon by agreement in proceedings, were not admissible for the proof of the value by the opinions apparently expressed within them. The value to be ascribed to the vehicles is, in essence, the expression of an opinion. As tendered, the Redbook assertions as to range of value do not conform to the essential characteristics of an admissible opinion. Under the circumstances of the husband’s non-participation, it may be accepted that the wife had few options for the proof of value of the vehicles. However, that did not render the Redbook valuations as sufficient to make up that shortfall in evidence.
This leaves the position that the husband may be taken to own the vehicles, but at an unknown value.
Motor Vehicle 2
Exhibit W3 is an order form and contract dated mid-2023 for a private use Motor Vehicle 2 vehicle for the husband in the sum of $201,438.55. The purchase is further evidenced by transfers by the husband to D Pty Ltd on two dates in September 2023 in a sum totalling $201,758.91. The minor divergence in the sum transferred from the contracted amount is neither explained nor of consequence to undermine the conclusion that the husband acquired an asset of such nature at about that time for the transfer of that sum.
Motor Vehicle 2 should be taken to form a part of the property held by the husband. The most appropriate value to assign to the asset is, in the absence of further disclosure by the husband, and in application of the principles enunciated in Weir v Weir, the purchase price of the asset. To the extent that it might be thought that the car has decreased in value from the point of purchase, the purchase price remains the appropriate marker of value for a transaction that appears to be a premature distribution of property of a nature that would warrant a notional add-back in relation to any depreciation of value.
Fund held in trust for the wife
By orders of 8 March 2024 restraints were placed upon the husband from disposing of, transferring, encumbering or otherwise dealing with or permitting B Pty Ltd to deal with funds held in ANZ accounts, ending …78, …28 and …13, subject to written agreement or further order of the court. Further orders directed ANZ to cause 60 per cent of the funds held in those accounts to be transferred to be held in the trust account of the wife’s solicitors.
In accordance with the orders of 8 March 2024, the amount of funds transferred into the trust account was $348,633.78.
Inferentially the amount remaining in the restrained accounts equals 40 per cent of the restrained funds. Where 60 per cent equals $348,633.78, the remaining 40 per cent in the accounts equals $232,422.52.
This latter amount appeared to have been inadvertently omitted from the balance sheet. On recall of the parties in relation to this issue the wife identified that it should be included in the reckoning of the pool of property. Such amount should be included despite its absence from the balance sheet set out above.
A further amount of $20,000 had been deposited by the wife into the trust account at a prior date for the payment of legal expenses.
Wife’s bank account
The wife set out minimal funds in her bank accounts in her Financial Statement filed 19 March 2024.
Husband’s interest in B Pty Ltd
Exhibit W4 contains company searches sufficient to establish the husband as the sole director and shareholder of B Pty Ltd as at 6 March 2024. The value of B Pty Ltd is unknown, although through it, as revealed in the various bank statements, the husband has obtained access to significant funds, as exemplified in the various withdrawals identified above.
Husband’s property
The extent of the husband’s property is not apparent beyond what is identified in the balance sheet. In the absence of compliance with his disclosure requirements it is on the cards that the husband holds other property which is unable to be identified for the purpose of property adjustment.
LIABILITIES
Liabilities in wife’s name incurred by the husband
The wife sets out in her affidavit various debts incurred by the husband in her name for which she continues to bear responsibility, in excess of the amount of $6,097 recorded in the balance sheet.
Superannuation
The wife led evidence from Mr C to provide values of the wife’s most substantial superannuation entitlement, her defined benefit Superannuation Fund 1 account, at 25 March 2000, 21 July 2021 and 13 March 2024, corresponding to the commencement of the marriage, separation and the trial of the matter. Those values, as family law values as provided by the Regulations, were respectively $13,506, $206,108 and $241,082. The expert noted that on the information provided it was unclear whether the wife’s entitlement included a future pension option, but the valuation was provided on the basis that it does. The expert conceded that this formed an inflated valuation if there is no such entitlement. The wife also holds additional superannuation accounts totalling $10,168.
It may be observed that there is no application for a split in these proceedings and so the valuation is of limited significance. It may also be noted that as the wife is aged 47 her superannuation entitlements do not appear to be accessible to her for some time, and so do not have the quality of an asset immediately in her hands for disposal.
Conclusion as to the composition of the pool of property
The identified pool of property is as set out in the balance sheet, save as to two matters. The first is the recognition of the sum remaining frozen in the ANZ accounts of $232,422.52, a sum not otherwise included in the balance sheet, but the existence of which is certain. The second is the value of the vehicles at item 3. While the vehicles are undoubtedly of significant value, that value cannot be determined. The pool contains the vehicles but at an unascertained value. Accordingly, the value of the net pool should be determined at assets minus liabilities at $2,499,261, along with the wife’s superannuation interests in the sum of $251,250 (made up of the PSS account and smaller amounts in two other super funds), leaving a total net pool of $2,750,511, plus the fleet at an unascertained value.
One modification to that pool flowed from the final hearing of the property dispute at which time a partial property adjustment order was made in the wife’s favour, drawn from the sum held in her solicitor’s trust account in the sum of $75,000.
Contributions
The wife asserts that contributions should be reckoned at 55-45 in her favour.
Acknowledging that the husband made greater initial contributions, to the extent of about $100,000, the wife points to the lengthy nature of the relationship, at approximately 24 years, a compensation payment of about $100,000 received by her early in the relationship, her contributions toward the end of the relationship when the husband was incarcerated, and her post separation contributions particularly as directed to the care of the two minor children of the relationship, and the onerous nature of her contributions, made as they were in the face of persistent and serious family violence.
A high-level summary of the violence perpetrated by the husband upon the wife features numerous occasions of choking, threats to kill, including the placing of a knife at the wife’s throat, threats to kill the children, multiple instances of sexual assault and other physical assaults. These were committed in a context of ongoing verbal abuse. The wife further gives cogent evidence to establish instances of stalking by the husband following separation. Reasonably the wife describes that she was, and is, terrified of the husband. Although the bulk of the family violence described by the wife centred on the period leading up to and following the end of the relationship, the impact, described by her as terrifying, is one that weighed heavily upon the wife. Not only did it mean that her contributions took place under the burden of the terror that she experienced, but it compelled her to undertake particular contributions by taking steps designed to be protective of the children.
The wife’s contributions, financial, non-financial and to the welfare of the family, were rendered significantly more arduous.
Considering the differing nature and extent of the contributions of the parties supports a conclusion that they should be weighed, as submitted by the wife, 55-45 in her favour.
Section 75(2) considerations
The wife sought a further adjustment on consideration of the s 75(2) matters such that the overall adjustment by 80-20 in her favour.
This, given the husband’s non-compliance and non-participation, required broad brushstrokes to be applied to the husband’s circumstances. One of those was the evidence that indicated that the husband faced sentencing in the criminal courts in 2024 for a possession of drugs charge. The circumstances were insufficient to be suggestive that the husband’s ongoing circumstances might be compromised by a period of incarceration. Certainly, the husband may have been able to shed light on the circumstances in a manner suggestive otherwise. In the absence of such, there should be no jumping to a conclusion that the husband faces such compromise.
Rather, the longer-term description of the husband’s business pursuits by the wife, accompanied by the recent history of flows of copious sums of money at the direction of the husband, is suggestive that his ongoing economic prospects are ample, as exemplified by his recent cash acquisition of Motor Vehicle 2 for $200,000.
In contrast the mother retains, for a brief period the primary care of their 17 year old child, and for the long term the care of the parties’ 8 year old child.
She will do so in the face of difficult circumstances which hamper her prospects. One such circumstance is her legitimate fear for herself and the children at the hands of the husband, given the threatening and violent behaviour that he has engaged in in the past. As revealed in the conduct of the parenting aspect of these proceedings this has raised the ongoing prospect of taking concrete steps to conceal her and the children’s whereabouts from the husband, for example by change of name. The threats made by the husband included “the only way you will be leaving me is on a box.” The potential for the wife to take such steps may be considered reasonable.
The identification of these circumstances is not raised as a consideration of punishment of the husband, but rather of the fact of the compromise of the wife’s prospects into the future in respect of the impact on her prospects for gainful employment, the maintenance of a reasonable standard of living and in her maintenance of her role as parent.
As to the wife’s prospects more generally, her Financial Statement discloses, in addition to government benefits and Child Support payments, a limited income from her work in retail. Her ability to continue in that work has been rendered parlous by the husband’s ongoing stalking of her through that workplace following separation, and so her prospects there are also compromised.
The wife has commenced tertiary study. In the face of the circumstances that she faces it may be considered that her ability to complete such and reap the benefits in future employment are somewhat compromised. This uncertainty is illustrated by the wife’s pausing of her studies, in part due to the effects of the husband’s family violence upon her.
A further matter fuels the adjustment sought by the wife. The husband holds a fleet of vehicles on his side of the balance sheet. They may be considered to be valuable, although particular value cannot be assigned to them in this judgment. Effectively he will retain these items without any particular value being assigned to them. The recognition that he does so hold assets otherwise untouched by this judgment further supports the level of adjustment pursued by the wife.
The gross disparity in the parties’ prospects means, in particular in pursuit of a reasonable standard of living in all the circumstances, that an adjustment as sought by the wife to 80-20 is warranted by virtue of s 75(2).
Conclusion
Taking a step back and considering the results of such, where the net pool totals $2,750,511 (excluding the unvalued fleet of vehicles), an 80-20 division as sought by the wife results in her receiving property totalling $2,200,408 and the husband receiving property totalling $550,102, along with the fleet of vehicles. The wife currently holds $20,000 that she has paid into her solicitor’s trust account, $75,000 by way of partial property settlement and superannuation interests of $251,250. She also holds a debt of $6,097. Accordingly, her current net position is that she holds cash and assets to the value of $340,153. In order to meet the 80‑20 split, the wife must receive a further $1,860,255. That $1,860,255 will be comprised of the balance in the trust account of $273,633 (this being net of the $75,000 partial property settlement), the monies in the frozen accounts $232,422 and a further cash payment of $1,354,200. This amount may be expected to be taken from the $1,702,545 cash withdrawals retained under the control of the husband as identified in the balance sheet.
The husband would then be left with various cash reserves of approximately $350,000 (comprised of the various other withdrawals/transfers identified above) along with Motor Vehicle 2 and fleet of other vehicles. The significant disparity in their positions following judgment recognises the disparity in contributions, and the matters set out at s 75(2) and constitutes a just and equitable result in all of the circumstances.
In order for the wife to receive this amount, orders will provide for her to retain the monies currently frozen in her solicitor’s trust account and those frozen in the ANZ B Pty Ltd accounts. The husband will be required to make a further cash payment to the wife which he is able to do from the various other sums he has retained in his control.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 3 May 2024
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