Zhenya & Ning
[2023] FedCFamC1F 740
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Zhenya & Ning [2023] FedCFamC1F 740
File number: MLC 8897 of 2021 Judgment of: CARTER J Date of judgment: 29 August 2023 Catchwords: FAMILY LAW – CHILD – where the husband seeks equal shared parental responsibility – where this is disputed by the wife – where the parties dispute as to changeover arrangements for the child - whether international travel with the child should be permitted
FAMILY LAW – PROPERTY – whether it is just and equitable for any orders to be made – orders made
Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA
Cases cited: Aleksovski v Aleksovski (1996) FLC 92-705
Bevan v Bevan (2013) 279 FLR 1
Bielen & Kozma (2022) 66 Fam LR 59
Dickons v Dickons (2012) 50 Fam LR 244
Stanford v Stanford (2012) 247 CLR 108
Division: Division 1 First Instance Number of paragraphs: 150 Date of last submissions: 4 August 2023 Date of hearing: 13 – 16 June 2023 Place: Melbourne Counsel for the Applicant: Andrew Barbayannis Solicitor for the Applicant: Clancy & Triado Respondent Litigant in person ORDERS
MLC 8897 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ZHENYA
Applicant
AND: MS NING
Respondent
ORDER MADE BY:
CARTER J
DATE OF ORDER:
29 AUGUST 2023
THE COURT ORDERS THAT:
Parenting
1.The parties have equal shared parental responsibility for the child X born 2019.
THE COURT ORDERS BY CONSENT THAT:
Changeover
2.For the purposes of changeovers that do not occur at school/childcare, the wife shall deliver the child to the husband’s home at the commencement of time, and the husband shall deliver the child to the wife’s home at the conclusion of time, unless otherwise agreed.
THE COURT FURTHER ORDERS THAT:
Airport Watch List Order
3.Each of MS NING and MR ZHENYA and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of X born 2019 from the Commonwealth of Australia.
4.IT IS REQUESTED THAT the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List for a period of three years.
5.Upon expiration of the period referred to in Order 4 hereof, and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch List.
Property
Suburb E property
6.The parties forthwith do all acts and things and sign all documents as may be required to place the property at D Street, Suburb E in the State of Victoria on the market for sale (“the Suburb E property”).
7.For the purposes of the sale of the Suburb E property:
(a)the parties forthwith jointly appoint a selling agent to conduct that sale;
(b)in the event the parties do not agree as to the selling agent, the husband nominate a list of three proposed selling agents within 14 days of these orders and the wife select an agent from that list within a further seven days. In the event the wife fails to select an agent within seven days of the husband providing her with a list of three proposed selling agents, the husband shall determine the selling agent;
(c)the parties thereafter do all acts and things as may be necessary to appoint the selling agent and comply with all reasonable directions of the selling agent regarding the sale, including preparing the property for sale; and
(d)the sale be on such terms and conditions as are agreed and failing agreement as nominated by the selling agent.
8.The proceeds of the sale of the Suburb E property be applied as follows:
(a)firstly to pay the costs, commissions and expenses of the sale;
(b)secondly to meet all costs relating to the discharge of the B Bank Loan secured over the property (which is currently at approximately $746,384);
(c)fourthly, to pay the wife the sum of $X calculated as follows:
$X = [(A – $159,209) x 45%] – $251,628.
where A is the net proceeds of sale after paying the costs, commissions and expenses of the sale and discharging the mortgage; and
(d)the balance to the husband.
9.Pending the sale, the husband pay the mortgage and other outgoings in relation to the Suburb E property.
Caveat over 2 F Street, Suburb G NSW
10.Within 14 days, and at her expense, the wife do all such acts and things and sign all such documents as may be required to withdraw the caveat lodged on her behalf over the property at 2 F Street, Suburb G, NSW.
Property to be retained by the husband
11.The husband retain to the exclusion of the wife:
(a)the property at H Street, Suburb J, NSW;
(b)the property at 1 F Street, Suburb G, NSW;
(c)the property at 2 F Street, Suburb G, NSW;
(d)Motor Vehicle 1 registered in his name;
(e)any moneys in any bank account in his name;
(f)his interest in C Building; and
(g)his superannuation entitlements with Superannuation Fund 1.
12.The husband be wholly responsible for, and indemnify the wife in relation to:
(a)the mortgages encumbering the properties he is to retain; and
(b)all monies loaned to him from his parents.
Property to be retained by the wife
13.The wife retain to the exclusion of the husband:
(a)the property in Region K, Country L registered in her name;
(b)Motor Vehicle 2 registered in her name;
(c)her jewellery;
(d)any moneys in any bank account in her name;
(e)her interest in M Pty Ltd; and
(f)her superannuation entitlements with Superannuation Fund 2.
THE COURT FURTHER ORDERS BY CONSENT THAT:
Property to be returned to the husband
14.Within seven days the wife provide to the husband:
(a)the Network Attached Storage (NAS);
(b)his Country L Identification Card, County L Bank Card and Country L Driver’s Licence; and
(c)his internet banking tokens.
THE COURT FURTHER ORDERS THAT:
Property to be returned to the husband
15.Within seven days the wife provide to the husband:
(a)his mobile phone, if she is able to locate that device; and
(b)the husband’s desktop PC.
Chattels to be purchased by the husband for the wife
16.Contemporaneously with the provision to the husband of the desktop PC, the husband:
(a)provide to the wife a new desktop PC with specifications not less than his desktop PC; and
(b)be restrained from disseminating or publishing any photographs stored on his desktop PC depicting the wife without the wife’s prior consent.
Miscellaneous
17.Unless otherwise specified in these orders, and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all property (including choses-in-action) owned by or in possession of such party as at the date of these orders;
(b)monies standing to the credit of the parties in any joint bank account are to be equally divided between the parties and any such account be forthwith closed;
(c)insurance policies remain the sole property of the owner named therein;
(d)each party otherwise retain for their sole use and benefit, their superannuation entitlements;
(e)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 these orders; and
(f)any joint tenancy of the parties, in any real or personal estate, is hereby expressly severed.
18.All extant applications are dismissed, and the matter removed from the list of pending cases maintained by the Court.
AND THE COURT NOTES THAT:
A.Pursuant to section 81 of the Family Law Act 1975 (Cth), the parties intend that these orders shall as far as practicable finally determine the financial relationship between them 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
JUSTICE CARTER
ISSUES IN DISPUTE
In this matter, there are both parenting and property applications on foot.
Parenting issues to be determined
The parties reached agreement about most aspects regarding parenting their daughter X, who was born in 2019. She is now four years old. Consent orders were made on the first day of the hearing. Those orders included provisions that X live primarily with her mother and that she live with her father five nights a fortnight and for half of the school holidays. During the hearing, the parties also reached an agreement as to changeover arrangements.
The matters which remained for me to determine were:
(a)the allocation of parental responsibility. The wife sought sole parental responsibility. The husband said the parties should equally share that responsibility;
(b)whether X should remain on the Airport Watch List until September 2026 as sought by the husband and opposed by the wife; and
(c)whether the parties should be permitted to travel overseas with X, and if so, the conditions for that travel.
Property issues to be determined
In relation to property matters, it was difficult to elicit the issues that I must determine. That was partly because the matters that were ultimately litigated had altered substantially and significantly from the trial material prepared by each party. It was also complicated by the wife choosing to become self-represented part way through the hearing.
Matters that were agreed
By the conclusion of the hearing the parties had reached agreement on the following issues:
(a)the Financial Agreement dated 29 June 2016 was not a Binding Financial Agreement, and the matter therefore fell to be determined pursuant to Part VIII of the Family Law Act 1975 (Cth);
(b)the properties at N Street, Suburb P, Q Street, Suburb P and R Street, Suburb S were not properties that could be treated as properties of the parties, and therefore would not be included in the pool. Those properties are held by T Pty Ltd (being an entity operated by the husband) as trustee for the Zhenya Family Trust. The husband’s parents are the appointors of the trust. It is a discretionary trust and he and his parents are the beneficiaries;
(c)the husband’s HECS debt and tax liability ought not be included in the pool; and
(d)the funds in T Pty Ltd as at the date of separation would not be notionally added back into the pool.
Issues that require determination
The following matters required my determination in relation to the asset pool:
(a)the quantum of the monies owed to the husband’s parents; and
(b)whether the funds from the sale of the property at U Street, Suburb V NSW, which the husband paid to his mother should be notionally added back into the pool.
As always, in property matters after determining the parties’ assets and liabilities, I must determine whether it is just and equitable to make any order. Provided I am so satisfied, I must then determine:
(a)what is the appropriate assessment of the parties’ respective contributions; and
(b)what adjustment, if any, is appropriate in light of the relevant considerations at s 75(2) of the Family Law Act?
Additionally, the husband sought orders requiring the wife return to him his desktop PC, and his mobile phone.
THE EVIDENCE
It has not been possible to include every aspect of each of the parties’ evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
The husband relied on:
(a)his trial affidavit filed 16 May 2023;
(b)his affidavit in reply filed 9 June 2023;
(c)his Financial Statement filed 16 May 2023;
(d)the affidavit of Ms W filed 16 May 2023; and
(e)the affidavit of Ms Z filed 16 May 2023.
The wife relied on:
(a)her Amended Response filed 4 June 2023; and
(b)her affidavit filed 4 June 2023.
The wife cross examined the husband but did not require his wife or his mother to give evidence. The husband did not seek to cross-examine the wife.
PARENTING
THE RELEVANT LEGAL PRINCIPLES
Section 60CA of the Family Law Act requires that in deciding whether to make a particular parenting order, I must consider the best interests of X as the paramount consideration.
The objects of Part VII of the Family Law Act include ensuring that a child has the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the child’s best interests; s60B(1)(a). The legislation provides that a child has the right to know and be cared for, and to spend time and communicate with both of their parents, and other persons significant to their care, welfare and development unless that would be contrary to their best interests; s60B(2).
As noted, the parties have agreed that X will spend substantial and significant time with her father. Orders have already been made to that effect by consent.
The two outstanding issues I must determine are the allocation of parental responsibility, and the question of overseas travel.
The Family Law Act requires me to take into account a range of matters as set out in s 60CC in determining what arrangements are in X’s best interests. The primary considerations require me to contemplate:
(a)the benefit to X of having a meaningful relationship with both of her parents, and
(b)the need to protect her from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.
In applying those primary considerations, I am required to give greater weight to the need to protect children from harm.
Section 60CC(3) of the Family Law Act sets out a raft of additional consideration that I must also take into account. In the recent Full Court decision of Bielen & Kozma (2022) 66 Fam LR 59 at [35], their Honours conveniently grouped those additional considerations as follows:
·Issues relating to the children – including their views, level of maturity, culture and relationships: ss 60CC(3)(a), (b), (g) and (h);
·Issues relating to the parents – including decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility: ss 60CC(3)(c), (ca), (f) and (i);
·Issues of family violence: ss 60CC(3)(j) and (k);
·The likely effect if a child’s circumstances are changed: s 60CC(3)(d);
·Practical difficulty of implementation: s 60CC(3)(e);
·Avoiding further proceedings: s 60CC(3)(l); and
·Other relevant matters: s 60CC(3)(m).
How should parental responsibility be allocated?
Pursuant to section 61DA of the Family Law Act, I must apply a presumption that it is in X’s best interests for her parents to have equal shared parental responsibility for her. That presumption does not apply if there are reasonable grounds to believe that a parent has engaged in family violence or abuse of the children. Alternatively, the presumption can be rebutted by evidence that it would not be in the children’s best interests if parental responsibility was shared.
The wife alleged the husband had subjected her to violence, control and intimidation. She detailed three specific incidents of violence that she characterised as being “the most serious”. These were all denied by the husband. There was no real testing of this evidence at trial, and I am unable to make findings regarding this issue.
The wife did have the benefit of an Intervention Order she obtained with the assistance of the police in 2021. That has expired and the wife deposed that she has not needed to seek an extension of that protection order.
There have been a handful of occasions post separation when the husband adopted a somewhat highhanded approach in relation to X. For instance, he enrolled her in an extracurricular without the wife’s knowledge; he retained her overnight after taking her to a musical and was out of communication until 11:00 pm that evening; and there appear to have been times he took X to obtain medical attention and not kept the wife fully informed.
Despite those matters, and very importantly, the parties have agreed X will spend substantial and significant time with her father. It is clearly envisaged by both parents that the husband will play a meaningful and important role in X’s life. Whilst at times the parties’ communication has not been ideal, there is no evidence that the parties have been unable to make joint decisions regarding X’s care, welfare and development. They have instead generally worked reasonably co-operatively. For instance, they have repeatedly reached agreements for the husband to spend additional time with X over the last few years. Similarly, during the course of the proceedings the parties were able to make child focussed arrangements between themselves. For instance, the husband agreed to keep X in his care during the trial, to enable the wife to manage and prepare her cross-examination and her submissions. The wife also agreed to the husband’s proposal for the changeover arrangements.
I am satisfied that both parents have much to offer X. They are both competent parents who should continue to play an important role in X’s long-term care, welfare and development. It is obviously in X’s best interests that her parents communicate more fully about her care, welfare and development, and keep each other properly and fully informed in a timely fashion. Whilst it may be uncomfortable at times for the parties to liaise and negotiate with each other – and care must be taken to ensure timely communication – I formed the impression that they were able to make decisions and communicate appropriately. There is obviously some distrust of each other. However, there was nothing in the evidence that suggested the parental relationship was so dysfunctional, imbalanced or uncooperative such that there could be no discharge of the obligations on the parents as set out in s 65DAC. Rather, I am satisfied the parties can consult each other and make a genuine effort to come to a joint decision. They have done so to date.
The question of travel and the Airport Watch List
The wife wishes to have X removed from the Airport Watch List and that both parents be at liberty to travel internationally with X.
The husband opposed X being removed from the Airport Watch List. He also opposed orders permitting X to travel abroad at this time and sought she remain on the Airport Watch List for a little over three years, to expire in September 2026. He did so on the basis that he asserted the wife is a flight risk. His evidence was that the wife had threatened on a number of occasions to take X to Country L. If the wife were to travel to Country L, and determined not to return, he said that would terminate his relationship with X, and deprive her of the benefit of having both parents meaningfully involved in her life.
It is the husband’s case that by September 2023, X will have settled into schooling in Australia, and the wife will have had the opportunity to adjust to her life here following the completion of the family law dispute.
The wife denied she was a flight risk or that she had ever threatened to remove X to Country L permanently. The wife said she lives in Australia; regards Australia as her home; and would return to live here where she has full time employment. She said her mother is applying for permanent residence here as well. She said she wants to retain the Suburb E property, and accordingly, she would have property in Australia. It is her evidence that X would be emotionally and culturally enriched by overseas travel, including to Country L to visit her maternal family.
The wife did unilaterally relocate to Sydney with X in September 2021. That was after the husband had instituted parenting proceedings pursuant to the Family Law Act. She only informed him after she had relocated with X. She did not return voluntarily – but was compelled to do so by orders made on 29 October 2021. In her closing, the wife said her return to Sydney following the parties’ separation was in circumstances where she had no support from friends and family in Melbourne.
X’s views on the issues in dispute are not relevant given her age.
X clearly has a close and loving relationship with both her parents. If X was able to travel to Country L she would be able to spend time with the maternal family. That would include additional time with her maternal grandmother, and the opportunity to meet her great grandfather, who is quite elderly and unable to travel to Australia.
As already observed, both parents are competent parents, who have played and will continue to play an important role in X’s life. They are well able to meet her needs and provide safe and appropriate parenting. They have both displayed an appropriate attitude to parenting, and to their daughter.
If X did travel overseas, she would be separated from her father for the duration of that travel. If she was retained overseas, that would be a significant change for her. She would be deprived of having a relationship with her father for a protracted period. That would likely cause her emotional and psychological harm. Country L is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. Recovering X from Country L, if she were retained there, could be difficult to achieve.
Conversely, if she were able to travel with her mother, X would have the opportunity to meet with and spend time with members of her mother’s extended family. She would also likely be enriched by exposure to the cultural traditions of her Country L heritage.
As noted, the wife asserted she was subjected to family violence by the husband. She outlined some specific events. These were denied by the husband. However, counsel for the husband did not cross-examine the wife about these matters, and accordingly, there was no real testing of the wife’s evidence.
If X was placed on the Airport Watch List, this would cause practical difficulties in terms of any future overseas travel. Whilst she remains on the list, the parties will need to return to Court to have X’s name removed for the duration of travel, even if the parties both consent to that travel occurring.
The wife advised she did want to travel in the near future with X. However, no firm dates were proposed and no detailed itinerary was provided. Accordingly, I do not know the proposed length of travel, and cannot assess the effect of such travel on X’s relationship with the father. If I make orders that X remain on the Airport Watch List, it is likely that the wife will bring an application in the near future seeking specific orders for travel.
It is clear that X would benefit substantially from travelling to Country L, spending time with relatives there, and being exposed to her parents’ cultural heritage and traditions. However, I must also consider the potential risks to X that would arise if she were taken overseas and retained outside Australia. That requires me to consider the likelihood of that occurring.
I have some concerns about whether the wife would return from abroad if she were permitted to travel immediately. She does not own property here. The orders I am making for property settlement will provide her with funds which she could use to relocate overseas. The wife will not retain the Suburb E property as she had sought. My determination as to what comprises the pool is significantly less than the wife sought, as is my determination as to her entitlement in that pool. I anticipate she will be greatly disappointed by my decision. The wife’s family are in Country L. She has not re-partnered in Australia. She unilaterally relocated interstate post separation and only returned after a contested hearing and orders being made requiring her to return.
The consequences for X if she were retained overseas would be significant. As outlined, she would be deprived of her relationship with her father. She would be removed from her community and routines in Australia.
I am, on balance, satisfied there is a real possibility the wife could retain X outside Australia. This places X at an unacceptable risk if she is removed from the Airport Watch List at this time and permitted to travel outside the jurisdiction.
In terms of that risk being mitigated, as observed, the wife’s proposal is to travel to Country L. The Hague Convention is not in effect between Australia and Country L. I have no evidence regarding whether there are other proceedings the husband could initiate to secure X’s return, or the costs of him doing so.
The wife offered a bond of $20,000. However I am satisfied that currently that amount would not be sufficient to realistically entice the wife to return or to enable the husband to take whatever action may be necessary to have X returned, if she were retained in Country L. I do not know the wife’s capacity to raise any further amount by way of bond.
For these reasons I am satisfied it is in X’s best interests that her parents have equal shared parental responsibility for her and that she remain on the Airport Watch List for a further three years. I am not currently of the view that there should be orders providing for the parties to have the ability to travel with X abroad. This is substantially because I have formed the view that if the wife travelled with her to Country L there is a real risk she may be retained there at this stage. Of course, it is still open to the wife to bring any further application she may wish to travel to Country L in that time, which I anticipate would provide detailed plans as to the proposed travel.
PROPERTY
ASSETS, LIABILITIES AND FINANCIAL RESOURCES AS AT THE DATE OF FINAL HEARING
The parties agreed in relation to most items in the pool. The husband conceded in closing that his HECS debt and tax liability ought not be included in the pool.
The parties did not agree as to:
(a)the mortgages owing on the property at 1 F Street (although this appeared to have been conceded by the wife at closing);
(b)the quantum of the monies owing to the husband’s parents, or how that should be treated; and
(c)whether the sum of $1,018,670, being the proceeds of the sale of the U Street property paid to the husband’s mother, should be notionally added back into the pool.
The mortgages owing on 1 F Street
There are three mortgages on that property. In the wife’s Outline she agreed that the amounts owing on those three facilities were $739,665, $402,518 and $223,037. However, the wife in her opening appeared to question those mortgages. My understanding is that her concern arose as a result of some funds having been placed into one of those mortgage facilities for a few months – reducing the mortgage owing to less than $1,000 – before being redrawn. I will return to that evidence later.
The husband produced bank statements for each of those mortgages showing the amount owing as at May 2023. Those statements had previously been provided to the wife’s lawyers and were tendered into evidence. There seems no reason for me to reject the husband’s evidence as to the mortgages on that property as at the date of the hearing.
What funds are owed to the husband’s parents?
What is the husband’s case in relation to the loans?
The husband’s case is that his parents loaned him funds to facilitate the purchase of multiple properties and to provide “a cash flow boost” to his business from time to time. He said his parents advanced the following monies:
(a)a total of $1,235,000 between 2008 to 2011, being funds advanced for the development of a property in Suburb Y NSW, and for the development of the property at 2 F Street (being adjoining properties subsequently consolidated into one block and nominated to be 2 F Street);
(b)in 2012 a total of $211,510 which he used to renovate the property at U Street;
(c)between 2013-2014, a total of $237,453 which he used to purchase the property at 1 F Street;
(d)in 2014 a total of $598,710 to purchase a property at AA Street;
(e)in 2015 a total of $429,175 to purchase a property at BB Street;
(f)in 2015 a total of $187,771 to purchase a property at CC Street;
(g)in 2017 $65,300 to meet the costs of the parties’ wedding;
(h)in 2017 $145,000, which the parties used to renovate the U Street property where the parties were then living;
(i)in 2017 $528,000 to purchase a property in H Street, Suburb J in NSW;
(j)in 2018 $171,200 to purchase the property at Suburb E;
(k)in 2019 a total of $399,600 to complete the purchase of and construct a dwelling on the Suburb E property; and
(l)in 2020 – 2021 a total of $302,208 to contribute towards the costs of construction at Suburb E. That construction has not been completed.
The husband carefully articulated each loan in his trial affidavit. He produced each of the loan agreements that was entered into between himself and his father, and the bank statements showing the monies being deposited into the husband’s accounts.
The husband’s evidence is that the total advanced by his father pursuant to the loan agreements was $4,512,437. The agreements specify repayments dates of between 10 to 15 years, and the accrual of interest at varying rates.
The husband said he made the following repayments to his parents:
(a)$140,000 has been paid as a result of monthly repayments of $2,000 commencing in 2017;
(b)$430,000 has been paid at the rate of $5,000 per month – being his remuneration for the work he does managing the Zhenya Family Trust properties; and
(c)three lump sum payments:
(i)$900,000 on 18 August 2021;
(ii)$1,018,670 on 8 October 2021 (being the proceeds of the sale of the U Street property); and
(iii)$700,000 on 26 October 2021.
After deducting what has been paid, the husband said the amount owing to his parents inclusive of interest as at the date of trial was $2,832,846. The husband’s evidence did not include how the interest on the loans had been calculated.
What is the wife’s case in relation to the loans?
When the wife filed her detailed trial affidavit on 4 June 2023 – after the husband had filed his trial affidavit - she did not deny the husband’s assertion as to monies owed to his parents. She did not dispute the quantum of the funds advanced or the figures he provided as to the total amount owing inclusive of interest. Nor did she dispute that the funds were to be repaid. She did not dispute interest was accruing. She did not assert the loan agreements were a fraud. In her list of issues to be determined at trial, none of those matters were identified by the wife. She did identify the sum of $1,018,670 (which the husband said was paid to his mother as a part repayment) as being an amount she sought be added back into the pool.
In the outline of case filed on 9 June 2023, on her behalf, the wife included funds owing to the husband’s parents at $2,832,846 as an agreed liability. Again that document did not identify that there was any dispute as to the husband’s parents being owed $2,832,846 or that the funds were genuine debts that had to be repaid. Again the wife did identify the sum of $1,018,670 as being an amount she sought be added back into the pool.
During the running of the trial, however, the wife resiled from what had appeared to be an agreed position in relation to there being an amount of $2,832,846 owed to the husband’s parents. She instead asserted that whilst funds had been borrowed from the husband’s parents over the course of the parties’ relationship, she did not know how much had been borrowed or what was currently owed.
From the bar table on 14 June 2023, the wife acknowledged that the sum of $1,430,450 was loaned by the husband’s parents. She also acknowledged that other monies had been advanced for the purchase and development of the properties at H Street, Suburb J and D Street, Suburb E. She acknowledged that his parents had advanced the sum of $167,333 for the development of Suburb E. However, she was unable to identify what other amounts she acknowledged had been advanced by the husband’s parents for the purchase and development of the property at Suburb J.
The husband asserted his parents had loaned a total of $528,000 towards the purchase of H Street, and a total of $873,008 for the purchase and construction of the property in Suburb E.
The following day the wife said that none of the monies advanced by the husband’s family should be included as a liability when determining the asset pool. She then modified that position and acknowledged;
(a)funds had been advanced to the husband from his parents; and
(b)those funds had to be repaid.
However, she said that the loans advanced by the husband’s father should be regarded as either fully offset or partially offset by the work the husband had undertaken to increase the value of property owned by the Zhenya Family Trust, and the income that property generates.
She did not provide a final or definitive figure as to what amount she admitted had been advanced, or what amount she acknowledged remained owing to the husband’s parents at the date of trial.
Are the loans genuine and repayable?
The wife did not cross-examine the husband about the veracity of the loans, the terms of the loans or the requirement that they be repaid. She asked him some questions regarding the funds advanced for the Suburb E property, and how they were spent. She did not ask questions regarding the advancement of any other monies. Nor did she challenge how the husband had calculated the interest component.
In her trial affidavit, the wife did not take issue with the husband’s calculations outlined in his trial affidavit that his parents had loaned $274,100 for the purchase of the Suburb E property and a further $598,908 for the construction on the property. She did depose that she contributed $100,000 and the husband contributed the same when the property was purchased. She said the balance of the monies were advanced by a mortgage. She did not explain where the $100,000 she contributed came from, nor where the additional funds to build the property came from. I note the husband said from the $274,100 loaned by his parents he transferred $100,000 to the wife and she then applied those funds at settlement. The wife did not deny that was the source of the $100,000 that she applied at the time the property was purchased.
The husband produced three separate loan agreements from 2018, 2019 and 2021 that specified funds being loaned to the husband from his father for the purchase and subsequent construction of the building in Suburb E, totalling $873,008. The validity of these loan agreements was not challenged by the wife.
The husband’s evidence was that the funds advanced were all put towards the Suburb E property. He said that he had a detailed record of all transactions made, paying trades, suppliers, materials and so on as all bank statements recorded the property addresses when payments were made for that property.
In her opening the wife said she had not seen the documents evidencing the funds spent on construction in Suburb E. Again, in her closing she said she had not been provided with the expense records regarding the construction costs. However, I understand she had been provided with copies of the husband’s bank statements. The husband’s evidence was that on those statements the payments out for each project are identified. Counsel for the husband said the husband’s discoverable documents were disclosed in the early and middle parts of 2022. More recently a link was provided to the wife so she could access to all the husband’s discoverable documents. Further updated discovery was provided in early June 2023 for the period from March 2023.
The wife said it was difficult for her to trace all the funds from the documents provided. It may indeed be difficult and time consuming, but if she wanted to challenge the husband’s evidence, she needed to do so. The wife also said some documents had been sent to her electronically, but she had been unable to open the link. She conceded she had not requested the documents be sent in another format. She also did not put to the husband any particular transactions that concerned her.
As observed, the husband did not articulate how he had calculated the interest component of the monies owed to his parents. However the wife did not challenge him in relation to that aspect of his case.
In terms of repayments that were made to the husband’s parents, the large lump sum repayments were made only after the parties’ separated. However, the monthly repayments were made throughout the parties’ relationship. That provided further evidence that the liability to the husband’s parents are genuine and required to be re-paid.
The husband’s evidence as to the funds advanced and owing to his parents, the terms of the loans, his evidence regarding regular repayments, and that the entire amount loaned together with interests is to be re-paid was both detailed and not challenged by the wife in any meaningful way at trial.
In circumstances where:
(a)the wife in her trial material filed on 4 June 2023 did not respond to or take issue with the husband’s detailed affidavit evidence filed on 16 May 2023 outlining the monies advanced, and the loan agreements;
(b)the wife did not adduce in her own material any evidence that the funds advanced by his parents did not have to be repaid, or that the loan agreements were not genuine;
(c)the wife acknowledged the debt of $2,832,846 as the agreed amount remaining as owed to his parents in her Outline of Case;
(d)the wife did not cross examine the husband about the veracity of the loans, the terms of the loans, how the interest was calculated on those loans, or the requirement that they be repaid; and
(e)the husband provided detailed and precise evidence as to loan agreements, evidence of the monies being paid in, and evidence as to repayments
I accept the husband’s evidence regarding the monies owed to his parents. There is no evidence upon which I can make any other finding.
It was only after the trial commenced that the wife resiled from what appeared to be an agreed position as to the sum of $2,832,846 being owed to the husband’s parents. In those circumstances, I do not draw any adverse inference from the fact that the husband’s father was not on affidavit as to the existence of or terms of the loans.
The wife’s ‘offset’ argument regarding the monies advanced from the husband’s parents
In terms of how the loans from the husband’s parents should be taken into account, as indicated, the wife suggested a novel approach. She said the husband had undertaken substantial work developing the property at R Street, Suburb S, being an asset of the Zhenya Family Trust, which now operates a business, generating a substantial income for the trust. As best as I understood the wife’s argument, she said the increase in the value of the property at R Street and the income from the business – which she said was attributed to the husband’s hard work, and her own contributions to that project – should somehow offset the amount the husband owed to his parents. I do not know whether the wife’s argument was that should entirely or just partially offset the monies owed.
The husband deposed to being separately remunerated for his work in managing the trust properties. The remuneration he generated was $5,000 per month. The husband’s evidence was that he did not retain that remuneration, but used it instead to repay the monies he owed to his parents. He has already included a monthly repayment of $5,000 in his calculations regarding what remains unpaid to his parents. The wife said, however, he should have been paid more for the work he did for the trust.
The wife conceded that the R Street property and business were not assets available for division between the parties. Moreover, this concept of the loans being reduced as a result of the increase in value of the R Street development was not put to the husband. It was not part of the wife’s evidence in her trial affidavit, nor identified as an issue in dispute anywhere in her material. It was not articulated as a submission in her Outline of Case.
In the circumstances, I reject the contention that any increase in the value of the R Street property and/or that any part of the income generated from the business operated by the Zhenya Family Trust out of the R Street premises can somehow be regarded as a repayment towards a personal liability the husband owes his parents.
Should the funds paid by the husband to his mother from the sale of the property at U Street, Suburb V, NSW be notionally added back into the pool?
The U Street property was owned by the husband prior to the parties’ marriage. It became the matrimonial home when the parties lived in New South Wales. It was sold in mid-2021 for over $2,500,000.
The husband paid the sum of $1,018,670 to his mother from those proceeds. The husband said that was a lump sum payment to reduce the funds owing to his parents made following a request for same from his mother.
The wife said the parties agreed to sell the U Street property as they were purchasing another property in Suburb DD. The wife said the parties accompanied the husband’s mother to an auction for a property in Suburb EE, which the husband’s mother purchased. The wife said after that auction the husband’s mother said she wanted the proceeds of sale of U Street to put towards the property she just purchased, which the wife did not agree to do. The wife said she was unaware that the payment had been made to the husband’s mother until these proceedings were on foot. She also later discovered that the husband’s father had purchased the Suburb DD property, which she expected she and the husband would purchase.
The husband said the wife’s evidence regarding his mother’s request for payment was consistent with his evidence that monies were owed to his parents and he paid her in accordance with that request.
It is the wife’s case that the sum of $1,018,670 should be notionally added back into the asset pool.
Firstly, the wife opposed the repayment on the basis that she did not concede the debt to the husband’s parents. I have made my findings in that regard.
Secondly, she said that the payment to the husband’s parents could have been delayed, or he could have paid the money owing to his parents “by instalments”. She said if the monies were borrowed from the bank, the repayment could be made over a 40 year period, so it was unnecessary that the husband had made a lump sum repayment using the U Street proceeds. I note the wife did not challenge the terms of the loan agreements, pursuant to which repayment was required in a far shorter time.
The addback was opposed by the husband. He said those proceeds were paid by the husband to his mother in partial satisfaction of the funds loaned to the parties by his parents. He said if that sum was notionally added back into the pool as an asset of the parties, the amount owing to his parents would need to be correspondingly increased by the same amount. Given my findings as to the veracity of the loans, and the funds owed, I accept that.
Accordingly, I will not notionally addback the proceeds of sale. If I did, the net pool would not alter, as the liability to the husband’s parents would have to increase by the same amount.
Findings as to the pool
Accordingly, I am satisfied that:
(a)the monies owing on the three mortgages encumbering 1 F Street totals $1,365,220;
(b)the balance owing to the husband’s parents is $2,832,846; and
(c)the proceeds of the sale of the U Street property are not to be notionally added back into the pool.
The total liabilities of the parties is $8,050,322, bringing the net tangible asset pool to $1,151,886. Including the parties’ superannuation entitlements, the pool is $1,194,407.
The pool is comprised:
ASSETS
D Street, Suburb E
$2,100,000
H Street, Suburb J, NSW
$2,200,000
1 F Street, Suburb G, NSW
$1,400,000
2 F Street, Suburb G, NSW
$3,200,000
Husband’s funds in bank accounts (FF Bank, NAB and GG Bank)
$40,380
Husband’s car
$16,000
Wife’s funds in bank accounts (NAB, Westpac, B Bank)
$70,828
Wife’s property in Country L
$150,000
Wife’s car
$15,000
Wife’s jewellery
$10,000
$9,202,208
LIABILITIES
Mortgage over D Street, Suburb E
($746,384)
Mortgage over H Street, Suburb J
($1,449,531)
Mortgages over 1 F Street, Suburb G, NSW
($1,365,220)
Mortgage over 2 F Street, Suburb G, NSW
($1,656,341)
Monies owed to the husband’s parents
($2,832,846)
($8,050,322)
TOTAL NET TANGIBLE POOL:
$1,151,886
The parties’ superannuation entitlements are:
Superannuation Fund 1 – husband
$36,721
Superannuation Fund 2 – wife
$5,800
TOTAL SUPER:
$42,521
IS IT JUST AND EQUITABLE THAT AN ORDER BE MADE?
In Stanford v Stanford (2012) 247 CLR 108 (“Stanford”), the High Court of Australia said pursuant to s 79(2) of the Family Law Act, before making any order altering the interests of the parties to a marriage in relevant property, I must be satisfied it is just and equitable for me to do so. If I am so satisfied, I am then empowered to make such order as I consider appropriate taking into account the relevant factors in ss 79(4) and 75(2) of the Family Law Act.
In these proceedings, both of the parties urged the Court that it is just and equitable that orders be made to alter their interests in their property. It is not sufficient that the parties simply agree that there should be an order made pursuant to s 79(2) of the Family Law Act. I must be satisfied myself that such orders are appropriate.
In my view, this is one of the “vast majority of cases” referred to by the plurality of the High Court in Bevan v Bevan (2013) 279 FLR 1 at [164] in which the requirements of s 79(2) of the Family Law Act are fairly readily satisfied. If I did not do so, the husband would be left with liabilities that exceeded his assets in circumstances where he contributed significant funds into the pool. It is plainly just and equitable to make an order pursuant to s 79 of the Family Law Act in these proceedings for a division of property between the parties.
ORDERS SOUGHT BY THE PARTIES
The husband proposed that the wife be entitled to a payment equal to 25% of the total tangible asset pool. He said the Suburb E property would need to be sold, and the wife would receive a modest payment from the proceeds of the sale of that property to make up her entitlement. On the tangible pool that I have determined, if the wife were to receive 25%, she would be entitled overall to assets worth approximately $298,000, including her superannuation.
The wife proposed that she retain the property at Suburb E, subject to the mortgage (equity of $1,353,616) that the husband pay her the sum of $150,000, and each party otherwise retain the assets and superannuation in their possession. Under her proposal she would retain assets totalling approximately $1,750,000. This is well in excess of the property pool I have found.
The proposal by the wife that she retain the Suburb E property was only articulated by her at the commencement of the trial. In her trial affidavit, the wife had deposed that she did not want to retain that property. The wife said from the bar table she may be able to increase the mortgage by a modest amount if she had to make a payment to the husband. However, there was no evidence advanced by the wife that she had the ability to borrow further funds against that property in order to effect any such payment.
SECTION 79(4) OF THE ACT
In determining what orders are to be made pursuant to s 79(4), I must weigh and assess the parties’ contributions “of all kinds and from all sources”; per Baker and Rowlands JJ in Aleksovski v Aleksovski (1996) FLC 92-705 at 83,437. In doing so, I must “somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship”; per Kay J at 83,443.
This is an holistic, and not a mathematical assessment; Dickons v Dickons (2012) 50 Fam LR 244 at [25].
Initial contributions
Prior to cohabitation, the husband owned the following properties:
(a)U Street, Suburb V, NSW. He said it had equity of $1,598,942, and had been purchased by him in 2011. That was sold in mid-2021 for over $2,500,000;
(b)1 F Street, Suburb G, NSW. He said it had equity of $46,547;
(c)2 F Street, Suburb G, NSW. He said it had equity of $65,000;
(d)AA Street, Suburb HH, Vic. The husband had a 40% interest in the company that purchased that property, and his portion of the equity was $921,290. That property was sold in 2016 and he received $1,120,000 being his share of the proceeds. Those monies were applied to other development projects at BB Street and CC Street;
(e)BB Street, Suburb JJ, Vic, purchased in 2014 through a company KK Pty Ltd. The husband said his portion of the equity was $710,825. He said the company sold multiple properties over a period, but he did not depose to the funds received or how they were applied; and
(f)CC Street, Suburb JJ, Vic. The husband owned 50% of that property, and his share of the equity was $164,229. That property was sold at a loss (with the husband’s share of that loss being $150,000) in 2019 when the husband and his business partner disagreed on how the project should proceed.
Accordingly, it is the husband’s evidence that his property interests at the commencement of the marriage totalled $3,506,833. He was not challenged by the wife as to his initial contributions. In addition, he said he had some cash in a bank and some superannuation. However, he did not provide any figures in that regard.
The husband said he also owed considerable sums to his parents at the commencement of the relationship – having borrowed almost $3,000,000 (plus interest) from his father by the time the parties were married. I note he had made only minimal repayments at the date of cohabitation. Accordingly, his net initial contributions were around $500,000.
The wife’s evidence is she had savings of around $40,000, a property in Country L worth $150,000 and was then provided with further cash of about $60,000 by her parents when she moved to Australia. Accordingly, her initial contributions were around $250,000.
Whilst the husband deposed that the wife had no assets other than the property in Country L she was not challenged about her initial contributions in cross examination. In those circumstances I accept her evidence.
Contributions during the marriage
The wife was X’s primary carer during the marriage. She undertook the majority of the homemaker and parent responsibilities. When she was engaged in paid employment she contributed the whole of her income for the benefit of the family.
The wife said she assisted the husband in his business. She said she undertook some of the responsibilities for cleaning some of the shop rentals. It is agreed she attended to renting out some of the rooms at the U Street property through a short term rental service, undertaking the cleaning, and attending to the bookkeeping. The wife said her income was also used to pay the mortgage and other bills on the Suburb E property.
In addition the wife said she contributed to managing 2 F Street, which provided temporary accommodation. She said her tasks included liaising with the estate agents, conducting inspections, and arranging tradespeople and cleaners. It was agreed however, that the property was formally managed via a real estate agent. The husband said the real estate agent undertook most of this work.
The wife also asserted that she made contributions to trust properties. She said she helped manage various properties owned by the Zhenya Family Trust. She said the parties moved to Melbourne in late 2019 so the husband could work on the property at R Street. She asserted she also made contributions to the construction of the business on that property; sourcing materials, finding tradespeople and engaging contractors, and indirectly by running the household and caring for X to free up the husband’s ability to work on that project. She said she also assisted in managing the trust property at N Street, which operated as temporary accommodation. The wife said she sourced a cleaner and liaised with the estate agent regarding tenants from time to time, and took some food to a tenant during lockdown on one occasion. Again, it is agreed that the property is formally managed via a real estate agent.
Whilst the husband did not concede the extent of the wife’s contributions to the management of the properties as claimed, I generally accept the wife’s evidence that from time to time she did provide some assistance in relation to the properties.
In relation to the property at 2 F Street, I accept that as it was managed by an estate agent, the work that would have been done by the wife in managing the premises would have been minimal. I accept that on occasion she liaised with the estate agents.
In relation to the wife’s asserted contributions to the trust properties, I accept that on occasion she provided assistance to the husband in managing those properties. However, those assets do not form part of the pool. Her contributions in that regard are contributions towards the husband’s business and income earning capacity.
The husband was involved in property development. He was the main income earner in the home, generating rental income from various properties. He also assisted in managing some of the Zhenya Family Trust properties. The remuneration for his work in that regard was retained by his parents as part of the monthly repayments he made for the loans advanced. I accept that the husband made some contribution towards the housework and caring for X.
Contributions post-separation
There is a dispute as to when the parties separated. The husband said the parties separated on 25 October 2020. He said he left the home at that time, but returned in November 2020, and the parties remained living separately under the one roof until June 2021. The wife asserted the parties separated on 30 June 2021. Nothing turns on the date of separation.
The wife has continued to have the primary care of X. She has also made the repayments on the Suburb E property, which she said she has had to work hard to manage.
The husband has paid for the wife’s rent and childcare costs in addition to paying child support. I understand those additional payments will cease upon the making of final property orders. He has also continued to make the mortgage repayments on the investment properties (save for the Suburb E property), and managed those properties post separation.
RELEVANT CONSIDERATIONS PURSUANT TO SECTION 75(2) OF THE ACT
The husband is 41 years old. He lives in a four-bedroom home he owns in Suburb LL. The husband has re-married, and lives with his with his wife. They are due to have a new baby later this year. The husband will then have commitments to support his new child.
The husband is a licenced tradesperson and co-director of a business. He said that company stopped operating in late 2021, shortly after the parties separated. His taxable income in the last financial year was $71,226 gross, from rental income. He said over the last four years his taxable income has been between $41,641 and $71,226. He was not challenged in relation to the evidence as to his income. He deposed that his wife’s income is a little under $5,000 per week.
The husband also undertakes work in his capacity as director of the trustee company to assist with and manage the trust properties. He is paid $5,000 a month for the work he undertakes, with that income being put towards the monies he owes his father. The wife expressed a view that this was insufficient remuneration for the work he did in that regard, but this was not explicitly put to the husband.
The wife did not pursue an argument at trial that the trust is a sham. Nor did she include evidence in her trial affidavit to that effect beyond referring to the husband having included three trust properties in a list of assets he said were his in a Financial Agreement that was drafted prior to the parties’ marriage. The husband’s explanation for this was that at the time the Financial Agreement was drafted the properties were being purchased by the husband or his nominee. When the sales subsequently settled, the husband was not the nominated purchaser. I understand there is no dispute that the entire funds for the purchases of those properties came from the husband’s parents. The wife said the existence of the family trust was kept from her, until she discovered documents referencing the trust in around 2021.
In the course of giving his evidence, the husband conceded he did have the benefit of trust monies being applied for his own advantage, or at his direction, from time to time. For instance, in May 2021, the sum of $250,000 was deposited into the mortgage account #...97 for the property at 1 F Street, being the husband’s personal asset. The mortgage was reduced to $795.99.
Initially the husband said he thought perhaps he had borrowed monies from his parents, and rather than leaving the money in a savings account, he had put monies into the mortgage to reduce the interest repayments.
The husband subsequently acknowledged those monies were transferred into the mortgage account from the T Pty Ltd account. That is, they were trust monies, but remained in his personal mortgage account until October 2021, when they were transferred back. He was unable to explain why this might have happened. There was no suggestion that he needed or sought his parents’ agreement prior to those funds being placed into that mortgage account.
The husband later said he could not remember if he had personally transferred the monies from T Pty Ltd into his personal mortgage account, or whether his parents had transferred the funds and perhaps this was a simple mistake. He emphasised the funds were then repaid to T Pty Ltd five months later, and that over the course of the NAB #...97 mortgage on 1 F Street it continued to reduce from $270,423 as at June 2019 to $223,037 at trial.
The husband also gave evidence that the wife’s company, M Pty Ltd received 10% of the net rental income for 2 F Street, Suburb G and the property at N Street in 2017/2018. They are trust properties. The husband said the wife asked him for that to occur and he agreed to it. There was no suggestion that he needed or sought his parents’ agreement in relation to that arrangement. He estimated the wife received about $30,000 through that arrangement. There was no evidence that the husband somehow had to account to his parents as a result of those monies being paid from the trust to the wife.
These pieces of evidence do suggest that at times the husband, as director of the corporate trustee of the Zhenya Family Trust, has been able to utilise funds within the trust, and direct trust income at his election. That is, in my view, a significant resource that is available to him which is not available to the wife.
The wife is 33 years old. She rents a two-bedroom apartment in Suburb MM. She has not re-partnered. The wife is engaged fulltime as a professional and earns $60,000 gross per annum. X remains in the wife’s primary care. She has an unencumbered motor vehicle. She is likely to only be able to house herself and X quite modestly.
The husband is assessed to pay $94.25 per week child support. That is a modest amount.
ASSESSMENT OF CONTRIBUTIONS AND PROSPECTIVE NEEDS
The husband’s net equity position at the commencement of the relationship was approximately $500,000. I also accept the wife’s evidence (which was not meaningfully challenged) that her initial contributions were approximately $250,000.
I accept the marriage was relatively short and the husband’s initial contributions were greater than those made by the wife.
Taking all the parties’ contributions into account, I am satisfied that over the course of the parties’ five year relationship, and in the post-separation period, the parties’ contributions to the pool that I have determined are appropriately assessed at 35% to the wife and 65% to the husband.
If trust assets were regarded as falling within the pool available to be divided, or if I had determined to deal with the loans from the husband’s parents differently, then the husband’s contributions to that larger pool would clearly be more significant.
I am also satisfied the s 75(2) factors favour the wife. The husband has re-partnered and his new wife earns a substantial income. They are to have their own baby shortly.
The wife has the primary care of the parties’ young child, although she does spend significant and substantial time with her father. The parties have a similar income. However, as outlined, I am satisfied the husband has access to financial resources well beyond those available to the wife.
In my view, I have determined that there should be a further adjustment in favour of the wife of 10% in light of these additional considerations.
Accordingly, the pool is to be divided 45% to the wife and 55% to the husband.
SUPERANNUATION
Neither party proposed a superannuation splitting order. I note the husband’s entitlements exceed those of the wife. I do not know when his superannuation entitlements accrued.
The husband proposed I should adopt a two-pool approach – and leave the superannuation out of the total pool, and each party simply retain their respective entitlements. I do not accept that is an appropriate approach in this matter.
The husband said he had some superannuation before marriage. However, he did not articulate the amount. It seems to me to be reasonable to assume that the husband’s superannuation continued to accumulate during the parties’ marriage, as did the wife’s entitlements. In the circumstances, I am satisfied that it is more appropriate to include the superannuation in a global pool of assets, and each party retain their entitlement as part of their ‘keep’.
That does modestly advantage the wife as she is effectively receiving her entitlement to the husband’s superannuation now rather than waiting some years. However, I am comfortable to deal with the matter in this way, noting that it is a very modest superannuation pool, and no one sought a splitting order.
ORDERS TO BE MADE
The wife said she wished to retain the Suburb E property. She earns $60,000 per annum. She said the repayments are currently $2,948 a month. She did not adduce any evidence that she would be able to refinance to borrow a larger amount to make a payment to the husband, although she said from the bar table that she may have the capacity to pay the husband a modest amount if she retained that property.
Given my determination as to an appropriate adjustment, if the wife retained the Suburb E property, she would need to pay the husband a little over $1,000,000. Her total mortgage would then be in in excess of $1,700,000. There was no evidence that she would be able to borrow those funds.
In the circumstances, the sale of the Suburb E property must be ordered.
I understand the husband will cease paying the wife’s rent upon the making of these orders. Accordingly, I will also make orders that the husband be responsible for making the payments for the Suburb E mortgage and any outgoings in relation to that property pending the sale. The wife does not have the income to manage her own rental payments (of about $2,564 per month) as well as making the mortgage repayments.
According to the pool as I have found it, and leaving aside the Suburb E property:
(a)the wife has assets totalling $245,828 plus her superannuation of $5,800 making her ‘keep’ a total of $251,628;
(b)the husband has assets totalling -$447,558. Including his superannuation, his net position is -$410,837; and
(c)the net value of the parties’ respective keeps is therefore negative ($159,209).
To ensure a division of the pool inclusive of superannuation as I have determined, the wife will receive an amount ($X) calculated as follows:
$X = [(A – $159,209) x 45%] – $251,628
·A is the net proceeds of sale of the Suburb E property after paying the costs of the sale and the mortgage;
·The negative sum of ($159,209) is the net value of the parties’ respective ‘keeps’; and
·The sum of $251,628 is the wife’s keep.
I will make the sought orders by the husband requiring the wife return to him his desktop PC and his mobile phone – if that can be located. He said his PC in particular contains many documents and photographs personal to him from over the last 20 years.
The wife objected to the return of the husband’s computer to him on the basis that she was using the computer herself for work, and also that there were private photographs of her on that computer. She said she has not seen the mobile phone.
The husband offered to purchase a brand new computer for the wife, and to be restrained from disseminating or publishing compromising photographs of the wife. Orders to that effect in my view overcome the wife’s objections to returning the husband’s computer to him.
The wife will need to remove the caveat lodged over the property at 2 F Street, at her expense. These is no basis for that caveat to be maintained.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding one hundred and fifty (150) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 29 August 2023
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