Vurnik & Vurnik (No 2)
[2024] FedCFamC1F 34
•2 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vurnik & Vurnik (No 2) [2024] FedCFamC1F 34
File number(s): MLC 12678 of 2018 Judgment of: BENNETT J Date of judgment: 2 February 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – non‑appearance of a party – undefended hearing – where husband has not engaged in proceedings since 2019 – where husband has not communicated with the wife since 2018 – where husband has been accorded procedural fairness by service of documents by post pursuant to orders of the court.
FAMILY LAW – PROPERTY SETTLEMENT – alteration of property interests – consideration of add-backs – orders affecting an alteration of property interests whereby each party keep what they have except the husband’s interest in the private superannuation fund is transferred to the wife in its entirety – where the Court is satisfied that the orders are just and equitable and proper in their terms.
Legislation: Family Law Act 1975 (Cth) Cases cited: AJO & GRO (2005) FLC 92-218
Bevan & Bevan (2013) FLC 93-545
GVC v HPC (1998) FamCA 143
Marker v Marker (1998) FamCA 42
NHC & RCH (2004) FLC 93-204
SMB & MFB (2006) FamCA 46
Division: Division 1 First Instance Number of paragraphs: 122 Date of hearing: 14 March 2023, 13 July 2023, 25 January 2024 Counsel for the Applicant: Litigant in Person Counsel for the Respondent: No appearance ORDERS
MLC 12678 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VURNIK
Applicant
AND: MR VURNIK
Respondent
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
2 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The husband do such acts and things and sign all documents necessary to:
(a)resign as a member of the H Superannuation Fund; and
(b)transfer to the wife all of his right title interest and shareholding in F Pty Ltd as trustee of the H Superannuation Fund.
2.The husband do all acts and things necessary and sign all documents necessary to rollover his member entitlements in the name of the H Superannuation Fund to the wife.
3.For the purposes of paragraphs 1 and 2 of this Order, the husband shall sign and return to the wife any and all documents provided to him by email within three (3) days of being sent those documents.
4.For the purposes of paragraphs 1 to 3 of this Order, in the event the husband refuses or neglects to sign or return to the wife any documents required pursuant to paragraph 1 and 2 of this Order, a Registrar of the Federal Circuit and Family Court of Australia be appointed pursuant to Section 106A of the Family Law Act to sign the documents on the husband’s behalf.
5.For the purpose of paragraph 4 of this Order, it is sufficient proof of the husband having refused or neglected to sign documents if the wife files an affidavit sworn or affirmed by her deposing to having sent documents to the husband and that she has received no response.
6.The wife retain, to the exclusion of the husband:
(a)the property at D Street, Suburb B;
(b)monies in her bank accounts;
(c)her Motor Vehicle 1; and
(d)her superannuation entitlement.
7.Except as otherwise provided for in this Order: -
(a)each party retain to the exclusion of the other any real or personal property in their name or possession;
(b)each party retain to the exclusion of the other any superannuation benefit in their name noting the husband’s interest in the name of the H Superannuation Fund is to be rolled over and retained by the wife solely;
(c)each party be solely liable for and indemnify the other against any liability in their name or possession; and
(d)any joint tenancy of the wife and the husband in any real or personal estate be and is hereby expressly severed.
8.Paragraphs 8 to 16 inclusive are binding upon the wife in her capacity as a director and trustee of F Pty Ltd in its capacity as the trustee company of the H Superannuation Fund.
9.Pursuant to section 90XT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the interest in the Fund held by the husband, the wife shall be paid the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using the base amount, being 100 per cent of the husband’s entitlement, provided it shall not exceed the value of the interest determined under section 90XT(2) and there shall be a corresponding reduction in the entitlement the husband would have had in the H Superannuation Fund but for this order (the “rollover”).
10.The wife in her capacity as trustee and director of F Pty Ltd shall forthwith do all things necessary and sign all such documents as are required to:
(a)calculate in accordance with the requirements of the Act and the Regulations the Payment Split to be awarded to the wife in paragraph 9 herein; and
(b)pay the entitlement whenever F Pty Ltd makes a splittable payment out of the husband’s superannuation interest in the Fund.
11.Paragraph 8 to 16 inclusive take effect from the operative time.
12.The operative time is the date of this Order.
13.Service of this Order upon F Pty Ltd shall be deemed to have occurred on the date of this order by reason that the wife is the sole director and trustee of F Pty Ltd and the Court notes that service will enliven the operating standards under Part 7A of the Superannuation Industry (Supervision) Regulations 1994 (Cth).
14.Upon compliance with paragraph 9 of this Order, the wife indemnify and shall keep the husband indemnified against all liabilities of and in relation to the fund including taxation payable in respect of the H Superannuation Fund and all other liability of, or howsoever arsing in relation to, the H Superannuation Fund.
15.Prior to the rollover, the wife in her capacity as a director of the trustee forthwith do all such things and sign all such documents as necessary to ensure that the H Superannuation Fund is compliant with its financial and taxation obligations as at that time.
16.Contemporaneously with the rollover the husband to transfer to the wife any shareholding he may have in the trustee company.
17.Liberty is reserved to each party to apply in relation to implementation of this Order.
18.All extant applications be dismissed and the matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.
AND THE COURT NOTES THAT:
A.Pursuant to Section 81 of the Family Law Act 1975, these Orders shall, as far as practicable, finally determine the financial relationship between the parties and avoid further proceedings between them.
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
BENNETT J
INTRODUCTION
This financial proceeding comprise the wife’s application for alteration of property interests and are unopposed by the husband. The wife is a self-represented litigant. There is no appearance by or on behalf of the husband. The husband has not filed any evidence in these proceedings. This matter is determined solely on the wife’s evidence as contained in affidavit material and exhibits all of which have been served on the husband.
The wife is 54 years old having been born in 1969. I will discuss her employment history later in these reasons but she is currently an educator earning $112,000 per annum.
The husband is 53 years old having been born in 1969. I will discuss his employment history later in these reasons. The wife believes that the husband last worked in 2015. The wife does not know that husband’s whereabouts.
Applying the relevant legal principles to the facts of this case, I have determined that there should be an alteration of property interests in the proportions of approximately 72 per cent to the wife and 28 per cent to the husband on current values. This means that each party retains what they now have by way of non-superannuation assets and the husband’s interests in the parties private superannuation fund is transferred to the wife.
THE RELATIONSHIP & WHEREABOUTS OF THE HUSBAND
The parties met in 1992 and commenced a relationship in 1992. They were both 23 years old. The parties married and commenced cohabitation in 1995. In the period 2015-2018, the husband was living only part time in the family home at D Street, Suburb B and did not contribute to all family expenses.
Separation on a final basis occurred in February 2018 following an incident in which Suburb B Police attended the family home to investigate a family violence complaint made by the wife. The husband fled the house and did not return.
There are two adult children of the marriage.
(a)Ms M was born in1998. She is now 25 years old. Her first employment was in sales. In 2022 began working for P Company and continues in that employment.
(b)Mr N was born in 1999. Mr N studied at Q University. He graduated in 2022 as a project manager and is currently employed in that field.
Both children reside with the wife at the matrimonial home in Suburb B and have done so since separation. The wife has supported the children both emotionally and financially since the separation with no assistance from the father. Both children are currently employed. The wife continues to pay the bills for their household and for household shopping. The Suburb B property is registered in the wife’s name as sole proprietor.
The parties are not divorced.
The wife has not re-partnered. The wife does not know if the husband has re-partnered.
The wife’s initiated the property proceedings by way of an application for property settlement filed on 1 November 2018. On 25 March 2019 the husband filed a notice of address for service, which is the only document provided by the husband on the court file.
Save for his appearance on 25 March 2019, the husband has failed to participate or engage in these proceedings.
The wife’s last contact with the husband was in 2019 when he signed documents for the sale of the property at K Street, Suburb L (the “Suburb L property”), pursuant to a Court Order. The wife and her daughter met the husband outside the Suburb J property and he signed the documents and left.
The wife has made enquires of Victoria Police as to the husband’s whereabouts. The first welfare check was conducted in December 2019. The police attended G Street, Suburb J, a property owned by the parties through their superannuation fund, and where the wife understood the husband to be staying. The wife had left notes at the door previously asking for the husband to contact her but had received no response. Police entered the property by the window to complete the welfare check and spoke to neighbours but did not speak to the husband. The next day, the parties’ daughter, Ms M, went to the property and left a note for the father, as follows:
Dear [father], can you please contact me or [Mr N] as we have no idea where you are. We have called and come to [Suburb J] every day and you are nowhere to be seen. We are really worried about you and want to see you. We haven’t had contact with you for so long. [Mr N] and I are really stressed and unhappy. We want to see you, you are our Dad and we want to see you for Christmas and take you to lunch if you want. So please call me, [04…]. Come to our house, Mum won’t be home. I will be waiting for you to come tomorrow. I have taken the morning off work. Please come tomorrow, Monday […] December. I have taken the morning to wait for you. Do not let me and [Mr N] down. Thanks, [Ms M].
IF YOU PREFER CALL ME AND I’LL PICK UP.
The attempts to contact the husband are dealt with in the wife’s affidavit affirmed 9 August 2020.
The husband’s mother passed away in 2020. The uncle and grandfather spoke to the wife about his mother’s estate and there was limited correspondence between the wife and the brother’s solicitor. The husband and his brother Mr R were executors of the will. The husband’s mother had left her estate to the husband and his brother Mr R as the husband’s father and his only other sibling, a sister, were deceased. The husband’s brother did not respond to the wife’s requests for information about the husband’s entitlement under the will or whether he had contacted the brother following his mother’s death. The wife caused a subpoena to issue in these proceedings directed to the husband’s brother seeking information about the Estate but the brother failed to respond and the wife did not press the subpoena. The wife’s evidence was that, based on conversations with her brother in law, the husband’s interest in his mother’s estate was conservatively $110,000.
The wife again attended police in September 2021, this time at the Suburb B Police Station. Three days later police made contact with the husband but he did not make any further contact with the wife. The police notes, Exhibit C1, record that “all appears correct”.
The wife prepared her case carefully and had a number of adjournments to allow her to obtain documents and to put her evidence in order. The wife deposes, and I accept, that she has sent all affidavits and amended applications to the husband at …@...which she believes, and I accept, is the husband’s most recent email address.
The following Affidavits of Service, evidencing her service of various court documents on the husband:
(1)7 December 2018;
(2)15 February 2019;
(3)28 August 2020;
(4)22 October 2020;
(5)3 November 2020;
(6)16 November 2020;
(7)13 April 2021;
(8)29 April 2021;
(9)8 December 2021;
(10)17 December 2021;
(11)21 October 2022;
(12)25 May 2023;
(13)29 May 2023;
(14)30 June 2023;
(15)4 July 2023;
(16)15 December 2023.
The husband has not provided any financial disclosure in these proceedings. He attended Court on 25 March 2019 and filed a Notice of Address for Service. The husband did sign documents to facilitate the sale of the Suburb L property but otherwise has not engaged in the Court proceedings.
I am satisfied that the wife has done all that she can do to contact the husband, as has their daughter.
The husband has had knowledge of return dates of the proceedings by virtue of the documents served by the wife as sworn to by her. As he was on notice of the proceedings generally, the husband could also have searched the Commonwealth Courts Portal via
HISTORY OF THE PROCEEDINGS
The application for final alteration of property interests was initiated by the wife's application filed on 1 November 2018. The wife there sought an un-particularised alteration of property interests, asking to be excused from particularising the precise orders of "pending financial disclosure by the husband". She also sought "that there be a splitting order with respect to the parties' respective interests in the [H Superannuation Fund]” and “the Applicant be excused from particularising the precise orders sought by her as to superannuation pending a sale of the property owned by the fund and its conversion into cash and financial disclosure by the husband."
In the initiating application filed 1 November 2018, the wife also sought a raft of interim procedural orders including the sale of the real properties known as K Street, Suburb L (the Suburb L property) and G Street, Suburb J (the Suburb J property). On 3 November 2020, the wife filed an amended initiating application in which the final orders sought remain the same, but there is an alteration to the interim procedural orders sought.
The history of non-participation by the husband is extensive and I set out the history of the proceedings in the context of whether procedural fairness has been accorded to the husband. The first return date of the proceedings, which were instituted in the Federal Circuit Court, was on 12 December 2018 before Judge Riley. Mr Easteal, counsel, appeared for the wife. There was no appearance by the husband, and the matter was adjourned for the documents to be served on the husband. They were, in due course, served on the husband by the wife’s solicitor James McDermott at his practice on 12 February 2019.
The proceedings were returnable on 11 February 2019, again, before Judge Riley. On that day Mr McDermott, solicitor, appeared for the wife but there was no appearance by or on behalf of the husband. The matter was then adjourned to 25 March 2019 for an interim hearing and the wife was directed to serve the Order of 11 February 2019 on the husband personally, affected on 12 February 2019.
On 25 March 2019 the wife was represented by Mr McDermott, her solicitor, and the respondent husband appeared in person. On my reading of the court file, this is the only occasion on which the husband has participated in the proceedings by attending Court. On that day he also filed a notice of address for service. That is document 9 on the court file. It specifies G Street, Suburb J (the Suburb J property) as his address for service. His telephone number is specified as 04… and his email address is …@.... On 25 March 2019, the matter was adjourned for an interim hearing on 30 August 2019 at 10:00am. Other orders were also made by consent, which provided for a sale of a property owned in the joint names of the parties at the Suburb L property, with provisions for the marketing of that property and an application of the proceeds of sale of the property. It was ordered that by 25 April 2019 the respondent husband file and serve;
(a)a response,
(b)a financial statement and
(c)any affidavit upon which he seeks to rely.
The husband failed or neglected to comply with that order for filing documents.
It was also ordered that the parties would attend a private mediation with an agreed meditator in August 2019 and pay equally for the cost of the mediator convening the mediation. No such mediation has taken place. The husband did not comply with any orders made on 25 March 2019. That was the first and last day the husband has appeared in court.
Pursuant to the order of 25 March 2019, the Suburb L property was sold. The wife's affidavit material sets out her preparation of the property for sale and her application of the proceeds of sale and the fact that she incurred significant expenses in readying the property for sale, which expenses she deposes enhance the value which was ultimately achieved for the property but in respect of which she has not been reimbursed. I will deal with that material in the context of contributions.
As deposed by the wife in paragraph 21 of her 19 August 2020 affidavit, the husband has not had any contact with any family and friends since the separation. The children and the wife had been very concerned about his welfare, but all attempts to contact him had been unsuccessful. The parties did not have a valid contact number nor address details. Up to December 2019, many attempts were made by leaving endless notes over a period of time pleading for him to make contact with his children and or herself to try to settle the separation amicably. Welfare checks were conducted by police officers at Suburb S Police Station by way of forced entry into the Suburb J property as the wife did not have access at the time.
The husband is on notice, by virtue of the original initiating application and the last page thereof, served on him in person on 12 February 2019, that in the event that he does not attend court "orders may be made in [his] absence". The same notice appears in the wife's amended applications filed 3 November 2020.
On 10 November 2020 I delivered ex tempore reasons for judgment and made orders granting the wife management of the Suburb J Property, which is the primary asset of the H Superannuation Fund. The husband again did not attend court. My reasons appear as Vurnik & Vurnik [2020] FamCA 1007. I incorporate those reasons into these reasons.
This proceeding returned before me on 2 February 2023 I made orders fixing these proceedings for final hearing on 22 May 2023 as an undefended and unopposed determination of the wife’s Amended Application for Final Orders filed on 12 October 2022. The final hearing date was vacated upon application being made to the court by the wife, returnable before a Judicial Registrar on 12 May 2023.
On 13 July 2023 I adjourned the matter to 29 August 2023. The matter was again adjourned to 1 December 2023 and by way of orders dated 23 November 2023 adjourned once more due to judicial unavailability to 18 January 2024. In my Chambers Order dated 23 November 2023, the following notation also appeared:
AND IT IS NOTED BY THE COURT that, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.
APPLICATION FOR DETERMINATION
The application for determination by me today is the wife’s further amended initiating application filed 23 June 2023.
The wife seeks the following final orders be made:
(1)The Respondent do such acts and things and sign all documents necessary to:
(a)Resign as a member of the H Self-Managed Superannuation Fund
(b)Transfer the Applicant all of his shareholding in the name of F Pty Ltd as trustee of the H Self-Managed Superannuation Fund.
(2)The Respondent do all acts and things necessary and sign all documents necessary to rollover his member entitlements in the name of the H Superannuation Fund to the Applicant wife.
(3)For the purposes of [paragraphs] (1) and (2) [of these Orders] the Respondent shall sign and return to the applicant any and all documents provided to him by email within 3 days of being sent those documents.
(4)For the purposes of [paragraphs] (1) to (3) [of these Orders], if the Respondent refuses or neglects to sign or return to the applicant any documents required pursuant to Orders (1) to (3), a Registrar of the Federal Circuit and Family Court of Australia be appointed pursuant to Section 106A of the Family Law Act to sign the documents on the Respondent’s behalf.
(5)The Applicant retain, to the exclusion of the Respondent:
(a)The property at D Street, Suburb B;
(b)Her bank accounts;
(c)Her Motor Vehicle 1
(d)Her superannuation entitlement.
(6)Except as otherwise provided for in these orders
(a)Each party retain to the exclusion of the other any real or personal property in their name or possession.
(b)Each party retain to the exclusion of the other any superannuation benefit in their name noting the Respondent’s interest in the name of the H Superannuation Fund is to be rolled over and retained by the Applicant solely.
(c)Each party be solely liable for and indemnify the other against any liability in their name or possession.
(d)Any join tenancy of the applicant and the respondent in any real or personal estate is hereby expressly severed.
(7)Any other orders the Court sees fit.
She also seeks a notation that “pursuant to s 81 of the Family Law Act it is intended that these Orders shall as far as practicable finally determine the financial relationship between the parties.”
The husband has not been accorded procedural fairness of the splitting order in relation to superannuation in his capacity as trustee of the H Superannuation Fund. The husband has notice of the effect of the splitting order in the wife’s application which seeks a transfer of all of his entitlement in the H Superannuation Fund to be transferred to her. The notice from the Australian Taxation Office dated late 2023 and extracted at [66] below makes it clear that, at least from that date, the husband was not competent to act as a responsible officer or trustee of the H Superannuation Fund. Accordingly, I do not require that he be given notice of the particular splitting order, particularly as he already has notice of the effect of it in his personal capacity.
THE LAW
The court has to be satisfied that it is just and equitable to make a final order for alteration of property interests. Secondly, it must be satisfied that the terms of any order it makes are proper within the meaning of the legislation.
Section 79 of the Family Law Act 1975 (Cth) (“the Act”) defines the Court’s responsibilities in determining applications for property settlement. First, I am required to identify, to the extent that there is evidence that enables me to do so, the legal and equitable interests of the parties in property. Property includes superannuation interests. Second, I must be satisfied that it is just and equitable, within the meaning of s 79(2), to make an order altering the interests of the parties in property. If I am not satisfied (which is not the case here), the property application would be dismissed. Third, I will assess the contributions made by the parties as defined in section 79(4)(a) to (c). That is, direct or indirect, financial and non-financial contributions to property and contributions as a homemaker and to the welfare of the family. Fourth, I will consider the effect of any proposed alteration of property interests on the income earning capacity of either party within the meaning of s 79(4)(c). Fifth, I will consider the matters contained in section 75(2) in so far as they are relevant. By virtue of s 75(2)(o), the matters include any fact or circumstance which, in the opinion of the Court, the justice of the situation requires be taken into account shall be taken into account. In this case, that includes add backs. Finally, I must be satisfied that, in all of the circumstances, the order which I propose to make is just and equitable within the meaning of s 79(2) of the Act and appropriate within the meaning of s 79(1).
EVIDENCE
The wife was the only party to give evidence in the proceedings and did so by way of affidavits in respect of which she made submissions.
The wife relied on the following documents:
(a)further amended initiating application filed 23 June 2023;
(b)updated financial statement filed 23 June 2023;
(c)her consolidated trial affidavit filed 26 June 2023;
(d)her further affidavit annexing the property valuation for G Street, Suburb J filed 25 May 2023;
(e)her further affidavit annexing the property valuation for D Street, Suburb B filed 30 June 2023;
(f)a further affidavit sworn 17 November 2023 in relation to superannuation.
The wife impressed me as fair-minded and prepared to make relevant concessions. Her evidence was well ordered, supported by appropriate documentation and plausible. I accept the wife’s evidence.
ONUS OF PROOF AND FINDINGS OF FACT
Section 140 of the Evidence Act 1995 (Cth) provides the relevant test for the court’s assessment of evidence in this matter: the facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities.
A statement of fact is a finding of fact.
RELEVANT BACKGROUND
The husband and wife met in 1992. The husband was 23 years old and living in Sydney at the time, supporting himself as his parents lived in Queensland. He was completing a five-year contract as a technician. He moved to Melbourne in August to pursue a relationship with the wife who was living in Suburb T with her parents and working as an educator.
At the commencement of the relationship, the husband had an old car and very little money. He was living with a friend, in Suburb U, rent free for a short amount of time. The husband obtained a job at a company in Suburb V for a brief time. He then moved into a share accommodation in Suburb B, where he was paying a small amount of rent.
The wife, who was also 23 years old and was employed as an educator, had savings at the time, a relatively new car which the wife had purchased outright and a one-half interest in a property at D Street, Suburb B (“the Suburb B property”). Prior to the marriage the wife lived with her parents at the Suburb B property which the wife and her father purchased together in 1990 as tenants in common for $175,000.
The husband and wife purchased their joint property at Suburb L in 1994 for around $150,000. The property was registered in both their names as joint tenants. The husband and wife paid equal shares for the 10 per cent deposit of around $15,000 along with loan repayments. The husband lived in the property on his own for approximately six months prior to marriage, as the wife’s family expected her to live with her parents in their family home until marriage. Prior to their marriage, the wife spent a lot of time with the husband at their joint home in Suburb L but did not stay there overnight.
The husband and the wife were married in 1995 and commenced living together at the Suburb L property.
The wife’s parents continued living in the Suburb B property until 1997. The loan repayments on the Suburb B property were paid by the wife and her father. The wife was working as an educator, as well as having a part-time job in retail which she worked on the weekends. The wife was also working privately after hours during the week. Her workload was directly attributable to her need to assist with the loan repayments for the Suburb B property. The wife’s father gifted his share in the Suburb B property to her in 1997. This property was unencumbered by mortgage at that time. At this time, the wife’s parents had both retired and returned to live at their property, located in Suburb W. Approximately six months later her father was diagnosed with an illness and died within six months of the diagnosis, in 1998, at the age of 63. The wife’s mother continues to live in Suburb W. She is now 82 years old.
The husband and the wife had their first-born child, Ms M, in 1998. The wife was also the sole carer for her recently widowed mother during Ms M’s infancy. The parties’ second born, Mr N, was born in 1999.
The wife deposes that she did not take extensive maternity leave as the husband and the wife were paying off their mortgage over the Suburb L property at the time of Mr N’s birth. By mid‑1999 the wife went back to work as an educator while her mother (the maternal grandmother) looked after both children. The wife’s workplace was across the road from her mother’s house in Suburb W. The wife went to her mother's house during her lunch breaks to nurse the children, check on them and on her mother.
The husband and the wife both worked to pay off loan repayments against their mortgage for their property in Suburb L. Due to extra commitments at her work, the wife deposes that her routine throughout the early lives of the children was to work from 6.30am to 6.00pm, return to the maternal grandmother’s house to nurse the children and then finally return to the property shared with the husband. The wife gave evidence that the husband also worked long hours at the time but did not contribute equally in respect of the children, stating that he often arrived home after they went to sleep.
In about 2000, the husband began renovations at the Suburb L property. Most of his spare time was spent renovating a cellar which he dug out in their garage area. The renovations were never completed.
In 2007 the parties settled the purchase of the property at G Street in Suburb J. The property was purchased in the name of the H Superannuation Fund. The purchase price was $750,000 and it was unencumbered. This became a further renovation project for the husband which was never finished.
The wife’s work history
The wife completed a degree at X University in 1989. The wife worked in retail and did private work while studying at university. She started her first job as a casual worker in retail at the age of 15 during high school years. Despite a brief period between 1998 and 1999 in which the wife was taking maternity leave, she worked either on contract or full-time until 2007. From 2007 to 2010 the wife was engaged in part-time education to assist with the husband’s business and cared for the children. She worked casually in early 2011 and then returned to a full-time contract. The wife has been in her current employ for about 7 years. Her net income from her employment at the time of separation was $1,900 per week. The wife does not have any other income.
The husband’s work history
As per paragraph 9 of the wife’s 1 November 2018 affidavit, the husband worked in the building industry from approximately 2002 through to the end of 2015. During that period he worked as an employee for several entities. During the same period he also worked as a self‑employed tradesperson through two businesses which he established and ran himself, namely being Y Company and Z Pty Ltd. the wife assisted with paperwork and administration in the running of those businesses from time to time, however the wife does not have a detailed knowledge of the financial positions of either of them.
The husband ceased paid work at the end of 2015. The wife further deposes that the husband’s income for the financial year ending 30 June 2015 was $116,708 according to taxation documents that he left at the Suburb B property. The wife deposes that the husband had not provided any financial assistance to the wife or their children since September 2017.
Superannuation Interests
Superannuation is treated as if it were property under the Family Law Act with special provision made for it being property which is held on trust, within the terms and control of the fund and the powers of the trustees.
Each party contributed to superannuation, with industry or commercial funds as well as through the H Superannuation Fund.
The wife contributed to the superannuation scheme for her employer. It was originally called Superannuation Fund 2 and has now been transferred to Superannuation Fund 3. Her personal balance as at 30 June 2023 was $115,282.92.
The husband contributed to Superannuation Fund 4 and as of 30 June 2023 his superannuation interest was $66,275.15. The husband also contributed to Superannuation Fund 5 and as of 30 June 2023 his member balance was $23,379.99.
The wife has been in extensive discussion with the Australian Taxation Office (ATO) in relation to the H Superannuation Fund, with particular reference to non-compliance occasioned by acts or omissions of the husband. The major asset of the H Superannuation Fund is the property at G Street, Suburb J. The husband and the wife were both directors and trustees of F Pty Ltd, the corporate trustee of H Superannuation Fund until the husband’s disqualification as a director in late 2023. The wife has obtained an up-to-date valuation of the G Street property at $1,000,000 and has annexed the statement of financial position of the H Superannuation Fund as at 30 June 2023 to her affidavit made on 17 November 2023. The total assets available to pay benefits is $1,148,009.
The wife has recently been informed by the ATO that:-
(a)the husband is disqualified as a trustee;
(b)the ATO has contacted the husband and there is no further requirement for the wife to report other than to send a copy of the final Orders made by this Court affecting the H Superannuation Fund;
(c)there are currently no penalties imposed on the fund but it will be audited in the future.
At MSV5 of the wife’s affidavit affirmed on 17 November 2023, the wife has annexed the ATO’s notification of a disqualified person under the H Superannuation Fund. The correspondence commences:-
Dear Trustee,
We have disqualified a former responsible officer of your self-managed superannuation fund (SMSF) under superannuation law. We have let [Mr Vurnik] know that we have disqualified them.
A disqualified person cannot act as a trustee of a superfund. They also cannot act as a responsible officer of a body corporate that is a trustee of a superfund. If they do, we can charge them 60 penalty units or they could get 2 years in jail.
…
What happens next?
You have three options. You can either:
•Keep the fund as a SMSF with less members and responsible officers of a corporate trustee;
•Restructure the fund into a superfund regulated by the Australian Prudential Regulation Authority. This means that a disqualified person can stay as a member of the fund.
•Wind up your fund.
The fund will stay as a SMSF that we regulate until a registered superfund licensee is appointed.
We are aware of your ongoing Family Court proceedings and the impacts this may have on your ability to progress the administration of the fund.
…
The wife proposes to keep the H Superannuation Fund as a self-managed superannuation fund with only herself as a member and responsible officer/trustee.
IDENTIFICATION OF THE LEGAL AND EQUITABLE INTERESTS OF THE PARTIES
The property at Suburb B was valued by registered valuers AA Valuers. The valuation report is annexed to the wife’s affidavit of 30 June 2023. The property is assessed to be valued at $1,250,000 on the basis of fair market value at present condition and on a vacant possession basis.
The major asset of the H Superannuation Fund is the property at G Street, Suburb J. The wife has obtained an up-to-date valuation of the G Street property at $1,000,000.
Add backs
The wife seeks addbacks against the husband. Add-backs are a matter considered pursuant to s 75(2)(o) of the Family Law Act 1975 (Cth). I will deal with them now so that my findings can be incorporated in a table with my other findings in relation to the legal and equitable interests of the parties.
A commercial property at BB Street, Suburb W was purchased in 2010 for around $500,000 on behalf of Z Pty Ltd, a company controlled by the parties. The deposit was contributed equally by the parties. The balance of $420,000 was provided by way mortgage from CC Bank. The property was sold in 2015 for over $750,000. The net proceeds of sale amounted to $279,288.86. The husband took sole control of the net proceeds which were paid into an account accessible only by him to the exclusion of the wife. Without reference to the wife the husband then made certain purchases of containers for his machinery, tools and other assets which were ultimately moved to another warehouse at DD Street, Suburb EE. As best the wife knows, all the husband’s professional tools and equipment and multiple shipping containers of items remain at the Suburb EE property, which is owned by a mutual friend. The equipment has not been valued but the wife believes it would have a positive market value if it has been appropriately stored.
The wife seeks the husband be solely entitled to his belongings at the Suburb EE property as between himself and herself but seeks an add-back of the net proceeds of sale of the Suburb W commercial property in the sum of $279,288.86. The receipt of the husband of the net proceeds of sale of the BB Street property coincided with him ceasing work and ceasing to make any regular financial contribution to the household, in circumstances where he was not living full‑time with the family and was coming and going for days at a time.
The second add-back the wife seeks is $128,000 representing funds removed by the husband from the parties’ then private superannuation fund and retained for his sole benefit. The husband withdrew these funds after separation and without reference to the wife. In order to render the self-managed superannuation fund compliant for Australian Taxation Office purposes, the wife had to reconstitute H Superannuation Fund at her own organisation and expense.
The law in relation to add backs is settled so I will mention just a few of the authorities.
In GVC v HPC (1998) FamCA 143 the Full Court comprising Nicholson C J, Ellis & Kay JJ) stated at [46]:
Whilst not seeking to place a fetter upon the exercise of discretion of a Trial Judge in individual cases, it seems to us that the concept of adding monies reasonably disposed of back into the pool, ought be the exception rather than the rule. The parties are entitled to reasonably conduct their affairs post separation in a manner that is consistent with properly getting on with their lives.
In this case, Ms Vurnik submits that the husband’s retention of the net proceeds of sale of the property at BB Street (being $279,288.86) and the withdrawal of $128,000 from the private superannuation fund was not reasonable nor consistent with the husband’s property not “properly getting on” with his life. The wife contends that the husband’s actions removed $407,288.88 from the legal and equitable interests to which the wife contributed, directly and indirectly, and which would, otherwise, be available to be adjusted between the parties.
In the decision of Marker v Marker (1998) FamCA 42, the Full Court, comprising Baker, Kay and Chisholm JJ observed;
There seems to be no appropriate basis for notionally adding back monies that existed at separation but which have been subsequently spent on meeting reasonably incurred necessary living expenses. Neither the Family Law Act nor the case law requires that parties go into a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements. Parties are entitled to continue to provide for their own support. Whether any expenditure so incurred is reasonable or extravagant is a matter that can be determined by the Trial Judge.
This was quoted by the Full Court, comprising Finn, Kay and May JJ in NHC & RCH (2004) FLC 93-204 at 79,314. Here, there is no evidence of the husband’s actual living expenses, whether those expenses were “necessary” or indeed whether they were “incurred”. I am not prepared to treat the totality of the amount claimed by the wife, $407,288.88 as monies which were necessarily applied by the husband to his own support. I have already accepted the wife’s evidence to the effect that he accumulated many items and containers with some of the funds and that those items were acquired without consultation with the wife and are retained by him or are otherwise under his control.
In AJO & GRO (2005) FLC 92-218 the Full Court comprising Holden, Warnick and Le Poer Trench JJ stated, in effect, that there were three clear categories of cases where the court had determined that it was appropriate to notionally add back to the property to be divided between the parties. First, were where the parties had expended money on legal fees. Second, where there had been a premature distribution of assets which were divisible between the parties. Third, where one of the parties have undertaken reckless investments or deliberately set out to diminish the value of the divisible assets. In relation to legal fees, their Honours stated at [30]:
To date, three clear categories of cases have emerged where the Court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a)Where the parties have expended money on legal fees. In DJM and JLM (1998) FLC 92-8l6 the Full Court said at 85,262:
"11. 6For reasons set out in Farnell, s 117 provides that each party to proceedings under the Family Law Act shall bear their own costs unless the Court otherwise orders. Failing to add back monies expended by parties on costs frequently has the effect of defeating the policy of s 117 by permitting the pool of available assets for distribution between the parties to be diminished by any monies that either of the parties have managed to spend on their costs up to the date of trial. We are of the view that the normal approach ought be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought normally be spelt out. "
In relation to premature distributions, their Honours stated:
(b)Where there has been a premature distribution of matrimonial assets. In Townsend and Townsend (1995) FLC 92-569 Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at 81,654:
"In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband's receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly."
In relation to reckless and wanton expenditure, their Honours stated:
(c)In the circumstances outlined by Baker J in Kowaliw and Kowaliw (1981) FLC 91-092 at 76,644:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a)where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b)where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec 75(2)(0) to applications for settlement of property instituted under the provisions of sec 79."
In AJO & GRO’s case, the Full Court went on to observe “[as] the Full Court said in Browne v Green (1999) FLC 92-873 at 86,360:
"We agree with her Honour that the principles stated by Baker J in Kowaliw certainly do not constitute any form of fixed code. They are no more than guidelines for use in the exercise of the discretionary jurisdiction conferred by s 79 of the FamilyLaw Act 1975. Nevertheless, they have over the considerable period of time since they were enunciated, become a well accepted guideline in this jurisdiction - a guideline the use of which assists in the achievement of the important goal of consistency within the jurisdiction. "
In SMB & MFB (2006) FamCA 46 the Full Court, comprising Bryant C J, Kay & Warnick JJ, held at [71]-[72]:
In the present case, no finding was made by the Trial Judge that the Wife had either embarked on a course of conduct designed to minimise the value of the matrimonial assets, or that her expenditure was reckless, wanton or negligent.
Thus, we think that there is a fundamental flaw in the pool created by the Trial Judge which included a notional addback of the monies that the Wife had received on account during the hearing. Absent any negative finding about the Wife’s expenditure which she had detailed in her Affidavit and which she asserted to be her reasonable annual expenses, we cannot see any basis upon which His Honour ought reasonably to have added back the sum of $102,500.00 to the asset pool.’
In Cerini [1998] FamCA 143 the Full Court, comprising Nicholson CJ, Ellis and Kay JJ observed that it will be “the exception rather than the rule” that a direct dollar adjustment equivalent to the amount of the alleged dissipation of the pool is made to the otherwise entitlement of a party. In Bevan & Bevan (2013) FLC 93-545 the Full Court comprising Bryant CJ, Finn and Thackray JJ said the following about add backs at [79]:
We observe that “notional property”, which is sometimes “added back” to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them,” and thus is not amenable to alteration under s 79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage – and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s 79(4) and in particular s 75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property” things.
My conclusion in relation to all the add-backs is that both sums represented premature distributions of property to the husband. However, the money came in at times when the husband was apparently not in remunerative employment. To the wife’s knowledge he was not working but he might have been deriving an income nonetheless. I consider it proper for the husband to be regarded as having needed about a third of the funds, $136,000 or thereabouts, for his support over the last eight years. Accordingly, he will be credited as having received the balance of the funds by way of an add back taken into account in the assets divisible between the parties.
Having regard to the evidence, the below table details the legal and equitable interests of the parties as I find them to be (inclusive of add backs).
Description Ownership Wife’s value ($) Husband’s value ($) Court’s finding on value to be attributed as between the parties ($) Non-superannuation assets Suburb B Property Wife 1,250,000.00 N/A 1,250,000.00 Car Wife 24,000.00 N/A 24,000.00 Bank Account Wife 16,300.00 N/A 16,300.00 Tools Husband 100,000.00 N/A 100,000.00 Inheritance Husband 110,000.00 N/A 110,000.00 Bank Account Husband Unknown N/A Unknown Total non-superannuation assets 1,500,300.00 1,500,300.00 Superannuation interests H Superannuation Fund – Self Managed Super Fund Wife 252,234.00 N/A 252,234.00 H Superannuation Fund – Self Managed Super Fund Husband 895,775.00 N/A 895,775.00 Superannuation Fund 3 Account Wife 115,282.98 N/A 115,282.98 Superannation Fund 4 Account Husband 66,275.15 N/A 66,275.15 Superannuation Fund 5 Account Husband 23,379.99 N/A 23,379.99 Total superannuation assets 1,352,947.12 1,352,947.12 TOTAL SUPERANNUATION AND NON-SUPERANNUATION PROPERTY 2,853,247.12 Estimated Liabilities Mortgage against Suburb B Property Wife 501,072.74 N/A 501,072.74 Total liabilities 501,072.74 501,072.74 Financial Resources NIL NIL NIL NIL NIL Other - Addbacks Net proceeds of sale of the Suburb W commercial property N/A 279,288.86 N/A 186,192.57 Unauthorised withdrawal from H Superannuation Fund by the Respondent and retained for his sole benefit N/A 128,300.00 N/A 85,533.33 ADDBACKS TOTAL 407,588.86 271,725.90 TOTAL PROPERTY a) Non superannuation assets 1,500,300.00 b) Superannuation assets 1,352,947.12 c) Less liabilities (501,072.74) d) Plus add-backs 271,725.90 NET TOTAL 3,124,973.02 IS IT JUST AND EQUITABLE TO MAKE AN ORDER ALTERING PROPERTY INTERESTS?
Given the breakdown of the relationship and the ownership and current use of property interests, I am satisfied that it is just and equitable that there be an alteration property interests.
SECTION 79(4) FACTORS
Contributions
Financial Contributions direct (s79(4)(a)) and indirect (s79(4)(b)
The wife has contributed the totality of her capital and income by way of financial contributions to the support of the family and accumulation of assets, including working long hours when the children were little and receiving a gift from her father of his one-half interest in his property at Suburb B. The husband worked industriously in the early part of the marriage and outside the home but from approximately 2015 he stopped working commercially and devoted himself to renovation of properties which were never completed and he left in a disastrous condition for the wife.
In the early part of the marriage the parties each made indirect financial contributions to the extent that they were able. From post-separation, in February 2018, the wife was left with three properties (the G Street property, Suburb B property and Suburb L property). The family was residing in the Suburb B property and still do.
All three properties were in a state of disarray and disrepair, principally because of incomplete works and hoarding by the husband.
In relation to the Suburb L property, on 25 March 2019 Judge Riley made the following Order by Consent:
1.The parties and each of them respectively do all things and sign all necessary documents and authorities to sell the real property known as [K Street, Suburb L] (hereinafter referred to as [Suburb L]) as follows:
(a)the [Suburb L] property shall be listed with a real estate agency for sale by not later than 30 June 2019 or such earlier or later date as may be agreed in writing;
(b)the sales agent shall be agreed by the parties by not later than 30 May 2019 or in default of agreement shall be nominated by the President of the Real Estate Institute of Victoria or his / her nominee and the parties shall forthwith sign all documents necessary to formalise the appointment of the agreed or nominated agent;
(c)the parties shall follow the reasonable recommendations of the appointed agent in relation to the presentation of the [Suburb L] property and marketing campaign for the purposes of the sale;
(d)if the parties are in dispute in relation to the method of sale, the asking price, reserve or conditions of the sale then either party may request the President of the Real Estate Institute of Victoria or his / her nominee to make a recommendation as to the resolution of same;
(e)the respondent shall by 30 June 2019 or such earlier or later date as may be agreed in writing:
i.complete concreting works and any internal plastering or painting works of the [Suburb L] property; and
ii.remove all chattels, personal items, building materials and scrap from the [Suburb L] property such as to enable the [Suburb L] property to be offered for sale “as is” with vacant possession.
2.Any funds expended by the applicant or the respondent for the purposes of competing the works referred to in order 1(e) (i) and (ii) hereof shall be reimbursed from the proceeds of the sale of the [Suburb L] property, subject to order 3 hereof.
…
The husband failed to comply with paragraph 1(e). As a result, the wife spent $63,059.86 to complete works to the property. The wife paid this from her own accounts but the shortfall was borrowed from the wife’s children and her mother. The property was sold in 2019 and there was a shortfall after payment of the mortgage of $76,173.15 secured against the Suburb B property.
In relation to the Suburb B property, the wife spent approximately $35,000 on internal works. On 30 April 2020, the wife took out a mortgage of $501,000.00 against the Suburb B property to compete works and to pay the shortfall from the sale of the Suburb L property. The wife has serviced this $501,000 debt alone.
In relation to the Suburb J property, the wife has sworn an affidavit on 8 October 2022 which details some of the rectifications and works she has been required to attend to in order to make part of the property habitable for tenants. The wife spent $8,405 clearing junk and toxic goods from part of the property and rectifying structural defects to one of the rooms. The funds were from the wife’s resources. The property is now tenanted for around $3,000 a month and is managed by a real estate agent. The front part of the property is still in disarray, is uninhabitable and detracts from the market value of the property as a whole. The front part of the property is not tenanted and cannot be in its current condition. The managing agent for the rental property is FF Real Estate in Suburb J. The rental income accumulates in the H Superannuation Fund.
The wife’s direct financial contributions have been greater than that of the husband.
The wife’s indirect financial contributions have included attending to the rectification, repair and emptying of the Suburb J property and the Suburb L property. Not only has that enabled the Suburb L property to be sold and the Suburb J property to be tenanted but I have regard to what would have happened but for the wife’s contributions in this regard. The properties would, no doubt, have reduced in value. Her action has preserved the property of the parties. The mortgage over the Suburb L property could not have been met and would have been subject to a forced sale by the mortgagee bank, resulting in a loss of much more than the deficit sustained of $76,000 or thereabouts. The wife’s effort to preserve the property have been very significant and must be given real recognition in the cultivation of contributions. The wife’s indirect financial contributions exceed the husband’s.
Contributions to the welfare of the family (s79(4)(c))
The wife was the primary caregiver for the children throughout the marriage. Since separation, she been the sole parent at which time the children were 18 and 19 years of age. When the children were younger, the mother’s role of primary carer is in part described above but included enlisting the help of her mother to care for the children and making herself available before and after work to care for the children in her mother’s home before returning with the children to the family home.
The husband’s involvement with the children’s day to day care was minimal, although the letter set out above from Ms M to the father indicates that he was a valued member of their family and they have suffered personally by his abrupt departure and failure to keep in touch. It has been the wife who has had to pick up the pieces, emotionally as well as financially.
The wife’s contribution to the welfare of the family has far exceeded the husband’s.
Assessment of contributions
The wife’s contribution to the welfare of the family has been a contribution far in excess of that made by the husband and must be given appropriate recognition in an assessment of contributions.
I assess the various contributions of the parties at 70-75 percent to the wife and 25-30 per cent to the husband.
The effect of the proposed order upon the income earning capacity of either party
The order proposed by the wife does not impact on the earning capacity of either party.
Considerations under s 75(2)
Section 79(4)(e) requires the court to take into account matters referred to in s75(2) so far as they are relevant. Section 75(2) of the Act sets out the matters which must be taken into account by the Court when determining applications with respect to maintenance. This is the prospective element of the determination of the application for property settlement. The assessment of contributions during the marriage is the retrospective element.
The age and state of health of each of the parties (s 75(2)(a)) and the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment (s 75(2)(b))
The wife is 54 years old and the husband is 53 years old. The wife is in gainful employment and the husband’s employment status is not precisely known but for the purpose of this decision I take into account that it would be negligible. The wife does not know where the husband is but it is his sincere understanding that he has fallen on hard times, is not functioning and is likely to be dependent on social security payments.
I have set out the legal and equitable interests of the parties in the table which appears above. On the basis that the wife is entitled to 70-75 per cent on an assessment of contributions, her entitlement is $2,052,519 and the husband’s is $571,381.
Commitments of each of the parties that are necessary to enable the party to support himself or herself and a child or other person that the person has a duty to maintain and the responsibilities of either party to support another person (s 75(2)(d) and (e))
The wife supports herself and the two adult children of the marriage who are of independent means but still live at home, incurring for her household expenses in excess of her own but which she is happy to pay to preserve a sense of family life.
The wife also supports her mother, emotionally and to a certain extent financially. The wife collects her mother each Friday and cares for her at the Suburb B property each weekend. The children have the benefit of seeing the maternal grandmother each week. The wife has acted to preserve a family life for the children and has done so successfully. She is not legally obliged to support the children or her mother but she does so on the basis of a moral imperative. The husband has not acted for the benefit of the family since separation.
Eligibility of either party for a pension, allowance or benefit from the government or from a superannuation fund or scheme (s 75(2)(f))
The parties’ superannuation interests are described above.
The wife is not entitled to any pension, allowance or benefit from the government or from a superannuation fund.
The husband is likely to be receiving an income-tested pension or benefit.
A standard or living that is in all circumstances reasonable (s75(2)(g))
A reference to ‘reasonable’ in this sub-paragraph imputes a necessity to economise if necessary. The wife has been frugal since separation in preserving the property and providing a family home for the children. The Suburb B property represents a reasonable form of accommodation for the time being, but ultimately the wife may require differently appointed and situated housing at a higher cost.
The husband is entitled to a reasonable standard of living but the wife believes that this is likely to be aspirational at the moment.
The duration of the marriage and the extent to which it has affected the earing capacity of the party whose maintenance is under consideration (s75(2)(k))
The parties cohabited from the date of their marriage until February 2018, a period of 23 years. Neither party’s maintenance is under consideration.
Any fact or circumstance which, in the opinion of the court, the justice requires to be taken into account (s75(2)(o))
The only other fact which requires consideration is add backs claimed by the wife against the husband. I have included my reasoning in relation to add backs at [70]-[85] above.
CONCLUSION ON ADJUSTMENT OR MATTERS UNDER SECTION 75(2)
The wife has more property than the husband and greater income and income-earning capacity. She also has more responsibilities than the husband. For the purpose of a property proceeding, I can take into account any income tested pension or benefit received by the husband.
In all the circumstances of the case, I do not think any adjustment for relevant s 75(2) factors should be made.
ARE THE ORDERS JUST, EQUITABLE AND APPROPRIATE?
The Orders leave the wife with a home valued at 1.25 million and subject to a mortgage of 501,000. She has a car, very modest savings and the valuable superannuation interest in the H Superannuation Fund. The husband keeps his industry superannuation entitlements, being Superannuation Fund 4 and Superannuation Fund 5.
The following table outlines the assets as retained by the parties:
Description Ownership Retained by Value ($) Non-superannuation assets Suburb B Property Wife Wife 1,250,000.00 Car Wife Wife 24,000.00 Bank Account Wife Wife 16,300.00 Tools Husband Husband 100,000.00 Inheritance Husband Husband 110,000.00 Bank Account Husband Husband Unknown Superannuation interests H Superannuation Fund – Self Managed Super Fund Wife Wife 252,234.00 H Superannuation Fund – Self Managed Super Fund Husband Wife 895,775.00 Superannuation Fund 3 Account Wife Wife 115,282.98 Superannuation Fund 4 Account Husband Husband 66,275.15 Superannuation Fund 5 Account Husband Husband 23,379.99 TOTAL SUPERANNUATION AND NON-SUPERANNUATION PROPERTY 2,853,247.12 Estimated Liabilities Mortgage against Suburb B Property Wife Wife 501,072.74 Liabilities 501,072.74 Financial Resources NIL NIL NIL NIL Other – Addbacks Net proceeds of sale of the Suburb W commercial property N/A N/A 186,192.57 Unauthorised withdrawal from H Superannuation Fund by the Respondent and retained for his sole benefit N/A N/A 85,533.33 ADDBACKS TOTAL 271,725.90 TOTAL PROPERTY 3,124,973.02
The wife retains:
Description Value ($) Suburb B Property 1,250,000.00 Car 24,000.00 Bank Account 16,300.00 H Super Fund – Self Managed Super Fund 252,234.00 H Super Fund – Self Managed Super Fund 895,775.00 Superannuation Fund 3 Account 115,282.98 Mortgage against Suburb B Property (501,072.74) TOTAL 2,052,519.24 (72%)
The husband retains:
Description Value ($) Tools 100,000.00 Inheritance 110,000.00 Bank Account Unknown Superannuation Fund 4 Account 66,275.15 Superannuation Fund 5 Account 23,379.99 Net proceeds of sale of the Suburb W commercial property 186,192.57 Unauthorised withdrawal from H Superannuation Fund by the Respondent and retained for his sole benefit 85,533.33 TOTAL 571,381.04 (28%)
I am satisfied that the alteration of property interests is just and equitable and otherwise proper.
CONCLUSION
There is a natural symmetry to each party retaining what they have, save that the wife takes over all of the superannuation from a private fund. I am satisfied that the overall adjustment is just, equitable and proper within the meaning of the legislation and make the orders set out in the beginning of these reasons in order to affect an alteration in those terms. There will be liberty reserved to each party to apply in relation to any problems with implementation of this order.
I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 2 February 2024
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