Yeung & Tsang
[2022] FedCFamC1F 810
Federal Circuit and Family Court of Australia
(DIVISION 1)
Yeung & Tsang [2022] FedCFamC1F 810
File number(s): SYC 6734 of 2021 Judgment of: HARTNETT J Date of judgment: 28 October 2022 Catchwords: FAMILY LAW – PROPERTY – Adjustment of property assets – Where it is just and equitable to adjust the parties’ property interests – Where the parties lived apart for employment reasons and for many years but contributed all of their income – Where there was a joint bank account – Where otherwise the parties kept separate bank accounts – Where the parties have three properties, one in City J and two in Australia – Where the husband is earning and has historically a higher income than the wife – Where the wife is currently unemployed – Where the wife has mental health issues – Where there is one adult child of the marriage – Where the husband has remarried – Contributions assessed equally save for those post separation earnings of the husband – A 5 per cent adjustment in the wife’s favour under s 75(2) matters – Husband to retain the two properties in Australia and the Wife to retain the City J property – Division of 45 per cent to the husband and 55 per cent to the wife should be made. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 75(2), 79, 90SM, 90XC
Cases cited: Bell & Nahos [2016] FamCAFC 244
Bevan & Bevan (2013) FLC 93-545
Dickons & Dickons (2012) 50 Fam LR 244
Mallet v Mallet (1984) 156 CLR 605
Stanford v Stanford (2012) 247 CLR 108
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance Number of paragraphs: 80 Date of hearing: 6 – 7 October 2022 Place: Heard in Parramatta, delivered in Melbourne Counsel for the Applicant: Mr Morahan Solicitor for the Applicant: Accuro Maxwell (Sydney) Counsel for the Respondent: Ms Coulton Solicitor for the Respondent: Zhang Shijing Lawyers ORDERS
SYC 6734 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS YEUNG
Applicant
AND: MR TSANG
Respondent
order made by:
HARTNETT J
DATE OF ORDER:
28 OCTOBER 2022
THE COURT ORDERS THAT:
1.Within 90 days of the date of these orders, and, contemporaneously:
(a)the wife do all things and sign all documents necessary to transfer to the husband, at the husband’s expense, all of her right, title and interest in the real property known as and situated at C Street, Suburb D in the State of New South Wales, being the whole of the land comprised in Certificate of Title Folio Identifier Auto Consol … (“the Suburb D Unit”).
(b)the husband do all things and sign all documents necessary to secure a release of the wife from any and all liability with respect to the mortgage on the Suburb D Unit to E Bank (registered mortgage number: …) and associated home loan (account number …77);
(c)the husband do all things and sign all documents necessary to transfer to the wife, at the husband’s expense, all of his right, title, and interests in the real property known as and situated at F Street, Suburb G, City J (“the City J Apartment”);
(d)the husband do all things and sign all documents to secure a release of the wife from any and all liability with respect to security secured against the City J Apartment save for any secured liability acquired by the wife in order to make the payment referred to in Order 1(e) herein to the husband, with the wife to be responsible for such liability; and
(e)the wife pay or cause to be paid to the husband the sum of $29,447.80.
THE COURT DECLARES THAT:
2.The husband shall remain the sole legal and beneficial owner of the property known as and situated at H Street, Suburb K, in the State of New South Wales, being the whole of the land comprised in the Certificate of Title Folio Identifier Auto Consol … (“Suburb K House”) to the exclusion of the wife.
THE COURT FURTHER ORDERS THAT:
3.Save as otherwise may be provided for in these orders, each party retain, to the other party’s exclusion, all of their right, title and interest in:
(a)all other real and personal property (including choses-in-action and shares) registered in the name of or in possession of such party, or to which that party is legally or beneficially entitled, as at the date of these orders;
(b)all monies standing to their credit in any bank account in their sole name and in any bank account held by a party jointly with a third party;
(c)any insurance policy in their sole name; and
(d)any superannuation or employment related benefits accrued in their sole name.
4.Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders save as otherwise ordered herein.
5.Each party shall be solely liable for and indemnify the other in respect of their individual debts of whatsoever nature and kind in their name, including but not limited to any credit card liability.
6.Each party bear their own costs of and incidental to the proceedings.
7.There is liberty to the parties to apply to the chambers of Hartnett J with respect to any matter pertaining to the operation of these orders.
8.Otherwise all extant applications are dismissed and the matter be removed from the list.
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 the pseudonym Yeung & Tsang has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
Preliminary
The matter before the Court is a proceeding wherein each of the parties seek an alteration of their property interests pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”).
By Initiating Application filed on 15 September 2021, the wife sought leave, pursuant to s 44(3) of the Act, to file proceedings seeking property orders. Upon leave being granted by consent order made on 22 May 2022, the wife sought final property orders which included that she retain the real property known as and situated at F Street Suburb G, City J (“the City J Apartment”); and that the husband retain the two real properties known as and situated at C Street, Suburb D in the State of New South Wales (“the Suburb D Unit”), which has a mortgage encumbrance, and H Street, Suburb K in the State of New South Wales (“the Suburb K House”). The wife occupies the City J Apartment. The husband does not occupy the Suburb D Unit nor the Suburb K House. He is also living in City J.
By his Response filed 9 November 2021, the husband sought property orders (in the event leave was granted to the wife to proceed out of time) which, relevantly, provided for the City J Apartment to be sold with the net proceeds to be divided equally between the parties; for the wife to retain the Suburb D Unit subject to its mortgage encumbrance; and for the husband to retain the unencumbered Suburb K House.
On 21 September 2022, the husband filed an Amended Response whereby he sought orders including the sale of the Suburb D Unit; for the wife to make a payment to the husband of $500,000 from that sale; and for the husband to transfer to the wife his interest in the City J Apartment. The husband would retain his sole proprietorship of the Suburb K House.
At the commencement of the trial, the husband indicated that he no longer sought the orders as set out in his Amended Response to Final Orders filed 21 September 2022. Indeed, his Counsel seemed to be unaware of that document. Instead, he sought orders that the three real properties owned by the parties be sold; that the total net proceeds of sale be divided equally between the parties; and that otherwise the parties retain any assets or liabilities in their possession or name. The husband’s position again altered in the running of the matter, such that at least on the question of the adjustment of the real properties, the husband joined with the wife in seeking orders in respect of the ownership of such real properties.
Accordingly, at the conclusion of the final hearing on 7 October 2022, the parties were agreeable, albeit they varied on terms, for the husband to transfer his interest in the City J Apartment to the wife, and for the wife to transfer her legal and/or equitable interests in the Suburb D Unit and the Suburb K House, to the husband. The husband agreed to take the Suburb D Unit subject to its mortgage encumbrance. The parties agreed they would otherwise keep those assets and liabilities in their respective names and possession, including the retention by each of them of their respective superannuation entitlements, save that the husband sought a payment from the wife in respect of the overall property resolution in a sum not specified by him.
The issue for the Court was thus what payment, if any, the wife should make to the husband. The answer to that question was dependent upon the quantification of the parties’ net asset pool as described hereafter. The wife ultimately sought a 55 per cent (to her) property adjustment of the asset pool as described by her. The husband ultimately sought an equal division of the asset pool as described by him. Those descriptions of the asset pool by each of the parties differed as discussed hereafter.
Material relied upon
The wife relied upon:
(1)an Initiating Application filed 15 September 2021;
(2)her trial affidavit filed 20 September 2022;
(3)a Financial Statement sworn by her and filed 20 September 2022;
(4)her financial questionnaire filed 15 September 2021;
(5)an affidavit of Dr L, clinical psychologist, filed 6 May 2022; and
(6)an Outline of Case filed 28 September 2022.
The husband relied upon:
(1)an Amended Response to Final Orders filed 21 September 2022;
(2)his trial affidavit filed 21 September 2022;
(3)a Financial Statement sworn by him and filed 30 September 2022; and
(4)an Outline of Case filed 5 October 2022.
The parties also relied upon those documents tendered as exhibits by each of them.
The standard of proof in this proceeding was the balance of probabilities.[1] Statements of fact in these reasons are findings of fact.
[1] Evidence Act 1995 (Cth) s 140.
While it is not necessary to comment upon the entirety of the evidence put before me, every piece of evidence relied upon by the parties has been read and carefully considered by me.[2]
[2] Bell & Nahos [2016] FamCAFC 244, [28]; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, [62].
I found each of the husband and wife to be truthful witnesses. They were respectful of each other, and had conducted themselves in an impressive way in their intertwined financial dealings over the many years of their marriage, and whilst residing for a not inconsiderable time in different countries.
Legal Principles
Section 79(1) of the Act provides that the Court may make such orders as it considers appropriate altering the interests of the parties in property. Section 79(2) of the Act provides:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
If the Court is satisfied that it is just and equitable to make an order altering the interests of the parties in property, s 79(4) of the Act sets out the matters which the Court must take into account when considering what order (if any) should be made.
Section 79(4) of the Act is as follows:
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The High Court of Australia (the “High Court”) in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) revisited the process for trial judges in altering property interests of parties pursuant to s 79 of the Act for married parties, and s 90SM of the Act for de facto couples. The High Court emphasised the requirement for the Court to establish firstly, that it be just and equitable in the particular circumstances of the case to make any alteration of property interests. In this process, the question presented by s 79(2) of the Act, namely, “whether, having regard to those existing interests, the Court is satisfied that it is just and equitable to make a property settlement order,”[3] must not be merged with, or supplanted by, the inquiries under ss. 79(4)/90SM(4) of the Act.[4] In determining whether it is just and equitable to make an order, the matters which can be taken into account do “not admit of exhaustive definition.”[5] However, there must be a “principled reason for interfering with the existing legal and equitable interests of the parties to the marriage.”[6]
[3] Stanford v Stanford (2012) 247 CLR 108, [37].
[4] Stanford v Stanford (2012) 247 CLR 108, [51].
[5] Stanford v Stanford (2012) 247 CLR 108, [36] referring to Mallet v Mallet (1984) 156 CLR 605, 608 per Gibbs CJ.
[6] Stanford v Stanford (2012) 247 CLR 108, [41].
The parties sought that the Court make a just and equitable alteration of their property interests, including superannuation interests, acknowledging that pursuant to s 90XC(1) of the Act a superannuation interest is to be treated as property. The parties’ marital relationship is at an end, and they each conceded that there must be a division of their property in the circumstances described in these reasons.
Background
The husband was born in 1964 and was 58 years at trial. Following the parties divorce, and in late 2019, the husband remarried. He resides with his wife in City J. The wife was born in 1967 and was 55 years at trial. The wife has not re-partnered and resides alone in the parties’ City J Apartment.
The parties commenced their relationship in late 1991 and commenced cohabitation in 1993 following their purchase of the property known as and situated at M Street, City J (“M Street Apartment”). At the time both parties were in employment.
In late 1994, the parties married in City J.
In 1995, the parties purchased their second property known as and situated at N Street, City J (“the N Street Apartment”)
In 1997, the parties’ adult son Mr B was born. Following the child’s birth, the wife took little time off work, resuming full-time employment in or around early 1998.
In late 1998, the parties purchased, as joint tenants, the property known as and situated at F Street, Suburb G, City J (“the City J Apartment”).
In early 2006, the parties and their child obtained permanent residency in Australia.
In early 2007, the husband and wife discharged the City J Apartment mortgage.
In mid-2008, the wife lodged a claim for payment of accrued benefits due to her upcoming permanent departure from City J. She received a sum of local currency (approximately $196,000 AUD) which was deposited into the parties’ joint account.
In mid-2008, the wife and the parties’ son, then aged 10 years, arrived in Australia. The wife obtained rental accommodation in Suburb D and otherwise made all necessary arrangements to establish the parties’ child in Australia, including his schooling and extra-curricular activities. She had the sole care of the child. As a consequence, the wife did not obtain employment, compatible with her responsibilities for the sole care of the child, until late 2009.
In 2010, the wife and child were granted Australian citizenship.
In December 2010, the wife purchased the Suburb D Unit.
In 2011, the City J Apartment, in which the husband had resided since the wife’s departure from City J, was rented out by the parties, with the rental income being deposited in the parties’ joint bank account for their mutual use. At that time, the husband’s employment required him to relocate to Country O.
In late 2014, the husband’s employment contract was terminated and he migrated to Australia, to join his wife and son.
In 2015, the husband purchased the Suburb K House. The parties moved into this property shortly thereafter and commenced renting out the Suburb D Unit. The wife received the net rental income for this property from that time. Her receipt of that rental continued until the trial. The net income was never large, being approximately $4,000 in the last financial year. The wife applied such income to reduction of the mortgage secured over the property, and on rare occasion to her living expenses.
The parties’ relationship came to end around February 2016 on the husband’s evidence, and June 2016 on the wife’s evidence. Nothing turns on that. The parties separated.
In mid-2016, the wife left Australia and returned to City J, leaving the parties’ son in the care of the husband. The wife obtained employment. The child was then in Year 12 at high school. The husband remained in Australia, unemployed and caring for the parties’ son until mid-2018, when the husband also returned to City J.
The husband commenced employment in City J in mid-2018. He continues to be employed.
In early 2020, the husband commenced proceedings in City J seeking the sale of the City J Apartment and for those proceeds of sale to be divided equally between the parties. The wife opposed that application. In mid-2021, the local High Court held that the wife would not suffer hardship if the City J Apartment was sold. Following that decision, the wife filed an appeal and a stay application. In mid-2022, the wife’s appeal was heard and an order granting the stay of the sale of the City J Apartment was granted pending the outcome of these proceedings.
In mid-2021, the wife was made redundant. The wife was subsequently employed by P Company a short time later in 2021 before her employment was terminated in late 2021. Since that time the wife has sought employment but remains unemployed.
Issues for determination
The parties have largely kept their finances separate since the wife’s return to City J in 2016. The wife argued that the following assets should be included in the total asset pool:
(1)the husband’s E bank account (…33) with a balance of approximately $107,640 AUD;
(2)the husband’s joint bank account with his wife with E Bank (…33) with his half share being approximately $134,435 AUD;
(3)the husband's joint savings bank account with his mother (…81) with his half share being approximately $161,277 AUD;
(4)the husband’s Insurance Policy 1 which has a balance of approximately $44,700 AUD;
(5)the husband’s Insurance Policy 2 which has a balance of $54,896 AUD; and
(6)the husband’s Insurance Policy 3 which has a balance of $51,577 AUD
which is a difference of $554,525 between the parties asset pools.
The husband contended that none of the above funds should be added to the asset pool, largely on the basis that they were post-separation earnings, a matter conceded by the wife. The monies are part of the assets held by the parties or either of them at trial, but contributed to entirely by the husband.
There was no evidence before the Court about the income and/or earning capacity and/or financial resources of the husband’s wife save that it was the husband’s evidence that his wife had purchased a property in her sole name, and in respect of that purchase, his mother had advanced approximately $514,403 AUD by way of loan, and that the husband and his wife had otherwise contributed toward the purchase price a sum of approximately $771,604 from their joint account.
Prior to trial the wife cancelled her Insurance Policy 2, which the wife had from 2000, and received a sum of approximately $6,687 AUD. The wife asserted that these monies were used by her to pay for her legal fees. The wife also cashed out her Insurance Policy 4, which the wife had from 2000 and received $10,000 AUD.
Asset pool
The following table outlines the legal and equitable interests of the parties as determined by the Court including superannuation:
Assets and Liabilities Ownership Value The City J Apartment Joint E $3,197,416 AUD Suburb D Unit
(Less Mortgage)Wife $830,000
($297,469)
Equity = $532,531Suburb K House Husband $1,550,000 E Bank – …49 Joint Nominal Country O Bank Wife Nominal Life Insurance Wife Account closed The husband’s post separation contributions E Bank …33 Husband E $107,640 AUD E Bank account …33 (Joint account with current wife) Husband’s half share E$134,435 AUD Q Bank savings account …81 (Joint account with mother) Husband’s half share E$161,277 AUD Insurance Policy 1 (Policy number …48) Husband $44,700
(…)Insurance Policy 2 (Policy number …59) Husband $54,896
(…)Insurance Policy 3 – …89 Husband $51,577
(…)Superannuation Ownership Value Superannuation Fund 1 Wife $66,661 E Bank Wife E$4,882 (…) Insurance Policy 5 Husband $86,170 Superannuation Fund 2 Wife E$46,379 (…) Insurance Policy 6 Wife E$765
(…)Total net assets excluding superannuation $5,834,472 Total net assets including superannuation $6,039,329 Is it just and equitable to make property orders based on the parties’ relative contributions?
I am satisfied that it is just and equitable to make orders adjusting the property interests of the parties. The parties urge the Court to do so.
Whilst I have considered as a precondition to making an order for property settlement whether it is just and equitable in all the circumstances of the particular case to make such an order, the Full Court of the Family Court in Bevan & Bevan (2013) FLC 93-545 at [86] made clear that the just and equitable consideration is one that “permeat[es] the entire process”. I will now turn to the contributions of the parties.
Contributions
An assessment of contributions is “holistic” in nature.[7]
[7] Dickons & Dickons (2012) 50 Fam LR 244.
The husband and the wife each financially contributed and worked very hard, to support the family unit. At the commencement of their relationship, neither party owned any property of significance. Throughout their marriage, the husband and the wife maintained a joint bank account which each party would voluntarily transfer funds to from bank accounts held in their sole names.
The parties were working in the computer industry at R Company when they commenced their relationship. In 1993, they purchased the M Street Apartment for a sum of money (approximately $312,141 AUD). The wife asserted that the deposit of a sum of money was paid by the parties equally. It was the husband’s evidence that his mother advanced the parties a sum of money but that the parties repaid his mother over a number of years. The wife denied the husband’s mother paid the deposit. It is not necessary for me to make a finding as to this matter. Even if the husband’s mother did pay the deposit as asserted by the husband, the parties quickly repaid her on his evidence. The parties otherwise agreed that there was a joint mortgage which the parties jointly repaid.
In 1994, the wife was working full time earning approximately $2,600 AUD per month and the husband was working full-time earning approximately approximately $8,095 AUD per month.
In 1995, the wife commenced working with the S Bank.
In 1995, the parties purchased the N Street Apartment for approximately $362,411 AUD. The husband’s evidence was that he received approximately $54,172 AUD by way of loan from his parents which he applied toward the property purchase. Such monies as were borrowed from the husband’s parents were again, on the husband’s evidence, repaid by the parties and from the husband’s income. The wife denied the husband’s parents paid the deposit and asserted that the parties used their joint savings toward the purchase of that property. Again, it is not necessary for me to make a finding as to this evidence. The parties agree a mortgage was taken out by the parties with the S Bank, the wife’s employer. The parties agreed the wife’s employment with the S Bank enabled the parties to obtain a lower interest rate. The monthly mortgage re-payments were directly debited from the wife’s earnings.
Following the purchase of the N Street Apartment, the parties rented out the M Street Apartment. The rent covered the cost of the mortgage over the M Street Property.
In late 1998, the M Street Apartment was sold for approximately $325,032 AUD with the net sale proceeds going toward the purchase of the City J Apartment. The City J Apartment was purchased in 1998 for a sum of approximately $893,235 AUD with the husband and wife each contributing one-half of the deposit payment. The wife’s employment with the S Bank again enabled the parties to obtain a lower interest rate compared to the market mortgage rate in City J at that time. The husband’s evidence was that the parties borrowed a sum of approximately $573,480 AUD from the S Bank. The wife could not recall the exact amount. The monthly mortgage repayments were approximately $3,035 AUD which were deducted from the wife’s income. The husband’s further evidence was that the parties borrowed the balance of funds needed for the purchase from the husband’s mother. The wife conceded there was a loan from the husband’s mother, however the wife was unaware of the total sum borrowed. Again, the monies advanced by the husband’s mother were repaid by the parties out of the husband’s income, with such loan being fully repaid by 2005. Whilst the wife’s income went in large part to the mortgage repayments, the husband’s income went to repayment of his mother’s income and, otherwise, paid for most of the parties remaining expenses, before contributing to the parties’ joint savings as represented by their joint account into which both the husband and wife deposited their respective remaining income. The husband at that time, and continuing, was earning approximately two to three times more than the wife per annum. The husband’s further evidence, not challenged by the wife, was that the husband applied approximately $175,000 AUD when received by him in 2006, from a government scheme in City J, to the City J Apartment mortgage.
In late 1998, the N Street Apartment was sold at a net loss for a sum of approximately $346,878 AUD.
Between 1998 and 2001, the paternal and maternal grandparents cared for the parties’ child whilst the husband and wife were at work. The wife returned home from work at approximately 6.30pm to cook dinner and prepare the child for bed, as the husband typically finished work around 8.00pm. In 2002, the child commenced kindergarten. The wife attended to the child’s needs, and juggled them around her work commitments. The husband’s working hours remained long.
In mid-2008, the wife and child relocated to Australia, as agreed between the parties. The husband remained in his employment in City J which was highly remunerated.
The Suburb D Unit was purchased in late 2010 for $560,000 in the wife’s sole name. The deposit was $196,000, which the wife paid from her released “Superannuation Fund 2” monies, a fund similar to superannuation in Australia, which had accumulated over the wife’s 13-year employment in City J. The wife also paid the stamp duty of $20,710 less the $7,000 First Homeowner Grant Scheme refund. The wife initially took out a loan of $350,000 to purchase the Suburb D Unit. The husband, however, subsequently transferred $364,000 to the wife to discharge the mortgage.
The parties both benefited from the City J Apartment being rented out from 2011. The rent of approximately $5,666 AUD a month was paid into the parties’ joint account.
In early 2015, the Suburb K House, which is unencumbered, was purchased for $1,350,000 AUD. It was agreed that the 10 per cent deposit of $135,000, was paid from the wife’s E Bank account which represented both parties’ funds. The wife refinanced the Suburb D Unit with E Bank and obtained a loan of approximately $350,000 which she transferred to the husband to apply to the Suburb K House. The husband completed the Suburb K House purchase, in cash, of approximately $866,000. This money came from the rent collected from the City J Apartment, and the parties’ joint bank account into which the husband had contributed his significant income.
In or around early 2015, the Suburb D Unit was rented out by the wife to assist with payment of the new mortgage. The rent was in or around $600 to $640 per week. From that sum, the wife paid the monthly mortgage repayment of $1,238.98, council rates, the real estate agents management fees, strata fees and other outgoings. The wife’s evidence was that after the payment of all outgoings, and the mortgage, she retained little to no after tax profit. The wife has continued to meet the mortgage repayments of the Suburb D Unit, and attend to the payment of all outgoings to the present time. She has correspondingly been in receipt of the rental income which as a net amount has been relatively minimal.
Between mid-2008 and late 2014, the wife solely cared for the child in Australia. During this time the wife worked close to home, from late 2009, and attended to the day-to-day household chores of herself and the child. The husband visited the wife and child approximately four times a year. In 2008-2009, the husband remitted $34,000 AUD to the wife and child in Australia. Following the wife obtaining a job in 2009, whereby she earnt $60,000 per annum, or $3,000 per month, the husband stopped sending financial support to the wife and the child save that he paid for the child’s educational expenses. He lived in the parties’ City J Apartment, with considerable income being approximately $500,000 AUD a year gross, which he saved as to a large part, and applied for the benefit of the family. He could have provided greater financial assistance in that time, which would have made life easier for the wife and child.
Between mid-2016 and mid-2018, the husband solely cared for the parties’ then adult child, aged 18, whilst the child was in his final year at high school and, subsequently, attending university. During that time the husband had the benefit of residing rent and mortgage free in the Suburb K House. Likewise, the wife had the benefit of residing rent and mortgage free in the City J Apartment but not commencing until mid-2017. That benefit however continued until trial.
In all of the circumstances as described above, I am satisfied that the parties myriad of contribution until mid-2018 should be assessed equally. Thereafter, the husband’s contributions as represented by his various bank accounts are entirely those of the husband. A matter conceded.
Relevant section 75(2) matters
Not all of the matters set out in s 75(2) of the Act were relevant to the proceeding. Only those relevant are addressed.
Section 75(2)(a) – the age and state of health of each of the parties
The husband is 58 and in good health. The wife is 55 and suffers from mental health issues.
Section 75(2)(b) – 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
The husband is employed in a senior role earning approximately $8,400 per week (approximately $436,800 per annum gross). His taxation payable in City J is less than in Australia so that his net income is higher, being approximately $375,000 AUD.
The wife is unemployed. Her mental health issues have adversely impacted her ability to gain successful or any current employment. Historically, the wife’s income and earning capacity has been significantly inferior to that of the husband.
The wife consulted a psychiatrist in late 2018 and mid-2021, who prescribed her a number of medications to manage her mental health issues. Registered clinical psychologist, Dr L (“Dr L”), assessed the wife on three occasions in late 2021 and prepared a report dated late 2021. This evidence was unchallenged by the husband. The wife reported to Dr L that she had “persistent depression including low mood, fatigue, low self-esteem, and chronic insomnia”.[8] Dr L was of the opinion that the wife presented with significant features of Autism Spectrum Disorder. He considered that she had difficulties in social interactions; an impaired ability to read facial cues; and stated that the wife could be described as “generally gloomy, pessimistic, overly serious, quiet, passive, and preoccupied with negative events.”[9] Dr L was further of the opinion that the wife appeared “apathetic, dull, quiet, colourless, vague, aloof” and that she was “socially awkward, withdrawn, introverted, and self-conscious”.[10] These features, and the wife’s addressing of them, effect the wife’s present ability to be gainfully employed. She has however the necessary intellectual capacity and in my view has motivation to resume employment. She has worked hard all her life.
[8] Affidavit of Dr L filed 6 May 2022, paragraph 26.
[9] Affidavit of Dr L filed 6 May 2022, paragraph 36.
[10] Affidavit of Dr L filed 6 May 2022, paragraphs 37-38.
The parties’ property and financial resources are otherwise described elsewhere in these reasons. It is clear on the evidence that the husband has considerable capacity to amass savings and quickly repay loans advanced from his mother.
Section 75(2)(c) - whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
Neither party has an obligation to support their child.
Section 75(2)(e) & 75(2)(m) – the responsibilities of either party to support any other person and the financial circumstances relating to the cohabitation of either party with another person
As referred to at [20], the husband has remarried. Other than the fact that he has a shared bank account with his current wife, and that she has acquired a property in her name as funded by her, the husband and his mother, the husband has not disclosed any information as to the occupation, income, and financial circumstances of his wife. I accept however as truthful his evidence that he was unaware he was required to do so.
The husband, otherwise, pays an allowance to his mother from his own income in the sum of approximately $1,000 to $1,200 per month. He described this as a sum to show his concern and love for his mother; which I accept is a cultural norm. In addition, he makes loan repayments to his mother for the monies advanced to his wife for the purchase of a property in her name, where the husband resides. The husband affirmed he has repaid $247,201 of the $514,403 advanced by his mother to his wife.
Section 75(2)(f) – the eligibility of either party for a pension, allowance or benefit under any law or any superannuation fund and the rate of such pension, allowance or benefit being paid to either party
The husband and wife each have superannuation entitlements. The parties did not seek that the Court make a superannuation splitting order. I have taken into account that the wife’s entitlements are slightly greater than those of the husband, but note that the husband’s ability to earn income, greatly exceeding that of the wife, provides him correspondingly with an ability to further acquire superannuation entitlements that greatly exceed any the wife may hereafter acquire. In my view, the justice and equity of the matter requires no equalisation of superannuation benefits, but rather a retention by each of the parties of that which they have. This was a position essentially adopted by the parties in any event.
Conclusions as to s 75(2) factors
The wife proposed an adjustment of 5 per cent in the wife’s favour having regard to the matters in s 75(2) of the Act. The husband did not concede this apportionment. In my view, the wife’s proposal is a warranted adjustment to that part of the asset pool that does not include the monies entirely contributed to by the husband post separation to ensure justice and equity between the parties. Those post separation earnings are another relevant matter to be considered by the Court.
Conclusion
55 per cent of the asset pool excluding superannuation entitlements, but including the husband’s post separation contributions is a sum of $3,208,959.60. The wife seeks this adjustment of property interests.
50 per cent of the asset pool excluding superannuation entitlements and excluding the husband’s post separation contributions is $2,639,973.50. The husband seeks this adjustment of property interests.
The differential is $568,986.10. If the wife were to receive, the Court not being bound by the parties orders sought, a 60 per cent adjustment of the pool as set out in [76] above, the wife would receive a sum of $3,167,968.20.
Justice and equity in the circumstances of this case requires that the wife have an ability to become the sole registered proprietor of the City J Apartment and to continue her occupation of that property. It also requires the husband’s post separation contributions to be recognised.
The value of the City J Apartment is $3,197,416.
I am satisfied that orders which provide for the wife to receive 60 per cent of the parties asset pool as described in [76] above gives proper recognition to those matters which favour the wife in a s 75(2) consideration, and to the fact of the husband’s 100 per cent contributions post mid-2018 as conceded by the wife. Accordingly, I shall make orders in these terms to give effect to a just and equitable division of the parties property interests.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett.
Associate:
Dated: 28 October 2022
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