Woodward & Woodward
[2023] FedCFamC2F 828
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Woodward & Woodward [2023] FedCFamC2F 828
File number: DNC 405 of 2021 Judgment of: JUDGE YOUNG Date of judgment: 6 July 2023 Catchwords: FAMILY LAW – application for alteration of property interests – where the husband withdrew and dissipated large amounts of money around the time of separation - where both parties submitted that contributions in the marriage were equal - where the parties owned and operated a business – where both parties were seeking to retain exclusive control of the business – where the parties did not agree on the value of the business – where neither party called expert evidence about the value of the business – parties relied on balance sheet values. Legislation: Family Law Act1975 (Cth) ss 75(2), 79 Division: Division 2 Family Law Number of paragraphs: 31 Date of hearing: 25–26 May 2023, 5 July 2023 Place: Darwin Counsel for the Applicant: Mr Fellows Solicitor for the Applicant: Ward Keller Counsel for the Respondent: Mr Casey Solicitor for the Respondent: Arafura Legal ORDERS
DNC 405 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WOODWARD
ApplicantAND: MR WOODWARD
Respondent
order made by:
JUDGE YOUNG
DATE OF ORDER:
6 July 2023
THE COURT ORDERS THAT:
WOODWARD FAMILY TRUST
1.That the Applicant forthwith retain as her absolute property, the title and possession of and the Respondent forthwith transfer and assign to the Applicant and/or relinquish any right, title, interest and/or claim that he may have to or in the following property (assets and liabilities) and financial resources of Woodward Family Trust:
(a)The Applicant's positions, appointments, powers, rights, privileges and obligations as:
(i)Principal;
(ii)Trustee (including as director of the corporate trustee); and
(iii)Beneficiary.
(b)Any loan account in the Applicant's name (whether solely or jointly with others), standing with a credit balance in the books of account of the Woodward Family Trust.
2.By the settlement date or as otherwise directed by the Applicant to the following:
(a)Change signatory arrangements with bankers and financiers;
(i)Authorise the financiers and bankers of the Woodward Family Trust to cancel all of his signatory arrangements if any, in respect of the financial accommodations and accounts of the Woodward Family Trust;
(ii)Remove himself from having any access to financial accommodations and accounts (including the cancellation of any internet or telephone banking access);
(iii)This order shall be taken to be an authority to any bank or financial institution or credit provider to cancel the Respondent's access to any such accounts;
(b)Transfer of the Respondent’s loan account with credit balance in the books of account
(i)Transfer; novate and assign to the Applicant all of his title, right, claim, and interest, if any, to and in any loan account in the Respondent's name (whether solely or jointly with others) standing with a credit balance in the books of account of the Woodward Family Trust at the settlement date, and to give effect to same:
A.Complete and execute a Deed of Assignment relating to the transfer assignment of the loan account and deliver cause to be delivered to the solicitors of the Applicant the Deed of Assignment by the Date of Settlement.
(c)Renounce and disclaim interests
(i)That at the election of the Applicant and upon being so directed in writing by the Applicant, the Respondent both unconditionally and permanently exclude himself from all classes of beneficiary (particularly as primary beneficiary) of the Woodward Family Trust so as to effect a relinquishment of all of his right, title, interest, powers, and privileges, if any, to and in the Woodward Family Trust and so disclaim any future interest in benefit he may have in the Woodward Family Trust and for the purposes of same:
(ii)The Respondent acknowledges that the provisions made for him by this order are in place of his entitlements in the Woodward Family Trust;
(iii)The Respondent sign all documents and do all acts and things necessary, at the Applicant's cost, to renounce, transfer and/or assign those entitlements to the Applicant if she requires; and
(iv)The Respondent relinquishes any and all right, title, claim and interest, to the corpus and income of the Woodward Family Trust.
(d)Indemnity from Respondent
(i)The Respondent be restrained from making any claim or demand upon the trustee for the time being of the Woodward Family Trust and indemnify the Applicant and the said trustees and keep each indemnified in respect of any potential loss in the value of the Applicant's entitlement arising from any distribution subsequent to the date of the settlement made to the Respondent for income and/or corpus of the Woodward Family Trust.
(e)Books of accounts, documents and records
(i)Return to the Applicant for the company accountants:
A.Data files (paper or electronic);
B.Computer disks or other computerised records;
C.Data lists;
D.Books of account and financial records;
E.Client lists;
F.Trust deeds (including deeds of amendment or variation): and
G.Any other documents of any other kind, if any held by the Respondent relating to or belonging to the Woodward Family Trust; if any, in his possession, power or control.
B STREET, TOWN C ("THE B STREET, TOWN C PROPERTY")
3.That within twenty-eight (28) days of the date of these Orders, the following shall occur:
(a)the Applicant and Respondent as Trustees for the Woodward Family Trust shall sign all such documents and undertake all such necessary acts so as to cause the Respondent to be removed as the Trustee on the title deed of the property situated at B Street, Town C in the Northern Territory of Australia, whole of the land contained in Lot … Town C from plan(s) …, Volume … Folio … and held in the name of the Applicant and Respondent as Trustees.
(b)That from the date of these Orders, the Applicant shall have sole use and benefit of the B Street, Town C property; and
(c)Subject to the Applicant obtaining sole use and occupancy, the Applicant shall be solely responsible for insurance, rates and other outgoings in relation to the B Street, Town C property.
D STREET, SUBURB E ("THE SUBURB E PROPERTY")
4.That within twenty-eight (28) days of the date of these Orders, the following shall occur:
(a)The Applicant and Respondent as Trustees for the Woodward Family Trust shall sign all such documents and undertake all such necessary acts so as to cause the Respondent to be removed as the Trustee on the title deed of the property situated D Street, Suburb E in the Northern Territory of Australia, being the whole of the land contained in Lot … Town of Suburb F from plan(s) …, Volume … Folio … and held in the name of the Applicant and Respondent as Trustees.
(b)The Applicant as Trustee of the Woodward Family Trust shall sign all documents and do all things necessary to refinance NAB mortgage dealing number …, so as to release the Respondent from all liability pursuant to the mortgage.
(c)The Applicant shall have sole use and benefit of the Suburb E property, and thereafter the Applicant shall be solely responsible for the mortgage, insurance, rates and outgoings in relation to the Suburb E property.
G PTY LTD TRADING AS TOWN C BUSINESS
5.That forthwith the following shall occur:
(a)The Respondent shall sign all such documents and undertake all such necessary acts so as to transfer to the Applicant all his right title in G Pty Ltd;
(b)The Respondent shall sign all documents and do all acts necessary to resign from any position he holds in G Pty Ltd; and
(c)The Respondent be restrained from and an injunction issue restraining the Respondent from causing any further dividends to be paid to the Respondent from G Pty Ltd from 30 June, 2020 without the written consent of the Applicant.
(d)That if the 2021 or 2022 Financial Statements or Taxation Returns for G Pty Ltd require execution by the Respondent, the Respondent shall execute those documents within fourteen (14) days of being requested to do so.
J STREET, SUBURB K, QLD ("THE J STREET, SUBURB K PROPERTY")
6.That within twenty-eight (28) days of the date of these Orders, the following shall occur:
(a)The Respondent shall sign all documents and do all things necessary to transfer to the Applicant all his right title and interest in the property situated at J Street, Suburb K in the State of Queensland, being the whole of the land contained in Lot … of Registered Plan ….
(b)The Applicant sign all documents and do all things necessary to refinance Commonwealth Bank of Australia mortgage dealing number … registered over the J Street, Suburb K property into her sole name so as to release the Respondent from all indebtedness and she shall keep him indemnified against all liabilities owing under the mortgage.
(c)The Applicant shall have sole use and benefit of the J Street, Suburb K property.
(d)The Applicant shall be solely responsible for the mortgage, insurance, repairs, rates and outgoings in relation to the J Street, Suburb K property, and shall indemnify and keep indemnified the Respondent in relation same.
L STREET, TOWN M (THE "L STREET, TOWN M PROPERTY")
7.That within twenty-eight (28) days of the date of these Orders, the following shall occur:
(a)The Applicant shall sign all documents and do all things necessary to transfer to the Respondent all her right title and interest in the property situated at L Street, Town M in the Northern Territory of Australia, being the whole of the land contained in Section … Region N from plan(s) …, Volume … Folio …, at the Applicant's cost.
(b)The Respondent shall have sole use and benefit of the L Street, Town M property.
(c)The Respondent shall be solely responsible for the mortgage, insurance, repairs, rates and outgoings in relation to the L Street, Town M property, and shall indemnify and keep indemnified the Applicant in relation to same.
8.That in the event that the Respondent fails to comply with the terms of Order 7 herein, the parties shall do all things necessary including executing all documents necessary to list and sell the L Street, Town M property as follows:
(a)The property shall be listed for sale by private treaty with such real estate agent as is agreed between the parties and failing agreement within 14 days from the date of these Orders, O Real Estate shall be as nominated to list the property for sale.
(b)The list price of the property shall be such amount as is agreed between the parties and failing agreement within 14 days of the date of these Orders the list price will be as nominated by the real estate agent.
(c)The sale price of the property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least 90% of the list price shall be accepted by the parties as the sale price.
(d)The parties are to co-operate in every way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer.
(e)That upon agreement being reached for sale of the property the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the agent or their solicitor.
(f)The contract of sale shall provide for completion within 30 days after the date of the contract unless agreed otherwise between the parties.
(g)The proceeds of sale of the property shall be paid in the following manner and priority:
(i)Payment of the agent's commission and advertising or other expenses, if any, payable on the sale.
(ii)Payment of the legal costs and outlays relating to the sale.
(iii)The balance to the Respondent.
9.In the event that the L Street, Town M property is not sold by private treaty pursuant to Order 8 then the parties shall do all acts and sign all documents as are necessary to sell the property by auction and the following shall apply:
(a)The property shall be listed with the agent appointed under Order 8 (a) (hereinafter called "the Auctioneer") for sale by auction within a further three (3) months.
(b)The parties shall execute all documents requested by the auctioneer for sale of the property by auction.
(c)The reserve price of the property shall be such amount as is agreed between the parties and failing agreement being reached between the parties 21 days prior to the auction, then the reserve price shall be nominated by the auctioneer.
(d)The parties shall be jointly responsible to pay to the auctioneer any sums requested for advertising or auction expenses.
(e)The parties agree to co-operate in every way with the auctioneer in relation to the sale by auction including allowing inspection of the property at all times reasonably requested by the auctioneer and ensuring that the property is clean, neat and in good order at the time of any inspection and on the day of auction.
(f)That the parties attend at the auction and negotiate with the highest bidder in the event of the reserve price not being reached.
(g)The sale price of the property shall be any amount in excess of the reserve price but in the event of the reserve price not being reached the sale price of the property shall be such amount as is agreed between the parties or failing agreement any offer received after the auction to buy the property that is at least 80% of the reserve price shall be accepted by the parties.
(h)That the parties attend at the auction and negotiate with the highest bidder or any other interested party in the event that the reserve price is not reached, for the purpose of reaching agreement under Order 9 (h).
(i)That upon agreement being reached for sale of the property, Orders 8 (g) shall apply.
10.In the event that the property is not sold at the auction pursuant to Order 9 or within 14 days after the date of the auction by further negotiation, then the parties shall cause a further auction of the property to be held within four (4) months after the date of the first auction and for that purpose the provisions of Order 9 shall apply.
P STREET, TOWN Q (THE "TOWN Q PROPERTY")
11.That within twenty-eight (28) days of the date of these Orders, the following shall occur:
(a)The Applicant shall sign all documents and do all things necessary to transfer to the Respondent all her right title and interest in the property situated at P Street, Town Q in the Northern Territory of Australia, being the whole of the land contained in Section … Region R from plan(s) …, Volume … Folio ….
(b)The Respondent sign all documents and do all things necessary to refinance Commonwealth Bank of Australia mortgage dealing number … registered over the Town Q property into his sole name so as to release the Applicant from all indebtedness and he shall keep her indemnified against all liabilities owing under the mortgage.
(c)The Respondent shall have sole use and benefit of the Town Q property.
(d)The Respondent shall be solely responsible for the mortgage, insurance, repairs, rates and outgoings in relation to the Town Q property, and shall indemnify and keep indemnified the Applicant in relation same.
12.That in the event that the Respondent fails to comply with the terms of Order 11 herein, the parties shall do all things necessary including executing all documents necessary to list and sell the Town Q property as follows:
(a)The property shall be listed for sale by private treaty with such agent as is agreed between the parties and failing agreement within 14 days from the date of these Orders, O Real Estate Darwin shall be nominated to list the property for sale.
(b)The list price of the property shall be such amount as is agreed between the parties and failing agreement within 14 days of the date of these Orders the list price will be as nominated by the real estate agent.
(c)The sale price of the property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least 90% of the list price shall be accepted by the parties as the sale price.
(d)The parties are to co-operate in every way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer.
(e)That upon agreement being reached for sale of the property the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the agent or their solicitor.
(f)The contract of sale shall provide for completion within 30 days after the date of the contract unless agreed otherwise between the parties.
(g)The proceeds of sale of the property shall be paid in the following manner and priority:
(i)To discharge the mortgage.
(ii)Payment of the agent's commission and advertising or other expenses, if any, payable on the sale.
(iii)Payment of the legal costs and outlays relating to the sale.
(iv)The balance to the Respondent.
13.In the event that the Town Q property is not sold by private treaty pursuant to Order 14 then the parties shall do all acts and sign all documents as are necessary to sell the property by auction and the following shall apply:
(a)The property shall be listed with the agent appointed under Order 12(a) (hereinafter called "the Auctioneer") for sale by auction within a further three (3) months.
(b)The parties shall execute all documents requested by the auctioneer for sale of the property by auction.
(c)The reserve price of the property shall be such amount as is agreed between the parties and failing agreement being reached between the parties 21 days prior to the auction, then the reserve price shall be nominated by the auctioneer.
(d)The parties shall be jointly responsible to pay to the auctioneer any sums requested for advertising or auction expenses.
(e)The parties agree to co-operate in every way with the auctioneer in relation to the sale by auction including allowing inspection of the property at all times reasonably requested by the auctioneer and ensuring that the property is clean, neat and in good order at the time of any inspection and on the day of auction.
(f)That the parties attend at the auction and negotiate with the highest bidder in the event of the reserve price not being reached.
(g)The sale price of the property shall be any amount in excess of the reserve price but in the event of the reserve price not being reached the sale price of the property shall be such amount as is agreed between the parties or failing agreement any offer received after the auction to buy the property at a price that is at least 80% of the reserve price shall be accepted by the parties.
(h)That the parties attend at the auction and negotiate with the highest bidder or any other interested party in the event that the reserve price is not reached, for the purpose of reaching agreement under Order 13 (g).
(i)That upon agreement being reached for sale of the property, Orders 12 (g) shall apply.
14.In the event that the property is not sold at the auction pursuant to Order 13 or within 14 days after the date of the auction by further negotiation, then the parties shall cause a further auction of the property to be held within four (4) months after the date of the first auction and for that purpose the provisions of Order 13 shall apply.
S STREET, TOWN C ("THE S STREET, TOWN C PROPERTY")
15.That within twenty-eight (28) days of the date of these Orders, the following shall occur:
(a)the Applicant shall sign all documents and do all things necessary to transfer to the Respondent all her right title and interest in the property situated at S Street, Town C in the Northern Territory of Australia, being the whole of the land contained in Lot ….Town C from plan(s) …, Volume … Folio ….
(b)The Respondent sign all documents and do all things necessary to refinance Commonwealth Bank of Australia mortgage dealing number … registered over the S Street, Town C property into his sole name so as to release the Applicant from all indebtedness and he shall keep her indemnified against all liabilities owing under the mortgage.
(c)The Respondent shall have sole use and benefit of the S Street, Town C property.
(d)The Respondent shall be solely responsible for the mortgage, insurance, repairs, rates and outgoings in relation to the S Street, Town C property, and shall indemnify and keep indemnified the Applicant in relation same.
16.That in the event that the Respondent fails to comply with the terms of Order 15 herein, the parties shall do all things necessary including executing all documents necessary to list and sell the S Street, Town C property as follows:
(a)The property shall be listed for sale by private treaty with such real estate agent as is agreed between the parties and failing agreement within 14 days from the date of these Orders, O Real Estate Darwin shall be nominated to list the property for sale.
(b)The list price of the property shall be such amount as is agreed between the parties and failing agreement within 14 days of the date of these Orders the list price will be as nominated by the real estate agent.
(c)The sale price of the property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least 90% of the list price shall be accepted by the parties as the sale price.
(d)The parties are to co-operate in every way with the real estate agent in relation to the marketing of the property for sale including making readily available, allowing inspection of the property at all times requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer.
(e)That upon agreement being reached for sale of the property the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the agent or their solicitor.
(f)The contract of sale shall provide for completion within 30 days after the date of the contract unless agreed otherwise between the parties.
(g)The proceeds of sale of the property shall be paid in the following manner and priority:
(i)To discharge the mortgage owing to Commonwealth Bank of Australia registered mortgage number ….
(ii)Payment of the agent's commission and advertising or other expenses, if any, payable on the sale.
(iii)Payment of the legal costs and outlays relating to the sale.
(iv)The balance to the Respondent.
17.In the event that the property is not sold by private treaty pursuant to Order 16 then the parties shall do all acts and sign all documents as are necessary to sell the property by auction and the following shall apply:
(a)The property shall be listed with the agent appointed under Order 16 (a) (hereinafter called "the Auctioneer") for sale by auction within a further three (3) months.
(b)The parties shall execute all documents requested by the auctioneer for sale of the property by auction.
(c)The reserve price of the property shall be such amount as is agreed between the parties and failing agreement being reached between the parties 21 days prior to the auction, then the reserve price shall be nominated by the auctioneer.
(d)The parties shall be jointly responsible to pay to the auctioneer any sums requested for advertising or auction expenses.
(e)The parties agree to co-operate in every way with the auctioneer in relation to the sale by auction including allowing inspection of the property at all times reasonably requested by the auctioneer and ensuring that the property is clean, neat and in good order at the time of any inspection and on the day of auction.
(f)That the parties attend at the auction and negotiate with the highest bidder in the event of the reserve price not being reached.
(g)The sale price of the property shall be any amount in excess of the reserve price but in the event of the reserve price not being reached the sale price of the property shall be such amount as is agreed between the parties or failing agreement any offer received after the auction to buy the property at a price that is at least 80% of the reserve price shall be accepted by the parties.
(h)That the parties attend at the auction and negotiate with the highest bidder or any other interested party in the event that the reserve price is not reached, for the purpose of reaching agreement under Order 16 (g);
(i)That upon agreement being reached for sale of the property, Orders 16 (g) shall apply.
18.In the event that the property is not sold at the auction pursuant to Order 16 or within 14 days after the date of the auction by further negotiation, then the parties shall cause a further auction of the property to be held within four (4) months after the date of the first auction and for that purpose the provisions of Order 16 shall apply.
T STREET, TOWN Q
19.That the Respondent shall retain all his right title and interest in the property situated at T Street, Town Q, NT more specifically known as Section … Region R from plan(s) …, Volume … Folio ….
OTHER
20.That the Respondent shall retain the following items for his sole use and benefit:
(a)Motor Vehicle 1 (registration number …);
(b)Motor Vehicle 2, (registration number …);
(c)Motor Vehicle 3;
(d)Motor Vehicle 4;
(e)Motor Vehicle 5 (registration number …);
(f)Motor Vehicle 6;
(g)Motor Vehicle 7;
(h)Motor Vehicle 8;
(i)Vehicle 9;
(j)Vehicle 10;
(k)Vehicle 11;
(l)Water tank;
(m)Livestock;
(n)Car collection; and
(o)Any other property listed in items 14 to 29 and item 31 in the balance sheets in the Reasons for Judgment.
21.For the purposes of giving effect to Order 20, the Respondent shall within fourteen (14) days from the date of these Orders remove the items listed in Order 20 from B Street, Town C, S Street, Town C, D Street, Suburb E and J Street, Suburb K, Qld, failing of which the Respondent relinquishes ownership and shall transfer his right, title and interest of those items to the Applicant.
22.That the Applicant shall retain the following for her sole use and benefit:
(a)Motor Vehicle 12 (registration number …)
(b)Money retained in all bank accounts in her sole name, to include but not limited to the following bank accounts:
(i)NAB Account (…73); and
(ii)CBA Account (…92).
(c)Her superannuation entitlements.
AUTHORITIES
23.That unless otherwise specified in this order and except for the purpose of enforcing the transfer of properties under this order or any subsequent orders:
(a)Each party shall be entitled to the exclusion of the other to all other property and chattels of whatsoever kind or nature in the possession of such party as at the date hereof and for this purpose, bank accounts are deemed to be in the possession of the person whose name appears on the bank records thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements; and
(b)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this order.
24.That in the event of a failure by either party to comply with any of the provisions of these Orders such that enforcement action is required the procedure for enforcement shall be as follows:
(a)The party who seeks to enforce the relevant provisions of the Orders shall give the other party 14 days notice of their compliance demand; and
(b)Should the party who seeks to enforce the relevant provisions of the Orders deem enforcement action appropriate via the Courts they may after giving the other party 14 days notice.
25.In the event the Respondent defaults in compliance with the obligations under these Orders, the default shall be proved by the Applicant filing an Affidavit setting out the expenses and amount due or claimed and any amount outstanding that remains unpaid by the Respondent, and the Respondent shall pay the Applicant's costs of establishing any default and any further proceedings in Court on a solicitor/client basis in accordance with the Applicant's written Cost Agreement with her legal practitioner.
26.That this is an order to which Section 81 of the Family Law Act1975 applies. The purpose of finally determining all property matters between the parties being to avoid any further proceedings between the parties.
27.That in the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders then pursuant to Section 106A Family Law Act 1975 that the Registrar of the Federal Circuit and Family Court of Australia shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.
28.Any application for costs should be made by sending a written submission to the chambers of Judge Young within 7 days. Any submission in reply is to be made within a further 7 days.
29.Liberty to apply in writing.
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 Woodward & Woodward has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Young
BACKGROUND
This is an application for alteration of property interests pursuant to s. 79 of the Family Law Act.
The applicant wife is 58 years old and the respondent husband is 70 years old. The parties commenced a relationship in 1998, according to the husband, or 1999, according to the wife, initially by internet as the wife was then living in Country V. She moved to Australia, according to the wife, in 2000 or, according to the husband, 2001. They separated, according to the wife, in June 2020 or, according to the husband, 2021. However, as the separation was marked by a domestic violence restraining order against the husband dated June 2020, which is in evidence, I accept the wife’s evidence about the date of separation.
The wife has a daughter from a previous relationship who was a child at the time the parties commenced their relationship but is now an adult. The husband has children from a previous relationship, two sons, who are now adults. There are no other children.
The wife said that at the time she and the husband began cohabitation he owned a number of properties, although she gave no further particulars, which were encumbered with mortgage debt and unpaid rates amounting to about $410,000. She said that between 2003 and 2006 the husband sold the properties for a combined gross amount of $464,000. She said, despite that evidence, that the net return on the sales was about $100,000 and from this the husband gave $10,000 to each of his sons.
The husband said that he sold 10 properties between 2004 and 2006 for $462,000 and “netted about $300,000” on the sales. He agreed that he gave each of his sons $10,000. He provided no documentary evidence of the net proceeds of the sales.
I have reservations about the reliability of both parties but as each party submitted that contributions were equal I have not found it necessary to resolve the dispute about the net proceeds from the sale of these properties.
From 2003 to 2006 the parties operated a business. In 2008 the parties purchased a property at B Street, Town C, S Street, Town C, which they operated as a business. They continued to operate this business together until their separation. As noted, the husband left the property following the making of a domestic violence restraining order against him in June 2020. The wife continues to operate the business. The taxable income of the business for the 2022 tax year according to the financial statements of G Pty Ltd, which is the corporate vehicle used by the parties to operate the business, was $112,191. The taxable income of the Woodward Family Trust which owns various properties, including the property from which the business operates, was $77,501, which included $65,000 in rent from G Pty Ltd in the 2022 tax year.
Neither party provided evidence about how the income from these entities was distributed, although the financial statements for the family trust say that the income for the 2022 tax year was distributed 50% to each of the husband and wife. Pursuant to interim orders made on 18 October 2021 the husband was paid a “wage” of $4,000 a month for 6 months, that is, until April 2022. Apparently he has not received any share of the business income since then.
The litigation between the parties has been marked by a lack of co-operation and, particularly on the part of the husband, a lack of complete disclosure. At various points the husband was not legally represented but, following an order pursuant to s. 102NA of the Family Law Act, he was represented at the trial.
The husband was subject to a domestic violence restraining order made in mid-2020 following an assault on the wife and in respect of which he was convicted of an aggravated assault in late 2021.
In October 2021 the husband entered the business premises at night and removed goods. In July 2022 he was convicted of contravening a domestic violence order. In August 2022 the husband again entered the property and removed goods. In late 2022 the husband was convicted of multiple counts of contravening a domestic violence order, stealing and other offences. He received a suspended sentence of imprisonment.
THE POSITIONS OF THE PARTIES
Each party agreed that the property of the parties should be divided equally - but on the basis that he or she obtain exclusive control of the business.
In the case of the wife, she appeared to concede that if she were to obtain exclusive control of the business, with its significant income generating capacity, ordinarily there would need to be a compensatory adjustment of the other assets in favour of the husband rather than simply an equal division. However, she submitted that, in view of the large capital amounts withdrawn by the husband from various accounts prior to and around the time of separation, no further compensatory adjustment was merited because those amounts should be treated as add-backs or otherwise credited to the husband’s side of the ledger.
In the case of the husband, were he to obtain control of the business, he offered no compensatory adjustment to the wife beyond the equal division of assets.
As the parties have proposed an equal division of assets I have treated their positions as implicitly conceding equal contributions. The parties have not, having regard to what is to be included in the property pool, agreed on what is “equal”.
THE ASSET POOL
The items of real estate in the asset pool and their values were agreed by the parties. They did not appear to agree on the value of the business but neither party called expert evidence about its value. Instead both pointed to the balance sheet value of the business. In the case of the wife she said the balance sheet value was $678,019, assuming that a debt of $439,991 owed to G Pty Ltd by the Woodward Family Trust was repaid. The husband asserted that the value of G Pty Ltd was $238,028 but this did not take into account the $439,991 debt. In substance the parties agreed on the balance sheet value of G.
The wife also pointed to numerous chattels owned by the parties, including old cars and machinery, primarily in the possession of the husband. Consistently with other facets of the case the parties did not give any helpful evidence about how these chattels might be distributed or disposed of. In an apparently tactical move, the husband proposed in his trial affidavit that they be transferred to the wife at her valuations. However, as the chattels are largely in the possession of the husband and include items of machinery that would appear to be of little use to the wife I have decided the husband should retain those chattels at the values he ascribes to them in his financial statement filed on 17 January 2022.
The wife said the husband owns a number of cattle which he runs on one of the properties. The wife asserted the cattle were worth in the order of approximately $50,000. In his trial affidavit filed 16 May 2023 the husband admitted that he had run cattle about three years ago but said that most of the cattle had died and only a few were left. He said these were in poor condition and had no commercial value. However, in the list of assets/balance sheet in that affidavit he ascribed a value of approximately $50,000 to the cattle but, as with the other chattels, on the proviso that the wife took the cattle. In his financial statement filed the previous year he valued the cattle in his possession at $20,000. There was no evidence that the wife has any experience with cattle and evidence that the husband does. It is appropriate that the husband retain the cattle. I will treat the husband’s position as an admission against interest and ascribe a value of $20,000 to the cattle.
One of the important issues to be resolved is the treatment of the large amounts of money withdrawn by the husband around the time of separation and dissipated or otherwise expended by him. According to the wife, the husband withdrew amounts totalling about $840,000 from various sources around the time of separation which he has largely not unaccounted for.
The wife gave uncontested evidence that the husband had withdrawn, either shortly before or after separation, $532,004 from his personal bank accounts, $135,191 from a NAB business account, a further amount of $10,500 from the same account for legal fees, a redraw on a CBA investment loan of $55,000 and a further redraw on another CBA investment loan of $16,000. The husband also withdrew $94,950 from his superannuation. These amounts total $843,645.
The wife also gave evidence of the husband attending the business premises in late 2021 and removing stock or goods which, according to her, were valued at $15,000, again in early 2022 removing goods worth $20,000 and in mid-2022 removing goods worth $15,000. While the husband was convicted of stealing in relation to one or more of these incidents and I am satisfied that the stolen goods had value I am unable to make any precise finding of their value in the absence of appropriate evidence.
In addition, the wife points to the husband’s purchase of machinery from an auction house for approximately $25,000 as expenditure from marital funds that must be accounted for.
The wife gave evidence that in January 2021 she discovered a shoebox in the house containing approximately $70,000 in cash. She said she believed this was money withdrawn by the husband from the NAB business account. She said the husband later removed the shoebox and money.
The wife asserted that some of the money taken by the husband, in the order of $285,000, was invested by him in cryptocurrency and some, in the order of $165,000, given by the husband to a woman in the Country U, with whom he admitted a relationship, to invest in property. The husband did not seriously contest these claims. He said he had been “scammed” in relation to the cryptocurrency and it had been lost. His evidence about the property investment in the Country U was vague. I am not satisfied there was any property investment. Counsel for the wife conceded that of the amount of $843,645 an amount of $100,000 should be ascribed to the husband’s need for support after separation, which I accept. I am satisfied the balance was lost in reckless investments or has been otherwise dealt with by the husband in a manner which is undisclosed. I am unable to make any more precise finding. This money, approximately $750,000 after allowing for the husband’s support after separation, should be an add-back.
The husband alleged that the wife sent unspecified amounts of money to her family in Country V during the marriage. This was not put in cross-examination to the wife but even if it were true it would not necessarily make a difference to the outcome particularly, as in this case, where the parties agree that contributions were equal. It was put to the wife that she diverted significant sums of cash money from the business for her own use. She denied this. Although the evidence suggests that both parties, at different times, had access to significant amounts of cash from the business I am unable to make any particular finding about that and where, as here, it is agreed that contributions were equal it is unnecessary to make any such finding.
I find the asset pool is as follows:
Description Husband Wife Totals 1 G Pty Ltd t/a Town C Business (assuming debt of $439,991 owed by family trust is repaid) $339,009 $339,010 $678,019 2 Woodward Family Trust (value of properties held in trust below) 2(a) B Street, Town C, NT (family trust) – business premises $300,000 $300,000 $600,000 2(b) D Street, Suburb E, NT (family trust) $215,000 $215,000 $430,000 3 L Street, Town M, NT (joint) $100,000 $100,000 $200,000 4 P Street, Town Q, NT (joint) $65,000 $65,000 $130,000 5 S Street, Town C, NT (joint) $95,000 $95,000 $190,000 6 J Street, Suburb K, Qld (joint) $167,500 $167,500 $335,000 7 T Street, Town Q, NT (husband sole owner) $250,000 $250,000 8 NAB Business Account (…93) $10,000 9 NAB Account (…73) $1,500 10 CBA Account (…92) $1,500 11 Husband’s current bank accounts Unknown 12 Husband’s cryptocurrency investment Unknown 13 Husband’s investments in the Country U Unknown 14 Motor Vehicle 2 $4,000 15 Motor Vehicle 6 $3,000 16 Motor Vehicle 7 $3,000 17 Motor Vehicle 5 $1,000 18 Vehicle 9 $7,000 19 Motor Vehicle 13 $3,000 20 Motor Vehicle 3 $500 21 Motor Vehicle 4 $500 22 Motor Vehicle 14 $4,000 23 Motor Vehicle 10 $2,500 24 Vehicle 11 $100 25 Water Tank $200 26 Cattle $20,000 27 Car Collection $500 28 Generators $4,000 29 Motorbike $4,000 30 Motor Vehicle 12 $3,000 31 Vehicles purchased by husband at W Company $26,939 Total Assets $1,615,748 $1,297,510 $2,913,258 Add-Backs 32 Cash withdrawals made by husband – see paragraph 24 of these reasons $750,000 Total $2,365,748 $1,297,510 $3,663,258 Liabilities 33 Woodward Family Trust owes G Pty Ltd $219,995 $219,996 $439,991 34 NAB Mortgage Acc …16 D Street, Suburb E (family trust) $104,138 $104,138 $208,276 35 CBA Home Loan Account …07 – P Street, Town Q and S Street, Town C (joint) $58,500 $58,500 $117,000 36 CBA Home Loan Account …26 J Street, Suburb K $102,500 $102,500 $205,000 Total Liabilities $485,133 $485,134 $970,267 Net Assets $1,880,615 $812,376 $2,692,991 Superannuation 37 Super Fund 1 $72,283 38 Super Fund 2 $9,078 Total Superannuation $9,078 $72,283 $81,361 Total Assets and Superannuation $1,889,693 $884,659 $2,774,352 CONTRIBUTIONS
Having regard to the concessions of the parties, I find that contributions by the parties to both assets and superannuation were equal.
SECTION 75(2) FACTORS
The wife is 58 years old and the husband is 70 years old. Both are in apparent good health. There was no evidence that the wife has any particular employment skills. Her English, while adequate for everyday situations, is not fluent. It was apparent from her evidence that she continued to successfully operate the business but I am satisfied that her capacity for gainful employment is likely to depend on retaining control of the business. The husband’s capacity for gainful employment is less clear. I accept that at 70 he is likely to experience difficulty in finding employment, although it is apparent from him continuing to run a small number of cattle and the purchase of machinery that he remains active and has useful skills. The evidence of the parties was unclear about any income generated by their properties other than the business but if they are not income generating they can be sold and the money invested in income generating assets. I consider that there ought to be an adjustment in the husband’s favour for s. 75(2) factors of about $218,000, a differential of about 8% of the pool, resulting in a division of 54% to the husband and 46% to the wife.
I propose to make orders that will result in the wife retaining the business and the property held by the family trust, subject to the existing mortgage. The debt owed by the family trust to G Pty Ltd will thus become a matter for her. The wife seeks the J Street, Suburb K property which will be transferred to her, subject to its existing mortgage. The other properties will be transferred to the husband, subject to existing mortgages.
The result is as follows:
| Description | Husband | Wife | Totals |
| 1 | G Pty Ltd t/a Town C Business | $678,019 | $678,019 |
| 2 | Woodward Family Trust (value of properties held in trust below) | ||
| 2(a) | B Street, Town C, NT (family trust) – business premises | $600,000 | $600,000 |
| 2(b) | D Street Suburb E, NT (family trust) | $430,000 | $430,000 |
| 3 | L Street, Town M, NT (joint) | $200,000 | $200,000 |
| 4 | P Street, Town Q, NT (joint) | $130,000 | $130,000 |
| 5 | S Street, Town C, NT (joint) | $190,000 | $190,000 |
| 6 | J Street, Suburb K, Qld (joint) | $335,000 | $335,000 |
| 7 | T Street, Town Q, NT (husband sole owner) | $250,000 | $250,000 |
| 8 | NAB Business Account (…93) | $10,000 | |
| 9 | NAB Account (…73) | $1,500 | |
| 10 | CBA Account (…92) | $1,500 | |
| 11 | Husband’s current bank accounts | Unknown | |
| 12 | Husband’s cryptocurrency investment | Unknown | |
| 13 | Husband’s investments in the Country U | Unknown | |
| 14 | Motor Vehicle 2 | $4,000 | |
| 15 | Motor Vehicle 6 | $3,000 | |
| 16 | Motor Vehicle 7 | $3,000 | |
| 17 | Motor Vehicle 5 | $1,000 | |
| 18 | Vehicle 9 | $7,000 | |
| 19 | Motor Vehicle 13 | $3,000 | |
| 20 | Motor Vehicle 3 | $500 | |
| 21 | Motor Vehicle 4 | $500 | |
| 22 | Motor Vehicle 14 | $4,000 | |
| 23 | Vehicle 10 | $2,500 | |
| 24 | Vehicle 11 | $100 | |
| 25 | Water Tank | $200 | |
| 26 | Cattle | $20,000 | |
| 27 | Car Collection | $500 | |
| 28 | Generators | $4,000 | |
| 29 | Motorbike | $4,000 | |
| 30 | Motor Vehicle 12 | $3,000 | |
| 31 | Machinery purchased by husband at W Company | $26,939 | |
| Total Assets | $854,239 | $2,059,019 | $2,913,258 |
| Add-Backs | |||
| 32 | Cash withdrawals made by husband | $750,000 | |
| Total | $1,604,239 | $2,059,019 | $3,663,258 |
| Liabilities | |||
| 33 | Woodward Family Trust owes G Pty Ltd | $439,991 | |
| 34 | NAB Mortgage …16 D Street Suburb E (family trust) | $208,276 | |
| 35 | CBA Home Loan Account …07 – P Street, Town Q and S Street, Town C (joint) | $117,000 | |
| 36 | CBA Home Loan Account …26 J Street, Suburb K | $205,000 | |
| Total Liabilities | $117,000 | $853,267 | $970,267 |
| Net Assets | $1,487,239 | $1,205,752 | $2,692,991 |
| Superannuation | |||
| 37 | Super Fund 1 | $72,283 | |
| 38 | Super Fund 2 | $9,078 | |
| Total Superannuation | $9,078 | $72,283 | $81,361 |
| Total Assets and Superannuation | $1,496,317 | $1,278,035 | $2,774,352 |
| 54% to husband/46% to wife |
There was evidence that various properties are cross-collateralised. The parties may need to negotiate with the banks about the most efficient way to deal with those issues. In view of the husband’s limited engagement with the proceedings at times I will give liberty to apply to resolve any difficulties. As my retirement is nigh another judicial officer may need to deal with those matters.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 6 July 2023
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