Carruthers v Carruthers

Carruthers v Carruthers | Case summary | Zoe

[69]

The manner of the wife's presentation and engagement with the proceedings raised some questions about her capacity to conduct the proceedings. Although at one stage a possible application for the appointment of a litigation guardian was flagged by the husband, none was ultimately pursued and at no time did the wife countenance the possibility that the responsibility for the conduct of her proceedings should pass to a litigation guardian. It was never clear that the wife was incapable of adequately conducting her proceedings or giving instructions to do so.
Despite her engagement with these various lawyers, on the third occasion that the matter was listed for trial the wife appeared unrepresented. The last set of lawyers withdrew on the first day of the trial on the basis that the wife had withdrawn her instructions from them. The wife subsequently complained that her lawyers had not sufficiently prepared the matter for trial. The wife contended that no unfavourable view should be taken of her in the context that she had lost her representation. The husband sought no adverse inference to be drawn against the wife by virtue of these circumstances and none is drawn.
Despite the loss of her legal representation, the wife pressed that the trial proceed, but sought the discharge of a s 102NA of the Family Law Act 1975 (Cth) order that prevented personal cross-examination. Although the order had been made at her request, the wife sought its discharge in order to permit her, in the absence of representation, to personally cross-examine the husband. The s 102NA order was discharged on the basis that, although the order was made as protective of the interests of justice by not exposing a person who had made a family violence allegation to the prospect of either being subject to or performing direct cross-examination of an alleged perpetrator, in this case, the interests of justice pointed to the wife being at liberty to cross-examine the husband.
At trial the wife presented in a disorganised and chaotic manner. A large part of the first two days of trial was spent identifying and ruling upon documents the wife sought to tender, the bulk being from the annexures to the wife's affidavit.
The trial of the matter then proceeded in an unorthodox manner.
Prior to the completion of her cross-examination, on the fifth day of the trial, the wife refused to re-enter the witness box. It was difficult to identify why the wife refused, although she asserted a need to read various affidavits before being required to complete her cross-examination. She sought that she be provided with further copies of affidavits prior to re-entering the witness box, but was advised that if it was necessary for her to see an affidavit in the context of the question that she was asked, she would be provided with the opportunity to see the relevant part of the affidavit. When the wife persisted in her refusal, the potential consequences of such were explained to her. These included that the husband would be relieved of the obligation to identify and put to her areas of her evidence that he challenged, that the affidavits relied upon by the wife would no longer form a part of the evidence, and that the wife would no longer be entitled to cross-examine the husband.
Although there was prevarication on the part of the wife as to whether she would continue to be cross-examined, or the terms on which she would agree to such, the wife did not submit to further cross-examination.
However, the husband declined to pursue the bulk of the consequences identified above. Rather, the husband sought that the wife still be permitted to rely upon her material, and that she still be permitted to cross-examine him. Through his counsel he explained that he wanted to afford her the best opportunity to be heard. He did however seek, reasonably, to be released from the obligation to put challenges to the wife by means of cross-examination.
The wife then declined to cross-examine the husband. The wife sought that the proceedings be finished that day, but also asserted that she was unable, due in part to a lack of representation and accordingly inadequate preparation on her part, to bring appropriate documents and submissions to bear. The wife made numerous assertions of procedural unfairness, particularly given her lack of legal representation. She however also pressed that the trial continue and be finalised. The wife asserted that she should be able to file an affidavit about her legal representation so that no adverse view be taken of the reasons why she did not have it for the trial. However, in the absence of criticism of the wife for her loss of representation, there was no cause for the proceedings to be delayed (against her wishes) to allow for such filing to take place.
The husband proposed that the proceedings be finalised by means of written submissions in order to relieve the wife of the need to return to Court, the wife having expressed a desire to end the proceedings and not return.
In the face of some uncertainty as to whether the wife would withdraw her application, or avail herself of the opportunity to provide further material to the court and make submissions to the court, a suite of procedural orders were made to provide for the tender of further material, objections to be dealt with in writing, and for written final submissions.
The wife was ordered to file and serve any further documentary evidence she sought to tender in the proceedings by 6 September 2024. She did not comply.
On 13 September 2024 the husband complied with directions and filed further documents he sought to tender in the proceedings.
On 20 September 2024 the husband filed written submissions.
The wife was ordered to file written submissions by 4 October 2024. She did not comply.
The husband was ordered to file submissions in reply by 11 November 2024.
On 9 December 2024 the wife filed an Application in a Proceeding seeking an extension of time to submit material, to file an updated Financial Statement and cost notice on 16 December 2024.
The husband filed a Response to an Application in a Proceeding on 13 December 2024 seeking that the wife's application be dismissed, and a costs order. On 15 December 2024 the wife filed a minute of orders sought. The wife was permitted to rely upon her written submissions that were filed 17 December 2024. The time for the husband to file a reply was likewise extended. The wife was not permitted to rely upon further material.

[87]

A justification for a notional adding back does not arise merely because a party has disposed of matrimonial assets. As observed by Murphy J, parties do not enter a state of "suspended economic animation" on the ending of their relationship.[10] Adding back, as a discretionary exercise, is exceptional and occurs where justice and equity require such a reckoning. Alternatively, rather than adding back, justice and equity may be met by taking into account, pursuant to s 75(2)(o), the disposal as a fact or circumstance that the justice of the case renders necessary to take into account.
In this the wife sought that amounts be added back into the pool of property.
The property to be identified and considered extends to superannuation interests of the parties.
In Welch & Abney [2016] FamCAFC 271; (2016) FLC 93-756, the Full Court emphasised the need to give consideration to the "nature, form and characteristics of the property and superannuation interests."[11] To consider whether an adjustment is just and equitable it is necessary to identify the practical effect of the distribution. An example of where such is necessary is in the recognition of the practical difference between the receipt of a superannuation interest that may not be accessible for many years, in contrast to an asset that may be realised immediately.
Section 79 requires the consideration of the various contributions made by the parties during the relationship. Section 79 provides for a wide range of contributions to be taken into account, incorporating financial and non-financial contributions, made directly or indirectly, by or on behalf of a party to the acquisition, conservation or improvement of property, even where such no longer forms a part of the property of the parties. Further, contributions that are not made to the property, but to the welfare of the family are also to be taken into account. As the Full Court identified in Dickons & Dickons (2012) 50 Fam LR 244 this requires a holistic assessment of the nature, form and extent of contributions, and that there is no requirement for a causal link between the contribution and the property. Contributions are not weighed merely on their financial consequences. [12]
An aspect of the weighing of the contributions is of the circumstances in which they were made. For example, the Full Court in Benson & Drury [2020] FamCAFC 303; (2020) FLC 93-998 identified that the holistic examination of contributions that is required can take account of the contributions being rendered significantly more arduous by the conduct of another party in subjecting the party to family violence in determining the weight to be given to the contributions as a whole.[13] In this case the wife contended that such a consideration is applicable, as she contended that she was subjected to family violence.
Typically, the weighing of contributions will be expressed relatively between the parties as percentages.
It then remains necessary to consider the other matters, insofar as they are relevant to the case, as described at s 79(4)(d) to (g) including those contained in s 75(2). A significant aspect of these considerations is directed to assessment of the future prospects of the parties and are not restricted to the consideration of financial matters. Where such considerations arise in a case, typically, once weighed, they will also sound in the expression of a percentage.
Following the consideration of these matters, further consideration must be given to whether the result is just and equitable.

[89]

A fundamental requirement placed upon parties in property proceedings is that they each disclose their financial circumstances and documentation. This is an obligation reflected in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth),[14] and is a substantive obligation cast upon the parties. It is an obligation of importance because the failure of a party to make disclosure can result in injustice to the other party. As a result, where a party is found to have failed, in a significant manner in relation to that obligation, the Court may take such a failure into account in drawing conclusions as to the real state of the property, or may take it into account in determining the adjustment in favour of the non-defaulting party in the face of uncertainty as to the scope of the parties' property.
In this case the wife contended that the husband's non-compliance with his financial disclosure obligations had been an ongoing problem since the parties separated. The evidence did not bear this allegation out. While some disclosure was still taking place proximate to the trial, the overwhelming bulk of the disclosure by the husband took place well in advance of the trial.
There were a number of features of the husband's conduct that sat uncomfortably with the wife's attempt to characterise him as engaging in serious non-disclosure. For example, the wife accepted that, at about the time of separation the husband paid to her the sum of $10,000 for her to engage an accountant to conduct a forensic examination of the parties' finances.
The wife, in fact, accepted that the husband had always been supportive of her undertaking a forensic process. However, although she received the money to do this, she said that she obtained no such forensic report. She said that she had approached forensic accountants but that $10,000 would not be sufficient. She further described that she had engaged three sets of accountants without the production of a forensic report. Somewhat inconsistently she described that she had obtained some form of report but had never provided it to the husband's solicitors.
A further example of the husband taking steps to ensure that the wife received proper disclosure was in him causing the digitising of the family's accounts from 2013 to 2020, using the services of a bookkeeper. Those digital records were then provided to the wife.
The wife however, throughout the proceedings, was highly suspicious of the husband. The wife's suspicions arose toward the end of the relationship. This was seen in the wife's insistence that the husband surrender his phone to her for examination, and her insistence that the husband activate location services. The husband did both these things. His preparedness to provide the wife with full access to this phone went above and beyond the requirements for disclosure.
The wife accepted that she had caused approximately 38 subpoenas to issue in relation to the property dispute. She did so to seek to discover other property owned by the husband, and bank accounts that were not disclosed. I was unable to identify an instance of non-disclosure being demonstrated by any of these subpoenas.
The wife supported her claim as to non-disclosure with letters from various solicitors acting for her seeking particular disclosure from the husband in March and August 2023.
In answer to the claims of non-disclosure, the husband tendered at Exhibit H1 a schedule of disclosure that he asserted had been made to the wife.
The schedule identified in excess of 1,000 items disclosed to the wife. Almost all of the disclosure listed took place prior to 2024. A small number of items were disclosed in August 2024.
The schedule was provided to the wife in advance of the trial following earlier orders made that the parties each provide a schedule of disclosure.
The wife contested that she had received a number of the documents contained in that schedule. Her evidence appeared to vary between not having received any of the documents, to not having received some of them.
The wife was asked to examine the schedule overnight to identify the documents that she contends that she did not receive (Transcript 21 August 2024, pages 76-78). The following day the wife claimed she did not remember receiving the entirety of the documents on page one of the schedule, aside from item 16 which may have been provided to her former lawyers. She then went on to clarify that did not remember seeing items one, two and 16, and definitely had not seen the balance of the items on page one (Transcript 22 August 2024, pages 131 - 137).
I had little confidence in the wife's assertions as to what she had or had not seen, or had or had not been provided with, particularly given further concessions made by her.
The husband's representation offered to file an affidavit wherein they provided evidence that they had provided the disclosure in the schedule to the wife or her representatives, however this did not occur.
The wife's contentions as to the husband's lack of disclosure, or concealing of finances, were difficult to follow. They appeared in large part based on suspicion. For example, the wife contended that the bank statements tendered by her from the Commonwealth Bank of Australia contained transactions that she considered to be unusual.
One specific example is her reliance upon Exhibit W55; T Limited statement (acc ...77) covering July 2019. On that day there appeared a number of transactions consistent with her claim that the parties were then in Country U. Amongst transactions that appeared to relate to Country U was a transaction for Euro 438.80 titled "[...] Tickets V City."
The wife contended that this was a suspicious transaction, and in particular that it indicated that the card was used in V City. Whilst it may be evidence that the card was used for a transaction in V City, it does not evidence that the card was used in V City, which appeared to be the contention.
Whatever the case, it is not clear what relevant suspicion is raised. To the extent that it was raised to demonstrate some form of wastage during the relationship on the part of the husband, it did not do so. To the extent that it was raised to suggest that the husband was engaged in some form of secretive transaction, it was not, without more, capable of doing so. Whilst it may have attracted the wife's suspicion, it did not found the basis for any adverse conclusion to be drawn in respect of the husband.
Similarly, Exhibit W3 appeared directed to suspicious transactions during the relationship. The document, which was an extract from the bank statements for account ...34 was annotated, presumably by the wife, identifying suspicious transactions from 2016. For example, hand annotations were made in relation to vending machine transactions, "W Company Sydney", asserting the parties were then in Canberra. No fact was demonstrated to indicate conduct on the part of the husband to be taken into account in determining property adjustment. To the extent that further annotations were made to other transactions, such as a hotel booking, or hire car tolls, or a visit to a pharmacy on a Sunday, equating to the wife asserting that such were suspicious, again no proof was offered as to a fact to be taken into account in respect of the property adjustment discretion. No inference was made available by the proof of underlying facts of any nefarious dealing by the husband.
Exhibit W4 was a document prepared by the wife setting out a number of contentions as to transactions made by the husband, including that utilities had been paid too many times, or that too many utility bills had been paid, or that various home maintenance companies had been paid. To the extent that this was put forward to demonstrate hidden properties, or waste, it failed to do so, particularly in the absence of any examination of the husband.
In particular, from Exhibit W4 and Exhibit W57, the wife pointed to screen shots taken from the husband's phone of PayIDs. The wife accepted that the husband had given her access to his phone and that she was able to examine it for any purpose that she wanted. This was as a result of demands made by the wife that the husband surrender his telephone to her, with which he complied.
The wife contended that the presence of multiple PayIDs, for example for OO Company, was unusual. The wife failed to establish that such was either unusual, or if unusual, supportive of a fact to be taken into account in the property adjustment discretion. To the extent that the wife contended that this evidenced a disposal of monies by the husband, it did not do so in a manner relevant to the adjustment of the parties' property.
Similarly at Exhibit W59 the wife pointed to VoIP to VoIP calls, of short duration, for which there was no charge. The meaning or significance of such, or the husband's responsibility for such was not established. Rather than establishing some conduct of significance on the part of the husband, it was indicative of an unreasonable suspiciousness on the part of the wife.
Although the wife had initially contended that very little had been disclosed to her in relation to the Stennard Family Trust, the wife accepted under cross-examination that she received every financial statement for the Stennard Family Trust from 2013 through 2024. The wife said that she did not know if she had received the trust deed, or the minutes of directors' meetings for the corporate trustee.
It should be acknowledged that the husband was under no obligation to undertake a minute accounting for the use of the accounts during the relationship.
In any event, the wife chose not to question the husband about any of these transactions.
The wife was specifically directed that, if she contended that there was something about a transaction that the Court should find something "wrong" with, that she was required to identify both the transaction and the reason why a conclusion should be reached that there was something 'wrong" about that transaction. The wife was unable to do this. At no stage was the wife able to advance her contentions flowing from the various documents that she presented beyond the mere raising of suspicion in her mind.
Later, at trial, the wife clarified that while she alleged that the husband had historically failed in his obligations to disclose, that was not the case by the time of the trial. She also, ultimately, appeared to reject the contention that the husband had failed in his obligations to disclose in a manner that impacted on the wife's capacity to run her case.[15]
It was unclear, then, what the point of the wife's pursuit of these issues was.
It should not be concluded that the husband has failed, to any significant degree, to meet his duty of disclosure. Rather, it may be concluded that the wife's criticisms of him were highly speculative, founded in suspicion that was not adequately supported by the examples that the wife chose to illustrate her concerns and not relevant to the proceedings.
Similarly, the wife has criticised the husband in respect of a variety of financial matters, ranging through payments made to lawyers in regards to a workplace dispute, arrangements for the maintenance of the pool at the family home, and his preparation of the wife's tax returns. While a number of the wife's claims are dealt with specifically in this judgment, not all of them are. However, it may be taken that even where a claim is not dealt with specifically that the wife has failed to establish the financial criticisms that she makes against the husband.

[90]

The wife alleges financial, verbal and emotional abuse experienced during and after the relationship with the husband. This matter appears to be advanced by the wife as a part of a contention that her contributions were rendered significantly more onerous or arduous by family violence perpetrated by the husband. As set out below, the wife has failed to establish such a claim. Rather, there is good reason to consider that the wife acted in an abusive and domineering fashion toward the husband. The husband recites numerous aspects of controlling behaviour engaged in by the wife, including by implicit threats of self-harm and emotional dysregulation. It is not necessary to make specific findings as to such as the husband does not seek to establish that being subjected to such rendered his contributions significantly more arduous. It may be observed that the husband displayed high levels of personal and practical support for the wife in the face of such conduct.
It is however necessary to deal with the wife's claims as to the husband's conduct as she asserts they are to be taken into account in determining her contributions.
The husband denies that he engaged in coercive or controlling behaviour. Rather, he describes significant efforts to support the wife, and to enable her to have interests and engagements outside the home.
The husband alleges that the wife behaved in a manipulative and controlling manner toward him, shown in particular in the wife becoming emotionally dysregulated when "things did not go as she wished." He describes that on occasion the wife became physically aggressive. He described an incident where the wife punched him in December 2019. He described this occurred when he yelled at the wife to stop when she was reaching toward one of their children and was about to hit him.
The husband describes that in December 2019 the wife demanded that he surrender to her his phone and smartwatch so that she could check his emails and messages. He describes the wife going through his phone, and calling numbers from his phone that she did not recognise. He said that she accused him of having affairs (which he denied).
At about the same time the wife asked the husband to give her access to his Medicare records. He did so. She examined them and when she found an entry as to the husband being tested for an infection, alleged that this was for a sexually transmitted disease. It was not.
The husband further described that in the leadup to the parties' physical separation in January 2020 the wife insisted that he turn on location services on his phone so that she would have proof as to his location. When the husband was travelling by train and bus from Sydney to work in Canberra the wife demanded that he video himself to demonstrate that he was alone and not being driven in a car by another woman.
At paragraph 125 of her affidavit of 14 September 2023, the wife details the abuse that she alleges was committed by the husband during the marriage. The husband provides a detailed response at paragraph 73 of his affidavit of 20 October 2023. The husband's account was cogent, believable, and in a context where the wife neither challenged his evidence by cross-examination, nor submitted herself full to the cross-examination process, I generally prefer the evidence of the husband.

[95]

Throughout the relationship, the wife claims she was the primary carer of Y and X.[17] She claims that the husband did not fully accept Y's diagnoses of attention deficit hyperactivity disorder (ADHD) and autism spectrum disorder (ASD) and requested a second opinion. It is alleged that the husband did not allow the wife to tell her family and friends about Y's diagnoses. The husband states that after Y received the ASD diagnosis, he contacted Dr S, Y's current treating practitioner, who agreed that he had ADHD but was uncertain regarding the ASD diagnosis. Dr S gave several further recommendations for Y's care including psychological counselling, occupational therapy and speech pathology, which the parties followed.[18] The husband also explained that he was concerned that other parents would not encourage friendship between their children and Y if they were aware of his diagnosis.[19]
At paragraph 82 in her 14 September 2023 affidavit the wife asserts that the delayed diagnosis and not informing Y's school has resulted in him not receiving the support he needs which has contributed to Y having learning difficulties and low self-esteem. The husband accepts that Y's autism diagnosis was not disclosed to the school until 2021, stating he was concerned about the stigma surrounding the diagnosis.[20] He says that Y was able to receive an individualised learning plan in 2022 and is now settled at his new school.[21]
The wife alleges that the children have made a number of statements which have led her to believe that the husband is discussing the family law proceedings with them. These discussions distress the children but also portray the wife in a negative light. At paragraph 88 of the husband's affidavit filed 26 July 2024, he claims he has not exposed the children to the proceedings. He described an event where Y photographed the word 'Comcourts' on the husband's computer before he could log out, and the husband sought to convince Y that it related to a previous court proceeding from some years prior.
The wife alleged that the husband, on many occasions, became angry with and said condescending and hurtful things to the children, saying that one of the children lies, or was manipulative, or has a brain problem. The husband denied the allegation that he did so on many occasions, but accepted that on one occasion he had said that a child had a brain problem. The context was to explain to the other child that the child had a brain problem that made him very sensitive to noise.
The wife's description as to the husband's interaction with the children, even if accepted in full, does not establish that the husband was engaging in family violence, as opposed to engagements within the ordinary boundaries of difficult family interactions. In any event, I accept the husband's description.

[100]

The wife contends that her substantial earnings as an allied health professional, for example in 2008 -2009, dissipated without her knowledge. It was unclear that this assertion meant anything more than the wife's view that, given the incomes earned by the parties, there should have been more substantial savings.
Coupled with this, the wife accepted that during the relationship she trusted the husband with the finances. Although she characterises this as financial control, it does not appear to be so. Rather it appears that the parties, in dividing their responsibilities and roles during the relationship, left the management of the finances to the husband, who was trusted with that role. The wife described that "during the marriage I did not check my bank accounts as I had 100% trust" in the husband's handling of the finances. Despite the many issues raised by the wife, no substantial reason nor example has been identified to indicate (as the wife now contends) that this trust was misplaced.
When cross-examined, the wife accepted that a reason that she trusted the husband was that whenever money was to be spent, whether on groceries or other, that the finances were available to do so. She gave no account of the use of finances to exercise control over her.
One particular aspect of this complaint is that when the husband prepared her tax returns, in particular for the 2008/2009 financial year, he caused his telephone number to be provided to be contacted for the return, rather than both his and the wife's numbers.
The wife however conceded that she left the financial matters to him, and accepted his offer to prepare her tax returns. She described that she regarded him as trustworthy in his management of their finances. The recording of his telephone number on the return that the wife had agreed he should prepare for her is not suggestive of financial control.
Despite the wife's attempts to discredit him in his role as the financial manager for the family, there is no adequate reason to consider that he did not discharge those responsibilities carefully, diligently and responsibly. It should not be concluded that his management of the finances was an act of control. Rather, the wife's assertion bears the hallmarks of a recasting of the history of the relationship to reflect her late developing, but unsubstantiated, suspicions of the husband.
She appears to have commenced examining the finances in 2019 when she suspected that the husband was engaged in another relationship (it may be noted that the allegation of another relationship was never made good). The wife complained that she did not understand who various payments were directed to, or why lines of credit were increased, or why the husband had applied for loans at various points in the relationship.
The wife then recites a number of matters that have caused her suspicion. They fall far short of demonstrating some sort of misuse of marital resources, or abuse of the trust that was reposed in the husband to manage the finances, or examples of financial control. The wife's suspicions are without adequate foundation.
It should not be accepted that the husband either engaged in financial control, or that he engaged in misuse of the resources of the parties while entrusted with the management of those financial resources.
The wife also appeared to suggest financial misbehaviour by the husband when he attended an allied health fellowship in Country DD. The wife described that her income was used to support her, Y and the husband in this period, a contention he accepted, given his low income while on the fellowship. The husband, wife and Y resided in Country DD for a period for the completion of the fellowship. The wife appeared to suggest that the level of dissipation of funds during this time was unreasonable. In support of this she tendered bank records from the time at Exhibit W11, which showed a number of withdrawals, and contrasting with less withdrawals in another statement for late 2008. To the extent that the allegation was the withdrawal and dissipation of excess funds, the statements did not demonstrate such.
No adequate basis was established that the husband had somehow misused the wife's income. She conceded that they both travelled internationally during the Country DD fellowship, and that they had hired a car for seven months, in addition to ordinary living expenses. If the claim was as to wanton dissipation of the parties' resources, it was supported by no more than speculation.
The wife described that after Y was born she interviewed for a position in Suburb PP. She described in general terms that the husband said that if she did not come to Country DD with Y he would end his fellowship and return to Australia. Absent any further description this is insufficiently described to suggest that such was controlling conduct on the part of the husband, as opposed to his willingness to abandon the fellowship to be with his family if the wife took the position in Suburb PP.
The wife asserts that she has lost career opportunities due to being the primary carer and homemaker. This included electing not to complete a fellowship (which would have made her more employable and increased her potential income), as it was decided that the wife doing a fellowship was not conducive to the parties conceiving a child. The wife also alleges that the husband chose to apply for employment positions the wife was interested in. None of these assertions established the exercise of control over the wife by the husband.
In her affidavit of 12 July 2024 the wife asserted that the husband refused to permit the sale of the Suburb P property. She described that she has to pay large utility bills and take care of belongings in the house, such that the house triggers traumatic memories.
The wife says that she has consistently wanted to sell the Suburb P property since 2020, and that the husband was aware of her position.[25] The husband disputes this, highlighting statements made by the wife contrary to this position in her 14 September 2023 affidavit, where the wife asserted that she wished to continue to live in the Suburb P property, as well as a lack of orders sought by the wife as to the sale of the property.[26] In that affidavit the wife said that she wished to remain in the home, it being important to maintain stability for Y.
The husband accepts that at one point in late 2020, when the wife was arranging to relocate to Sydney, he opposed the sale of the Suburb P property. However, the husband stated in his trial affidavit that he is no longer opposed to the sale of the Suburb P property, but he has told the wife that he does not have time to organise the sale due to his need to work, care for the children, and prepare for these proceedings. He stated that he has told the wife that he will assist in the sale of the Suburb P property after the proceedings have finished. The orders sought by the husband seek that he be given the responsibility to affect the sale of the Suburb P property.
The issue raised by the wife of the husband forcing her to remain in the Suburb P property home is not made out.

[102]

The wife asserted that the parties started to live together in early 2002, the wife moving into an apartment that the husband already rented. The husband says that they did not move in together until 2004. Whilst, given the duration of and general circumstances of the relationship nothing of significance turns on this dispute, the husband's account should be preferred as more accurate.
While the wife asserted that they moved in together in 2002, she appeared to also accept that she initially retained her own home but spent significant time at the husband's home.
In support of the 2004 date, the husband produced the rental bond receipt from April 2004 evidencing the two-bedroom home that the parties moved into when they commenced their cohabitation.
As to the reliability of the wife's recollection of the relationship at that time, under cross-examination the wife accepted that they did not become engaged until the husband's grandmother passed away. She passed away in 2004. The wife however then continued to insist that they parties became engaged in 2003. Whilst it may be accepted that the parties were in a relationship in 2002, they did not cohabitate until 2004. It was uncontroversial that the parties married in 2004.
Nothing turns on this difference. The parties had no significant assets or liabilities at the start of their relationship. When the parties commenced cohabitation they had minimal assets. The wife had a HECS debt, a car and a car loan[27] and the husband had a car and some credit card debt.
Each was employed, the wife as a health professional at AA Hospital, the husband at BB Hospital in his first year of training. The wife describes that she was the one who was primarily responsible for cooking, cleaning and grocery shopping.
In 2004 the husband's grandmother died. Following this, in 2005, an arrangement was made between the husband and his father regarding two items of real property that formed part of the estate of his grandmother, being J Street Suburb K and L Street Suburb M. The parties borrowed $1.1 million. After much prevaricating the wife accepted that the Suburb K property was worth, at the time the husband received it, about $900,000, and the Suburb M property about $1,150,000.[28] The Suburb K property was unencumbered, while a loan of $1.1 million was obtained for the Suburb M property. The wife ultimately agreed that the inheritance to the husband was worth about $900,000.[29] The husband contended that in addition to this amount he received further to the value of $90,000 from his father, enabling him to purchase the Suburb M property without having to come up with a full value of $1,150,000.
The parties then lived in the Suburb K house until 2013.
Exhibit W1 comprises transmission documents showing the transfer of title of Torrens Title [...] (the Suburb M property) in 2005 from the husband's deceased grandmother to the husband and his father in 3/8 and 5/8 shares respectively, and then to the husband's father by the husband pursuant to a deed of Partition and Family Arrangement of 2005. The discharge of a mortgage to CC Pty Ltd was registered in 2005, and on the same date the husband's father transferred the property into the names of the husband and the wife as joint tenants, for the consideration of $1,150,000.
Similarly, Exhibit W1 shows the transfer of title of Torrens Title [...] (the Suburb K property) in 2005 from the husband's deceased grandmother to the husband and his father in 3/8 and 5/8 shares respectively, and then to the husband by the husband's father pursuant to a deed of Partition and Family Arrangement of 2005.
Accordingly, the husband held with the wife the Torrens title [...], and alone the title of [...], the properties previously held by his grandmother following the payment of $1,150,000 to his father (part funded by a loan, part funded by a gift from the father), with both properties then being subject to a mortgage.
The husband's contentions as to the manner and cost of the properties should be accepted. The effective bequest of the Suburb K property was a significant early contribution to the property pool, which in turn assisted the parties in their acquisition of the Suburb M property.
In 2009 the husband spent a year in Country DD to complete a fellowship. During that time the husband's income was reduced, while the wife worked during her pregnancy to support the family. As identified previously, the wife now contends some form of financial impropriety by the husband, in the form of excessive spending during this time. More than anything else this appears to be the product of unwarranted suspicion of the husband, and poor recollection by the wife. Y was born in 2009. The wife took maternity leave for twelve months prior to returning to work part time. After giving birth to Y, the wife and Y travelled to Country DD in 2009 to join the husband.
Whilst unable to remember "extensive" travel, the wife accepted that during the time in Country DD there had been three trips to the USA. She disagreed that the family spent "quite a bit of money," although she accepted various items of expenditure such as the extended hire of a car, and the flying of an aunt from the USA to Country DD. The expenditure is of no real importance, save that any contention of wasteful dissipation by the husband has not been established by the wife for this period.
Following the husband's return from Country DD he took a position at H Pty Ltd. In 2012 he was invited to purchase 187 units of the H Pty Ltd unit trust, which he purchased for about $140,000. The interest was purchased through the D Family Trust. The husband contends that the funds were sourced from the MISA account, into which excess funds and savings of the parties were placed, while the wife asserted that she was unaware of where the funds came from. The wife appeared to accept that the funds may well have come from this account.
It does not matter where, precisely, the funds came from for the purchase of the H Pty Ltd shares. The purchase utilised the resources of the parties.
X was born 2012 and again the wife took twelve months maternity leave. She then returned to work part time.
In 2013 the parties moved to Canberra. They purchased their property in Suburb P in late 2014.
In May 2015 the parties sold the Suburb K property, the proceeds of sale were paid towards the Suburb P mortgage and to repay a loan.
Of particular contention for the wife was what occurred regarding the line of credit used by the parties to finance the purchase of the Suburb P property. The line of credit is allegedly held in the wife's sole name.
The wife alleged that the line of credit increased at the time of the purchase by $300,000 to $400,000 without her knowledge. She had expected that herself and the husband would have had enough funds to put down the deposit due to their high annual earnings. The wife asserted in cross-examination that the deposit for the Suburb P property was not $400,000, but rather $233,000 which was 10 per cent of the purchase price.
It was put to the wife in cross-examination that alongside the $233,000 deposit, another $133,000 would be needed for stamp duty. Counsel for the husband suggested to the wife that when the parties went to auction, they did not have savings from which they could have paid the deposit and the stamp duty. The wife's response was that there should have been, however when pressed as to whether she was merely saying there 'ought' to have been, she conceded that she did not know whether they had savings as she was not managing the parties' finances.
The wife also made it clear that for the majority of the parties' relationship she had trust in the husband to manage their finances, until just prior to separation.
Despite the wife's suspicion, there is nothing about an increase in indebtedness via this line of credit at the time of the purchase of the family home that appears untoward, or of significance in the current adjustive process.
The wife describes breast feeding Y until he was 18 months old and X until 21 months. The husband was heavily involved in Y's care, for example, frequently attended to feeding Y with expressed breast milk overnight. She described having the primary responsibility for the care of the children, in the context of Y having special needs, including anxiety, difficulty with the regulation of emotions, ASD and ADHD.
The husband on the other hand, asserts at paragraph 73 of his 12 May 2023 affidavit that he was involved in Y's care since birth. He asserts that with some home-making activities he assisted or alternated with the wife, and in others, such as clothing, bathing, feeding and playing with him, he was primarily responsible. He also contended that he was in attendance for all paediatric appointments for both children, and was involved in or responsible for treatment both at home and external. At paragraph 141 of his 26 July 2024 affidavit he denied the wife's claim that she organised all appointments. He also asserted at various times that he was involved in the children's schooling, such as at paragraphs 131 and 133 of the 26 July 2024 affidavit.
The wife asserts that she was responsible for the educational and medical arrangements for the children, contending that the husband's resistance to Y's diagnosis with ASD was detrimental to Y. It should be recognised that detriment has not been demonstrated. Further, even if it had been shown that such a choice was ultimately detrimental, this does not, without more, sound in a poorer assessment of contributions by the husband comparative to the wife.
In any event, the husband was heavily involved in both the medical and educational care of the children. The husband describes in close detail in his affidavit material the nature of his involvement, which was comprehensive. Accepting that the wife worked on a part-time basis to allow for the care of the children, it should not be thought that the husband's role was token. Rather, it was a fulsome participation in the care of the children as a matter that he regarded as the joint responsibility of the parents.
In 2017 H Pty Ltd was restructured and issued shares. The husband describes at that time agreeing with the wife to purchase further shares, which constituted 200 shares for about $28,000. Minor discrepancies between accounts given by the husband about this process are not significant.

[103]

The parties separated on 6 January 2020. The wife and children initially stayed in Sydney, but have since remained in the family home in Suburb P.
Shortly after separation the parties cared for the children in a shared care arrangement, until about June 2020. However, Y's time with the husband reduced at about this time to about 1-2 nights per week. The time with Y changed to about three nights per fortnight from about December 2020, although school holidays were shared on an alternate week basis. X's care remained shared.
The husband describes that the wife has not paid the mortgage costs of the Suburb P property despite occupying the property, resulting in the accumulation of further interest of about $120,000. This was in a context where the wife agreed to meeting those costs, in the context of a broader agreement that the parties would share the family expenses proportionally in accordance with their income. The wife has worked on a part-time basis, the husband on a full-time basis. This does not appear to have happened, with significant expenses being met out of their capital resources.
Final consent orders were made on 10 May 2023 in relation to the children. The orders are that the parties have equal shared parental responsibility for the children. During school terms X is to spend week about time with each parent, and Y is to live with the mother and spend time with the father three nights a fortnight (with additional time in accordance with Y's wishes). During school holidays the children are to spend week about time with each parent.
The husband describes, and I accept, that he is heavily involved in the care of the children, including dealing with complex health needs. Further, despite the many complaints made by the wife against him, he remains highly cooperative in relation to the children, and they each remain in close contact with the other.
The parties did not enter into a Child Support agreement, however it was agreed that the husband was to pay the whole of the children's private school fees. Save for one year the husband paid these fees from the joint funds of the parties.[30] The husband identifies that he has expended about $500,000 post separation from his income to meet his rental expenses, (given that he vacated the home) and to meet various expenses, predominantly in relation to the children.

[108]

The wife suggests the current issue with her employer will likely impact on her future employment opportunities, and she holds concerns about her future working at EE Hospital, and by extension her ability to work as an allied health professional in Canberra.[39] However, the wife has described no ongoing implications of the making of these complaints. No action in regard to the complaints raised against her appears to have either been taken or is proposed to be taken.
The wife was previously employed as a locum on contract by FF Pty Ltd since late 2018. Since late 2023 her work shifts have dropped gradually and she is no longer obtaining shifts. She has attempted unsuccessfully to secure a further contract.
In any event, the wife has proposed to the husband that they all separately move to Sydney as Y is very unhappy in Canberra as he has experienced bullying at two Canberra schools.
The wife suggests that the husband has 'refused to commit to a move' to Sydney.[40] She asserts that she has had multiple conversations with the husband about his willingness to move to Sydney and, while he has expressed an openness to the move, he has only done so in vague terms with no commitment as to when the move would occur.
The husband has outlined several concerns about his employment if he were to relocate to Sydney, including a large decrease in his salary, leave entitlements, and work hour flexibility, a lack of a support network in Sydney, and increased children costs in Sydney.[41] A move to Sydney appears likely to impact adversely on the husband's earnings and conditions. However, he appears likely to remain strongly remunerated for his work.
However, he has agreed to relocate to Sydney with X when X feels more comfortable about the move, likely at the end of the 2024 school year.[42] He describes that he feels this move is necessary to maintain both his own, and X's, relationship with Y.[43]
The husband has described that he anticipates meeting a number of significant expenses for the children in relation to their schooling and medical expenses.
It may be anticipated that the wife will be in a position to increase her work hours, particularly once free from this litigation that appears to have occupied her efforts. Even if she were to continue at less than full time work, in the context of having greater care of Y (who is now aged 16), it may be anticipated that she will be strongly remunerated for her work, and have the capacity to undertake a greater amount of working hours than she has recently.
The wife's future prospects require assessment in the context of her primary care of the children. However, whilst describing burdens associated with such, the wife did not adequately identify how, or the degree to which these might reduce her capacity to work.
It can be expected that both parties, should they choose to work, will be in receipt of significant incomes for their working lives, proportionate to the hours that they each work.

[118]

The first item of contention is as to the funds held by the Stennard Family Trust. Those funds no longer appear to be held in the trust, but in an account ...02. Whichever way that they are characterised, they are properly a part of the pool of property of the parties, and so that distinction is not of significance. Those are funds sourced from the sale of the husband's interest in H Pty Ltd. While looking at the amounts contended for by each of the parties it might be thought that this was no longer contentious, the wife exhibited strong suspicion as to how the proceeds had been dealt with, and how they had been reduced to the current amount. The wife presented no cogent evidence suggestive of either waste of these proceeds by the husband, or of concealment of the funds. However, given the prominence of the issue to her case it is convenient to outline here the circumstances of those funds.
The husband set out the flow of funds into and out of the Trust, initially from the sale of the H Pty Ltd shares, and then from the repayment of vendor loans and interest, totalling payments of about $2 million. The husband described that from the initial sale amount of approximately $1 million, all but about $50,000 had been spent by April 2023.
The husband initially identified that about $431,000 of tax had been paid on the sale of the H Pty Ltd shares.[46] Later, the husband explained that this figure had increased to $484,000, and that all tax liabilities for the sale had been finalised and paid for.[47]
In 2021 each of the parties had received an interim property settlement of $125,000. The husband described ongoing expenses for the Suburb M property being met from the proceeds, along with various expenses for the family home, school fees and single expert expenses. This provides an adequate explanation for the use of the initial funds, being the sale proceeds.
The second set of monies of approximately $1 million was received in December 2023. The husband describes that funds were applied to a shortfall in expenses for the Suburb M property, payment down of the redraw on the Suburb M property, school fees, insurance, maintenance costs for the family home, accounting fees for the trust, land tax for the Suburb M property, valuation fees for the family home, and interim payments to the wife of $160,000 and the husband of $100,000. These total about $400,000, explain the reduction in balance from the amount received to the current amount of about $630,000.
The husband's evidence of the balance as at July 2024 was $628,943.42.
Despite the wife's suspicions, there is no good reason to consider that there should be some form of notional add-back applied due to the use and reduction of the funds received in relation to H Pty Ltd. Similarly, to the extent that it was the wife's case that the husband otherwise held a portion of the proceeds in some undisclosed manner, such a suspicion was not made out.

[133]

The complexity in this case has arisen as a result of the manner of the conduct of the proceedings by the wife. She has demonstrated a high degree of suspicion of the husband, including as to his historical manner of management of their finances, as to whether he has hidden assets, and as to various transactions. None of those suspicions have been borne out by the evidence.
While the wife's suspicions, and allegations of family violence (which were likewise not established) were accompanied by confused material and chaotic conduct of the proceedings, when offered the procedural responses as to such, for example that the proceedings be treated as undefended, the husband declined. Instead, his conduct of the proceedings was marked by a concern that the wife be afforded every opportunity to present her case fully.
While these matters form the procedural background for the determination of the property adjustment between these parties, they do not assist to determine what adjustment should be made, other than to point out that the wife's unestablished suspicions do not aid her case.
Both parties ask that there be an adjustment and settlement of property. It may readily be concluded that it is just and equitable to adjust their property interests given the end of their long and cooperative financial relationship in which they, together, acquired significant property and raised their two children.
The husband's overall position is for the equalisation of the parties' superannuation, involving a split in favour of the wife, then a division of non-superannuation property 60-40 in his favour.
The husband submitted that contributions should be assessed to favour him 57-43.
The husband seeks a further adjustment in his favour of 3 per cent pursuant to s 75(2), in order to cater for his retention of embedded CGT should he retain the Suburb M property.
The wife submitted that contributions should be assessed as equal during the relationship, and (given the overall range of adjustment that she seeks and her position, as set out below as to a range in respect of future matters) inferentially favouring her post-separation by a factor of somewhere between 2.5 per cent and 6.5 per cent.
This inference is drawn on the basis that the wife asserts during the relationship contributions should be assessed as equal, that the overall adjustment should be in her favour in the range of 60-61.5 per cent, and that future needs should be assessed at 5-8 per cent. The gap between these outcomes is assumed then to be a contention by the wife that her post-separation contributions make up the gap in those ranges. The parameters of that gap are calculated by deducting the maximum asserted future needs component from the bottom of the wife's overall adjustment range, and the minimum asserted future needs component from the upper limit of the wife's asserted range. This leads to 2-6.5 per cent claim for post-separation contributions.
As identified by the husband, each of the parties commenced the relationship with little property, but with substantial earning capacity. Each is a specialist allied health professional. Each supported the other in their pursuit of these careers, seen for example in the wife's support of the husband during his study in Country DD and in her primary care of the children, and in the husband's support given to the wife, including in her work-related disputes, and in supporting her career otherwise.
Each participated heavily in the care of the children, albeit the wife was available to provide greater care for the children given her time away from work following the children's birth and her engaging in part-time work. Correspondingly, the husband, engaging in more full-time work, was able to provide a greater financial input.
As asserted by the husband, however, this was not a relationship where the parenting was left to the wife and the income earning to the husband. Whilst the wife had the greater responsibility for the care of the children, the husband's heavy involvement in that care is illustrated by his participation in nighttime feeds, bathing and clothing the children, scheduling and attending appointments for the children and managing their educational and learning challenges. Similarly, the wife retained lucrative work even when working part-time.
In terms of financial contributions, the husband places particular emphasis on the inheritance he received at about the time of the commencement of the parties' relationship.
Although two properties were involved in that inheritance, the practical reality was the unencumbered receipt of the Suburb K home that they occupied as a family until 2013, selling this and enabling their acquisition of the Suburb P property, by contributing equity to that purchase of approximately $1.66 million.
Additionally they received financial assistance in the form of a gift from the husband's father that aided them in their acquisition of the Suburb M property.
As identified by the husband, the Suburb K home meant that the parties were otherwise free to use their monies for other endeavours, and assisted in their retention of the Suburb M property.
The Suburb P property remains a significant asset. While the bequest played a significant role in the acquisition and retention of this asset, it should not be thought of as sealed off from the parties' combined contributions. The husband did not assert otherwise, appropriately asserting that the significance and use of the early bequest should be recognised as part of the overall assessment of the parties' combined contributions.
By their joint efforts in acquiring and retaining this property they have retained an asset of significant net value.
It should be recognised that this was a long relationship of sixteen years, during which the parties each contributed in different ways, for example in each providing substantial income, but to different degrees, and each contributing significantly to the children, albeit differently. Although the early contribution by the husband, of the bequest, has formed a significant platform for the building and retention of the wealth of the parties, it must be viewed in its context of all of the contributions made by the parties. In that overall assessment the husband's contributions to the point of separation should be assessed as favouring him, in relation to the non-superannuation pool, 55-45 over those of the wife, while in relation to the superannuation pool as equal. It can be recognised that when the two pools are viewed this involves a less than 10 per cent difference between the parties.
Post-separation has, understandably, seen a change in the manner of the undertaking of roles by the parties. The wife has played a greater role in the care of the children than the husband, reflected in the parenting orders that see equally shared care for X, and an 11-3 care arrangement plus equal holiday split for Y. In this context, and in the context of her conduct of the litigation, she has not undertaken full time work. The husband has maintained a high involvement with the children (at least as reflected in the parenting orders) while working full time and utilising the flexibility that comes with his employment in the care of the children.
The parties have utilised the property of the relationship to meet various expenses, largely in the form of drawings against the proceeds of the sale of H Pty Ltd.
In that context the husband emphasises his role in the preservation of the parties' assets post-separation. Accepting that some of the parties' property has been drawn against by way of partial property settlements, and for the payment of a large part of the school fees and other expenses, the husband points to his use of about $500,000 post-separation income to meet other expenses in a manner that he characterises as preserving the pool of property.
This submission is largely reliant on the husband's meeting of certain child related expenses and for his rent (and accordingly the accommodation of the children whilst in his care) for the post separation period, in contrast with the wife retaining occupation of the Suburb P property without meeting the mortgage for such (although it appears that she met certain other expenses). As identified by the husband in his submissions, the wife, in this context, says that she has been able to make additional payments into the superannuation during this time. Reliant on this submission it may be observed that although this indicates the wife had capacity to meet greater expenses for the Suburb P property than she contributed, she has also made further contributions to another asset of the pool; her superannuation interest. The effect of this is that the housing expenses for the wife (and whilst in her care, the children) are met jointly by the parties in the reduction of the pool by the accruing of unmet mortgage payments, but are somewhat offset by the supplementing of the pool by the wife's payment of further superannuation.
This use of the husband's income comes in the context of the parties not obtaining a child support assessment. Instead, and despite the wife's complaint regarding a lack of child support assessment, they have taken proper steps to provide for the financial care of the children in the absence of such an assessment.
Viewed holistically, and recognising the different manner in which the contributions were made, there is no significant distinction to be drawn between the parties' post-separation contributions that attracts weight in the overall assessment of contributions.
The overall assessment is that the husband's contributions outweigh those of the wife 55-45.
As to the parties' future prospects, each will bear significant future responsibility for the children, the wife to a larger, but limited degree. To the extent that the wife claims a context for her future prospects of Y perhaps being unable to work, such is not established, although it seems uncontroversial that Y will present challenges for both to the parents in the years to come, and more so for the wife who has the greater share of that care. At the same time it should be recognised that at 16 years of age Y is approaching adulthood, while the 13 year old X is in the equal care of both parties.
Although the husband has worked in paid employment to a greater extent that the wife, each attracts the same level of daily remuneration. The advantages potentially enjoyed by the husband do not extend to a higher level of remuneration. Each will, on their jointly proposed future of living in Sydney, be required to change their employment and find new employment. Perhaps this will be easier for the husband given his stronger work history, but no significant impediment for the wife has been established to suggest that she will not be able to secure work for as many hours as she may choose to make herself available. The parties are both highly qualified and highly remunerated.
The husband anticipates that he will meet significant future expenses for the children. While he cannot point to a child support assessment to provide a particular obligation that he do so, the post separation conduct of the parties indicates a commitment to, and expectation that he will do so. While he has not met the school fees in the last few years from income, meaning that the parties jointly met those expenses, the post-separation context and expenses prior to the property settlement brought by this judgment explain why. The husband may be accepted in his estimate as to meeting significant expenses for the children.
It may be expected that the wife will undertake fewer hours to support her care of the children. It may also be expected that the wife will meet significant expenses for the children. However, given that there is no good reason to consider that the care of the children in the medium to longer term will prevent the wife from fully realising her earning capacity, this may be considered a short term issue. Further, as submitted by the husband, differential in their income for this reason may be expected to be ameliorated by his meeting of greater expenses in respect of the children, to ensure that they are educated and supported in the manner anticipated by the parties.
The husband seeks a 3 per cent adjustment based on s 75(2), contingent upon the form of orders that effect the division of property. Specifically, this adjustment is sought on the basis that the husband retains the Suburb M property due to the CGT embedded in that property as a result of the parties' use of the property as an investment since its acquisition.
As observed earlier, the quantum of CGT liability is not the subject of admissible evidence. Neither party adduced evidence sufficient to deal with the issue. Neither party sought to reopen to deal with the issue even when it was identified in written submissions.
Each party seeks to retain the Suburb M property. The husband seeks a 3 per cent adjustment in his favour should he retain it. The wife seeks that she bear responsibility for CGT should she retain it, but that if the husband is to retain it, then he bear responsibility for the embedded CGT.
The issue in of the embedded CGT is vexing, as neither party adduced evidence adequate to establish the potential liability, yet each proposes orders that will see the party that retains that property with that liability. Each proposes to receive the Suburb M property in order to live in those premises, with no short, medium or long term proposal to dispose of the property (although the husband contemplates the potential for disposal at some unidentified point in the future).
As recently confirmed by the Full Court in Marlin & Henson, although in Rosati v Rosati [1998] FamCA 38; (1998) FLC 92-804 the Full Court had observed a requirement that potential CGT be taken into account where a property was acquired solely for investment or its disposal will take place inevitably or probably in the near future,[53] these observations did not form a code for dealing with CGT:

[135]

In this case neither party proposes to dispose of the property in an immediate or certain manner. The circumstances of ultimate disposal bear the uncertainties identified by Nicholson CJ in Carruthers v Carruthers [1996] FamCA 94; (1996) FLC 92-707 at 83-86, where his Honour identified that market fluctuations and the potential to arrange tax affairs mean that what is not a present liability may bear a very different character at the currently unknown point of crystallisation.[55]
Under those circumstances of uncertainty no allowance ought to be made for embedded CGT in the Suburb M property, and correspondingly, no s 75(2) allowance to the husband on its retention by him as identified below.
Although the wife sought that there be a s 75(2) adjustment in her favour, no such allowance should be made in the circumstances of this case. While it may be accepted that the wife's short to medium term earning may be less than the husband's, due to her added care responsibilities (ss 75(2)(c) and (l)), these may be anticipated, as submitted by the husband to be offset by the husband's taking on of additional expenses in respect of the children (s 75(2)(d)(ii)). That is, in the circumstances of this case, it may be anticipated that the husband will, post-separation, bear the heavier direct financial burden for both of the children, the wife the heavier direct burden of the care of Y. To the extent that weight may be assigned to poorer financial circumstances for the wife arising out of her parenting responsibilities for Y, equal weight should be assigned to the husband's assumption of expenses for education and health of both of the children, in a context where it may be expected that both parties will remain strongly remunerated.
Accordingly, the overall adjustment should favour the husband over the wife 55-45 in relation to the non-superannuation property, reflective of the strong impact of the early contribution from the bequest, when seen in the context of the parties' joint strong contributions together since then. Such an adjustment forms a just and equitable resolution of the parties' property settlement in all of the circumstances when accompanied by an equalisation of their superannuation interests. Issues however, arise as to the form of those orders.

[136]

As identified above, at present the parties jointly hold property to a net value of $5,345,017. They also hold the equipment to an unknown value, to be sold.
The husband has a vehicle, and has received property by interim distribution totalling $270,000, the wife a vehicle, interim property distribution and shares totalling $322,202.
Together these total a pool of $5,937,219, plus the equipment and diamond.
The husband holds superannuation to the value of $1,117,897, the wife $667,556, with total superannuation between them of $1,785,453.
A 55-45 split of the non-superannuation property in favour of the husband involves the retention by him of property (including partial property settlements) of $3,265,470, and the retention by the wife of $2,671,749. Additional to each of these will be the proceeds of the sales of the equipment which should be split 55-45 in favour of the husband.
The parties sought different mechanisms for the resolution of their real property interests. Both sought the Suburb M property as a residence in Sydney, given that they both propose to live there, and both require accommodation for themselves and the children. Observing that the Suburb M property has been long associated with the husband's family, and was acquired in part via a gift from the husband's father, his position will be acceded to.
Receiving the Suburb M property (and the associated debt) will involve the husband receiving equity of $2,256,074. To this must be added the value of his motor vehicle at $45,000, partial property settlement at $225,000. This leaves a shortfall of $739,396.
In those circumstances the wife sought to retain the Suburb P property, while the husband sought the sale of that property, with the husband appointed as trustee for the sale. The wife will be given a first option for retention of the Suburb P property. Receiving the Suburb P property (and associated debt) will involve the wife receiving equity of $2,460,000. To this must be added the value of her motor vehicle at $35,000, shares at $2,202, and partial property settlement at $285,000. This leaves the wife with a surplus of $110,453.
The husband's shortfall will need to be made up by the receipt by him of the funds retained from the sale of H Pty Ltd ($628,943) plus the surplus otherwise held by the wife of $110,453, equalling approximately that amount.
Added to these amounts will be a division from the sale of the equipment, and orders for the approximate equalisation of the parties' superannuation interests.
Orders will also cater for default sales for each of the Suburb P property and the Suburb M properties, in the event that the parties do not comply with the necessary prerequisites for the retention of those properties. The orders will provide that the effect of default sales will not undermine the 55-45 division of the non-superannuation property by providing means to calculate the division of the proceeds of sale.
As noted above the wife should have the option, as sought by her, to retain the Suburb P property but, should the wife not effect the relevant payment to the husband and refinance of that property, then the husband will be appointed trustee for the sale, as cooperation in the sale, or leaving the sale to the wife, may be anticipated to work poorly given the manner in which the wife conducted the litigation, and the ongoing, albeit unjustified suspicions that she harbours in relation to the husband.
In that event the husband should not bear responsibility for accrued non-mortgage expenses for that property, such as strata fees, rates, maintenance and the like. To the extent that such would need to be met from the proceeds of sale, they will be excluded from the calculation of the net proceeds of the sale so that the husband does not bear that burden accrued by the wife's occupation of the property.
Orders will also be made for the equalisation of the parties' superannuation interests, which will involve a base amount split of $225,170.50 from the husband's superannuation to the wife.

[141]

(3) The applicant has majority care of their children with their older son Y living with the client 11-12/14 days. Y has experienced severe cyberbullying in two schools in Canberra and has been living in Sydney with grandparents since approximately mid-2024. Noting that maternal grandparents also live in Sydney's Region R and that Y will be completing his high school education in Sydney the ownership of the Suburb M property would allow the applicant to have a residence in Sydney. The ownership of the Suburb P property would greatly assist greatly in the transition and providing best care for Y who will be in year 10 in 2025. Hence it is the applicant's preference to retain the Suburb M property.

(4) Within 10 days of the date of these orders the Husband shall transfer funds amounting to $450,000 from CBA account ending ...02 to the applicant's CBA account ending in ...86. This is an offset account for Suburb P property's Mortgage .... This transfer will reduce the loan amount required to discharge the Suburb M mortgage ($1,043,926).

(5) The applicant will then apply for a home loan to discharge the mortgage of the property at L Street.

(6) Within 42 days of these orders the Respondent will do all things necessary including signing all such deeds, documents and instruments as may be necessary to transfer to the Wife all his right title and interest in the property at L Street, Suburb M in the State of New South Wales currently registered in the joint names of the parties.

(7) Prior to the transfer referred to in Order 5 above, the Wife shall do all such things and sign all such deeds, documents and instruments as may be necessary to discharge the existing mortgage and refinance into her sole name PROVIDED HOWEVER that the Husband transfers to her account the funds pursuant to order 4 above , which will enable the applicant to have sufficient funds for a mortgage in line with her lower income. The husband shall sign the appropriate discharge authority within seven days of it being submitted to him.

(8) From the date of the transfer of the Suburb M property to the Wife, the Wife shall be responsible for all liabilities and outgoings in relation to the Suburb M property and shall indemnify the Husband in respect of same.

(9) At the time of roll over of ownership for the purpose of divorce settlement the respondent husband will indemnify the applicant wife of any unknown conditions, costs or tax apart from Capital gains Tax (CGT). The Respondent is to disclose whether there has been any previous applications for subdivision of this property including but not limited to 2018 and explain the reasoning behind the property appearing to be subdivided as L Street in recent core Logic search documents as indicated in the applicant's affidavit of 12 July 2024. Any documents relating to prior applications for subdivision of the Suburb M property need to be disclosed by the Respondent within 7 days of these orders.

(10) The applicant will be fully responsible for any future Capitals Gains Tax of L Street (Suburb M Property) from the time of joint purchase of the property in mid-2005 (from the respondent's father Mr O) when the property was purchased for a value of 1.1 million dollars (according to NSW transfer documents) in mid-2005, however the applicant wife does not have the contract sale documents. The contract sales are required to prove the cost base of 1.1 million dollars for any future CGT. The respondent husband is to provide these and any other documents necessary to allow roll over to occur.

(11) If the applicant retains the Suburb M property, following court's decision regarding finalisation of the balance sheet, value of addbacks and overall property division, the respondent may need to pay to the applicant a further sum calculated to affect an overall property settlement payment to the Wife such that the Wife retains 60 percent of the total net matrimonial assets.

(12) In the case that the court disagrees with above and Respondent is to retain the Suburb M property the applicant wife is agreeable with the transfer provided the respondent is solely responsible for the Capital gains tax as per order 10 above.

[154]

(24) The court shall decide about inclusion of each party's liabilities on the balance sheet and finalise same.

(25) Otherwise, each party shall retain any personal liabilities, which the court does not accept to include in the balance sheet, including but not limited to credit cards, loans or any debts in each party's name. Each party will indemnify the other in relation thereto.

(26) Within 42 days of these orders and at a time and date agreed between the parties the Respondent will attend upon the Suburb P property on one of three times that the applicant offers his legal representative in writing to collect His grandmother's chattel. The said chattel items were owned by the Husband's late grandmother Ms JJ and the applicant will permit the Respondent to collect and remove these. It is noted that some of the items are valuable including a painting by a famous Australian artist, whose other work hang in an art gallery. These chattel items have not been valued. The applicant will not push for valuation to simplify the settlement process.

(27) The Wife have leave to amend her Application, including to seek a specific cash adjustment pursuant to orders above upon court's decision about addbacks and finalisation of the balance sheet if necessary. It is noted that further disclosure by the respondent of latest statements and the value of current funds in ...02 and updated super entitlements of both parties would assist the court in finalisation of a Joint Balance Sheet in these proceedings.

(28) In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Judicial Registrar of the Court be appointed pursuant to section 106A of the Family law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operations to the deed, documents or instrument upon the Judicial registrar being provided with verification of such refusal or failure by way of affidavit.

(29) The Husband pay the Wife's costs of and incidental to these proceedings.

At a glance

Court

Decision date

Before

Source

Judgment (244 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (3)