Husband Opposes Wife's Application for Equal Division of Property

Dengate & Kettering [2021] FCCA 1254 (8 June 2021)

The parties who were in a lengthy relationship dispute property settlement as the wife seeks equal division of property.  On the other hand, the husband seeks adjustment in his favour for work developing/renovating properties.  The Court, in adjudicating the case, considered the issue of add-backs as well as the wife's health. 

Facts:

The parties, who were in a 36 year relationship, bought and sold real properties in City R and in Town C near Town S.  The Wife has been in poor health for at least 10 years, including being diagnosed with cancer in 2009 and undergoing surgery.  The Wife has a limited ability to earn income from employment and is in poor health due to her medical conditions.  The Husband wishes to preserve and have transferred to him, investment/rental properties at Town C so as to receive an income from them.  The Husband’s main occupation in recent years has been as an owner-builder/renovator of rental properties in the Town C area. Both parties set out a table of relationship assets.  The Wife arranged for a formal valuation of some of the real properties.  According to the Wife's evidence, there was some difficulty allegedly caused by the Husband, in the valuer obtaining access to the properties and/or with arranging payment to the valuer. 

The Wife sought a final order in her Initiating Application that the property pool of the parties be determined and be divided as to 60% to the Wife and 40% to the Husband.  In the Wife's Amended Initiating Application filed 12 April 2021, she seeks as a final order, an equal division of the relationship property.  She further requests that her 50% interest in the relationship property be two pieces of real estate, her motor vehicle, some chattels and a cash payment to make up the 50% total value.  The Wife seeks that various payments or the value of items retained by the Husband, be added back to the pool of relationship property.  The Husband seeks that the Wife's Initiating Application be dismissed and that the relationship property be divided as to 60% to the Husband and 40% to the Wife due to work developing/renovating properties.  The Husband seeks that the Wife receive two (2) properties at Suburb G outside City R and the Husband receive seven (7) properties at Town C outside Town S.

Issues:

I. Whether or not there should be an equal division of property.

II. Whether or not various payments or the value of items retained by the Husband should be added back to the pool of relationship property.

Applicable law:

Family Law Act 1975 (Cth) s 90 SM (1) - provides that in property settlement proceedings after the breakdown of a de facto relationship, the court may make such an order as it considers appropriate with respect to the property of the parties to the de facto relationship.

Family Law Act 1975 (Cth) s 90 SM (4) - provides that the court should take into account, in property settlement proceedings, the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship.

Analysis:

The Husband exhibited unreasonable behaviour in not allowing the Wife to reside in one of the jointly owned properties whereas he has had the benefit since separation in 2019, of residing in the jointly owned family home.  The Wife gave evidence of the Husband requiring her and her daughter to move from ‘B(2) Street, Town C’.  She and her daughter then had to rent privately.  Despite the Court ordering that assets be valued at the parties’ joint cost, the Husband threatened to complain that the Wife was guilty of fraud when she paid for a valuation from the joint account.  The Husband did not give financial disclosure.  The Wife had to piece together information obtained by subpoena to the Husband’s banks and had to pay for her solicitor’s substantial work to consider the material returned following the subpoena.

There was dispute or confusion about the value or payment the Husband received, for example whether the Motor Vehicle 5 was sold by him for $4000 or $3500.  The payment or value received by the Husband is unknown for example the ivory collection and the antique collectables. 

Conclusion:

The Court ordered that the Husband transfer to the Wife at the Wife’s cost and within 60 days of the date of this Order, all of his right, title and interest in the real properties situated at B(1) Street, Town C and at D Street, Town C.  At the Husband’s discretion, the parties are to deal with the remaining real properties by having the wife transfer to the Husband at the Husband’s cost and within 60 days of the date of the Order, all of her right, title and interest in all or any of such properties, and/or join with the Husband in terms set out in paragraph 3, to sell all or any of those properties.  The Husband shall pay and keep indemnified the Wife against all liability for payment of principal and interest under the said loans and personal covenants therein, pending and until such discharge.  The Court has not included any amount as an add-back.