Abell and Vogel

FAMILY COURT OF AUSTRALIA

ABELL & VOGEL

[2013] FamCA 274

FAMILY LAW - PROPERTY – De facto relationship – Where the parties cohabited for a short period – Where the actual duration of cohabitation is not as significant as the contributions which each of the parties made – Where there is a significant disparity of contributions in favour of the respondent – Where there is one child of the relationship – Where the respondent lives in Singapore and is the primary carer for the child – Where an adjustment of 8 percent in favour of the respondent is appropriate – Where the applicant is to have 12 percent of the parties’ property and the respondent is to have 88 percent of the available property – Where it is just and equitable to make a property settlement order

Family Law Act 1975 (Cth) – s 79, s 79(4), s 90SF(3), s 90SM, s 90SM(1), s 90SM(3), s 90SM(4)

Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693
JEL and DDF (2001) FLC 93-075
Stanford v Stanford (2012) FLC 93-518

APPLICANT:

Mr Abell

RESPONDENT:

Ms Vogel

FILE NUMBER:

PAC

3321

2010

DATE DELIVERED:

1 May 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Johnston J

HEARING DATE:

29 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Anderson

SOLICITOR FOR THE APPLICANT:

Etheringtons Solicitors

FOR THE RESPONDENT:

Ms Vogel in person

Orders

That Mr Abell and Ms Vogel do all things and sign all documents necessary to cause the monies in the controlled monies account held in trust in their names by Watts McCray, solicitors, with the National Australia Bank (BSB Number … Account number …25) be paid as follows:
(a) 25 percent to Mr Abell and
(b) 75 percent to Ms Vogel.
That it is declared pursuant to s 90SM(1) of the Family Law Act 1975 that each party is the sole owner of all other property and superannuation in their possession and/or control respectively.
That each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
That all exhibits be released.
That each party have leave to re-list these proceedings by arrangement with my Associate in relation to the implementation of these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Abell & Vogel has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 3321 of 2010

Mr Abell

Applicant

And

Ms Vogel

Respondent

REASONS FOR JUDGMENT

These are property proceedings between parties to a de facto relationship. The parties are Mr Abell and Ms Vogel. For convenience I shall refer to them as “the applicant” and “the respondent” respectively.
The parties have been unable to resolve issues concerning property settlement and they have asked this court to determine a property settlement for them.
There is an issue between them about the duration of their period of cohabitation. I shall refer to this again below. What is clear, however, is that they cohabitated only for a short period.

Applications

The applicant seeks orders to the following effect:
·That the monies in the Controlled Monies Account held in trust in the names of the parties by Watts McCray with the National Australia Bank (BSB Number … and Account Number …25) be distributed to the parties as follows:
(a) 65 percent to the applicant
(b) 35 percent to the respondent
·Each party shall be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party at the date of the making of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof, insurance policies are deemed to be in the possession of the party named as the life insured, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements.
·Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
On the other hand the respondent seeks orders to the following effect:
·That the monies in the said Controlled Monies Account be distributed to the parties as follows:
(a) 20 percent to the applicant; and
(b) 80 percent to herself.

Background

The applicant was born in 1970 in the United Kingdom and he is currently 42 years of age. The respondent was born in 1976 in the United Kingdom and she is currently 36 years of age. The parties commenced cohabitation between April and June 2009 and separated in April 2010.
There is one child of the parties’ relationship, namely V, (“the child”) who was born in December 2009. He is now 3 years of age.
The applicant has an adult son from a previous relationship, namely, Mr R.
In April 2003, the applicant commenced living in Australia.
In 2005, the applicant commenced operating a company known as B Pty Limited which provided online services.
In 2008, the parties met while residing in the same block of units at Suburb A, Sydney.
In November 2008, the applicant separated from his former wife, Ms C.
In January 2009, the parties commenced a relationship.
In May 2009, the applicant commenced work at D Pty Limited on a salary of approximately $80 000.
On 13 June 2009, the parties purchased a home at E Street, Suburb F as tenants in common in equal shares for $935 000. The respondent contributed $270 950 towards the purchase and the parties obtained a mortgage in the amount of $704 000 from HSBC. They each paid money into a mortgage offset account. I shall refer to this again below.
In November 2009, the respondent went on paid maternity leave.
In December 2009, the parties’ child V was born in Australia. The child also holds British citizenship.
In March 2010, the applicant’s base salary was increased from approximately $80 000 to $115 000 per annum.
In April 2010, the parties separated under the same roof.
On 29 May 2010, the applicant left the Suburb F home by agreement between the parties. The applicant understood that it had been agreed that he could return after two weeks. When he returned to the home on 12 June 2010 there was an argument and the respondent indicated she did not want him in the home, so he left.
On 30 June 2010, the respondent resumed full-time employment following a seven month period of maternity leave.
In July 2010, the applicant commenced renting a room in a property at Suburb G.
On 20 September 2010, parenting orders were made by Federal Magistrate Harman, in effect, providing for the child to live with the respondent, permitting her to relocate to Singapore, and for the child to spend time with the applicant for up to five days per month from 10.00 am to 4.00 pm or as agreed. The orders provided for weekly Skype contact between the child and his father. The orders also provided for $50 000 to be placed in a controlled monies account to be released to the husband for use in any enforcement or compliance proceedings in relation to the orders.
In September 2010, the Suburb F home was placed on the market for sale.
On 25 September 2010, the Suburb F home was sold for $1.21 million.
On 4 October 2010, the respondent relocated with the child to Singapore.
On 5 November 2010, the sale of the Suburb F property was settled. The mortgage balance of $702 330.45 was paid out. The respondent received $297 000 by way of preliminary property settlement. Following the payment of costs associated with the sale, the balance of funds was deposited into a controlled monies account.
On 25 January 2011, the applicant was dismissed from his employment with D Pty Limited. He was not entitled to unemployment benefits.
On 21 March 2011 the applicant commenced employment with H Company on an annual salary of $100 000.
In May 2011, the applicant commenced a relationship with his current partner, Ms J.
On 27 May 2011, the respondent received her first child support payment through the Child Support Agency of $150.
On 11 July 2011, the applicant filed an Initiating Application in the Federal Magistrates Court seeking property orders.
On 13 July 2011 the applicant ceased working with H Company. He cashed in his superannuation and after paying tax, he received approximately $21 000. He also paid an outstanding tax debt of $2750 and repaid his father $4000 for a loan which had assisted the applicant to establish his company B Pty Limited.
On 26 July 2011, the applicant and Ms J left Australia and travelled to Singapore where the applicant spent time with the child.
On 5 August 2011, the applicant and Ms J relocated to England, where they now reside.
In October 2011 the applicant commenced employment with K Pty Limited.
In December 2011, the Child Support Agency ceased collecting child support for the child on the basis that the applicant was no longer living in Australia. Their action was backdated to 26 July 2011, when the applicant left Australia.
In January 2012 the applicant resigned from his employment with K Pty Limited. He commenced working with a sales agency L Pty Limited.
On 17 February 2012, Federal Magistrate Harman made orders transferring the proceedings to this Court.
In April 2012 the respondent purchased land in Malaysia which she estimates has a value of $505 208. She is in the process of having a home constructed on the land.
On 11 April 2012, I made orders providing for each of the parties to receive $20 000 by way of preliminary property settlement.
In May 2012 the applicant was retrenched from his employment with L Pty Limited.

Credit

The Applicant

The applicant was responsive in his answers to questions during cross-examination.
I had the sense that the applicant was being truthful in his answers. Unfortunately, in some important areas where the parties were at issue, he was unable to demonstrate a recollection for details. For example, during cross-examination about transactions on the HSBC offset account he was unable to provide details of withdrawals which he had made on the account. He said that he endeavoured to pay money into the account but was prevented from doing so because he was informed that the account was frozen. He appeared unable to concede that he had made substantial withdrawals from the account following the parties’ separation. It became clear that he had made the withdrawals. I shall refer to this matter further below.
Also, the applicant was unable to provide details to support his assertions that the parties commenced a de facto relationship in January 2009.
While I regard the applicant generally to be a truthful witness, I have some reservations about the reliability of some areas of his evidence.

The Respondent

The respondent answered questions in a forthright manner. She was mostly responsive and gave me the impression that she was telling the truth. The respondent demonstrated a much stronger recollection for detail than the applicant did.
I am confident that, generally, where there are inconsistencies between the evidence of the parties, the version asserted by the respondent is likely to be more reliable.

Submissions

The Applicant

The submissions on behalf of the applicant were to the following effect.
Contributions
The parties purchased the Suburb F property as tenants in common in equal shares. The applicant assumed 50 percent of the responsibility for the mortgage. The parties contributed $2000 each into the offset account to pay the mortgage. When the applicant discovered that the account had not been set up properly he ensured this was remedied with HSBC.
The applicant paid 57 percent of the mortgage repayments between July 2009 and June 2010 when the respondent required him to vacate the property. The applicant was responsible for designing the interior of the lounge room and the child’s room and he made significant contributions to the renovation of the property.
He undertook the gardening work and attended to household chores, did the grocery shopping, prepared meals including for several dinner parties and cleaned up afterwards.
He actively supported the respondent during her pregnancy with the child, including accompanying her to obstetric consultations, pre-natal classes and was present at the birth. He also took time off work to assist in the period immediately following the respondent’s return home with their baby. He was actively involved in the care of the child.
Section 90SF(3)
The applicant has a reduced earning capacity due to the breakdown of the relationship. The respondent has a very high earning capacity compared with the applicant. The respondent has substantial employment benefits. The applicant is not presently eligible to receive superannuation or any pension.
The applicant has contributed to the respondent’s income earning capacity, property and financial resources during the course of the relationship. The relationship has not significantly affected the earning capacity of the applicant. The breakdown of the relationship has significantly affected the applicant’s capacity to remain in Australia and receive a higher income than would be available to him outside Australia.
The applicant has formed a de facto relationship with an Australian, Ms J, and they are living in England at present. They propose to reside in Australia when a spouse visa can be issued for the applicant to return to Australia.
The applicant was previously assessed to pay child support but there has been a terminating event. When he returns to reside in Australia it is likely that he will be assessed again. The respondent has purported to seek child maintenance but there is no jurisdiction for determining such an application.
Taking account of these matters pursuant to s 90SF(3) it would be appropriate for the Court to make an adjustment in favour of the applicant of 5 percent of the available property.
The ultimate submission was that without being mathematically precise the appropriate just and equitable division of property would be that the applicant would receive the equivalent of approximately 25 percent – 35 percent of the net assets which would equate to approximately 65 percent of the monies in the controlled monies account.

The Respondent

The respondent’s submissions were to the following effect.
She made the major financial contributions including in respect of the mortgage.
She is a single mother without any real financial support from the father and no idea whether she might receive any child support from him in the future. The respondent forfeited her salary and annual bonus for seven months to care full time for the child. She spent $53 630 of her savings to pay household expenses during her maternity leave.
Since returning to work her earnings have significantly decreased. In order to be able to work she has had to employ a full time nanny for the child which is expensive. She has arranged for private schooling for the child from the end of 2012. The applicant is unemployed and pays no child support so that she bears the entirety of the costs involved in caring for the child.
In all the circumstances a just and equitable order would require payment to her of 80 percent of the monies in the controlled monies account and payment of 20 percent to the applicant.

Cohabitation

As indicated above there was an issue about the period during which the parties cohabited.
The applicant asserted that the parties were in a de facto relationship from December 2008 to 23 April 2010. There appears to be no issue that whatever the period of cohabitation, it concluded on 23 April 2010.
The respondent said that they were in a relationship from approximately January 2009 which ended on 23 April 2010. She said that they were not regularly living together until approximately June 2009. She said that she left the home for a total of five weeks during the period June 2009 to April 2010.
There is no question that at the commencement of their relationship, in either December 2008 or January 2009, each of the parties was renting a home unit, the applicant’s at Suburb G and the respondent’s at Suburb A.
The applicant asserted that they commenced a sexual relationship in early January 2009 whereas the respondent asserted that this occurred in late January or early February 2009.
The applicant asserted that he was staying overnight regularly at the respondent’s home and that his clothes were in her wardrobe, as from January 2009. The respondent denied this saying that her wardrobe was not sufficiently large to accommodate all her own clothing let alone that of the applicant. She said that between February and April 2009 the applicant stayed at her home on average once or twice per week.
The respondent said that her work commitments were such that she travelled regularly interstate and to New Zealand and that often she would be away two nights per week. It was common ground that the respondent also had guests from overseas staying at her residence from time to time during the period in dispute. She said that between January and April 2009 she had overseas visitors staying for a total of six weeks. The applicant conceded that he did not stay there at such times.
There was no shared financial relationship between the parties prior to their purchase of their home in June 2009.
I must say that I am inclined to accept the respondent’s evidence about this. In any event it is the applicant who asserted that a de facto relationship commenced before the parties took up residence in their home in June 2009. In my view he has the onus of establishing the facts which would support such a finding. In my view he has failed in this regard.
As I have said, there is no question that cohabitation ceased on 23 April 2010. On the respondent’s version the parties cohabited for approximately 10 months. On the applicant’s version it would have been 15 months. Whichever version about the commencement of cohabitation is true, theirs was a short period of cohabitation.
In any event, in my view, it is not the actual duration of cohabitation which is most significant in these financial proceedings but rather the contributions which each of the parties has made in the relevant sense under the appropriate law. I shall refer to this below.

Mortgage Repayments

There was also an issue about how much each of the parties had paid in mortgage repayments.
It is clear that they opened an offset savings account with HSBC in both names which would be used to pay their housing loan repayments. The parties agreed that they would each deposit an amount of at least $2000 into the account, and transfers would be made of funds from this account to the loan account with the object of surplus money in the offset savings account helping to reduce the interest payable on the housing loan.
It is common ground that in July 2009, when the account was established, the applicant deposited a total of $9000 to the account and the respondent deposited a total of $42 000. Subsequently various amounts were deposited to this account by each party. It is also common ground that each party made withdrawals from the account.
The applicant asserted in his affidavit that taking account of all deposits and all withdrawals by him, he made total net mortgage payments of $25 530 and that the respondent made net total mortgage payments of $19 578.
The respondent denied this. She said that taking account of the funds withdrawn by the applicant from the account both before and after separation, the applicant paid a total amount of $16 677 towards the mortgage repayments. She said that the total amount she paid towards the mortgage payments was $33 578 of which $14 000 was paid after separation.

The respondent cross-examined the applicant about the extent of his withdrawals from the offset account. He conceded that he made withdrawals but was unable to recollect details of the withdrawals. The respondent has demonstrated a much more detailed recollection of movements on the account. In any event the respondent tendered bank statements from the relevant account which supported her assertions.
In all the circumstances I prefer the evidence of the respondent about this matter to that of the applicant. Accordingly, I find that the respondent paid more than twice the amount of mortgage repayments that the applicant paid. But I also note that the respondent had the use of the home to the exclusion of the applicant from the time of separation until completion of its sale in early November 2010.

The Applicable Law

Sub-section 90SM(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that in property settlement proceedings after the breakdown of a de facto relationship, the Court may make such order as it considers appropriate altering the interests of the parties in the property.
Sub-section 90SM(3) provides that the Court must not make an order under the above sub-section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
In the recent case of Stanford v Stanford (2012) FLC 93-518 the majority of the High Court said as follows at paragraph 37:
First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. … The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
38. Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion.
…
The question presented by s 79 is whether those rights and interests should be altered.
40. Third, whether making a property settlement order is "just and equitable" is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised "in accordance with legal principles, including the principles which the Act itself lays down". To conclude that making an order is "just and equitable" only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
…
42. In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
[Footnotes omitted]
In that case the High Court was considering various provisions of s 79 of the Act relating to property proceedings between married parties pursuant to Part VIII of the Act. But in my view, the observations are equally relevant to property proceedings between parties to a de facto relationship brought pursuant to Pt VIIIAB of the Act.
The equivalent of s 79(4) of the Act under Pt VIIIAB is s 90SM(4). The court should identify and assess the contributions of the parties within the meaning of s 90SM(4)(a), (b) and (c). Then the court should identify and assess the relevant matters referred to in ss 90SM(4)(d), (e), (f) and (g) and determine the adjustment, if any, that should be made to the contributions based entitlements of the parties. The court should then consider the overall effect of its findings and determine what order is appropriate.

The Parties’ Existing Legal and Equitable Interests in Property

It is the case that the wife had various bank accounts including accounts in the United Kingdom at the commencement of the parties’ cohabitation. She also had monies in an Australian account, the bulk of which she used to pay the deposit on the former matrimonial home at Suburb F. The overseas monies remained intact during the parties’ cohabitation. As indicated above, since separation, the respondent has acquired land in Malaysia and is having a home constructed on this land. She also continues to have some savings. Orders are not sought in relation to this property.
Each of the parties also had an interest in superannuation. The respondent has a superannuation interest with BT Super Corporate with a value of $49 019. The applicant had an interest in superannuation when the parties were cohabiting with a value of approximately $32 618. But as indicated above, he cashed in his superannuation when he left Australia and received $21 000 after paying tax.
The property applications were presented on the basis that the Court was asked to determine the dispute having regard to the relevant property being the proceeds of sale of the former family home, its contents and the superannuation of the parties, the applicant’s superannuation being added back for this exercise. I propose in effect to leave each of the parties with their superannuation interests noting that the applicant’s is no longer in the form of superannuation. In my view, in the circumstances of this particular case, especially the short duration of cohabitation, there would be somewhat of an artificiality in trying to assess what contributions each party might have made to the superannuation of the other. I shall take these interests into account, however, in considering the relevant s 90SF(3) matters. I have the same view about the respondent’s savings in overseas accounts and the respondent’s property acquired after separation.
The relevant property consists of the following:

$

1.         Controlled monies account held in trust for the parties

160,667

2.         Proceeds of sale of former family home received by the wife

297,000

3.         Wife’s preliminary property distribution

20,000

4.         Wife’s home contents

2,500

5.         Husband’s preliminary property distribution

20,000

^{_____________}

$500,167

The applicant has a liability to his solicitors in the vicinity of $150 000 for legal costs in these and the parenting proceedings.

Sub-section 90SM(3)

The parties are no longer living in a de facto relationship. It will be just and equitable to make a property settlement order as referred to in s 90SM(3) of the Act, because there is not and will not hereafter be the common use of property by them.
Accordingly, in my view, it is appropriate to take into account the matters referred to in s 90SM(4) of the Act.

Contributions

At the commencement of the relationship the applicant owned a second hand Vespa motor scooter of modest value. He also had a Honda motor vehicle, subject to a lease agreement, which was owned by his company B Pty Limited. There was no equity in the vehicle. The company had no value. I also note that the motor vehicle was sold in June 2011 for $23 500, the proceeds of sale only being sufficient to pay the lease.
I accept that this vehicle was a contribution in the sense that the monthly payments were approximately $650 and the respondent had some limited use of this vehicle. I accept that the applicant paid for the petrol for the vehicle and the costs of servicing. The respondent did not have a motor vehicle.
The applicant said that he attended to the preparation of the majority of the meals because he was qualified in the hospitality field. The respondent conceded this. It was also clear that the parties usually ate at restaurants twice a week. In any event the respondent usually did the washing up. The applicant also did some of the household chores such as vacuuming and cleaning. I accept that he mowed the lawns and cut the hedge. The respondent paid a cleaner to clean her Suburb A apartment although she conceded that the applicant assisted with the cleaning of the apartment when she moved out in June 2009.
The applicant said that he paid for the majority of the food and groceries. This was disputed by the respondent. I would accept that the applicant paid for perhaps one half of the costs of the food and groceries.
The applicant paid for two short trips by the parties to the Hunter Valley including at Easter 2009 when his mother was visiting the parties from the United Kingdom. The respondent said that one of these occasions was a birthday present from the applicant to his mother.
The parties had a holiday at Hawaii in May 2009 to attend the wedding of a friend of the respondent. The applicant paid for some of the accommodation, car hire (including insurance), travel insurance, some food and beverages and some of the other costs involved. On the other hand the respondent said that she paid for most of the costs of this holiday. I accept the respondent’s evidence that she paid for more of these costs than the applicant did.
The applicant organised and paid $900 for the removalist (who transported each party’s personal possessions from their respective homes in June 2009), and he assisted the removalist.
The parties undertook some renovations to the Suburb F home. Some of the work was undertaken by a plasterer who the respondent paid. The applicant did some painting, including preparation, of the living room and two bedrooms. The respondent also did some painting. The applicant said that he spent approximately $3200 at the hardware store on tools, equipment and material for the renovation project. I accept that money was spent in this manner but also note that most of the tools and equipment were removed from the home into the possession of the applicant after separation. The applicant also said that he spent money on the installation of a gas hot water system and I accept this.
The applicant also purchased some clothing and equipment in anticipation of the birth of the parties’ child. There is a dispute about this matter and doing the best that I can, I find that he spent approximately $700 in this regard.
The applicant paid the respondent $150 for child support in May 2011. Further amounts to a total of $4444.93 were deducted from his salary by the Child Support Agency for child support overdue in June, July and August 2011. By that time both parties had left Australia and no child support has been paid to the respondent since.
At the time the parties commenced cohabitation the respondent had a substantial amount of money in various bank accounts. This consisted of approximately $305 000 in the Commonwealth Bank, a modest sum in a bank in Singapore, in excess of £131 000 in various accounts in the United Kingdom, some shares with a value of approximately £685 000, some furniture, furnishings and effects as well as some superannuation. In addition, she had recently received a salary bonus in excess of $73 000.
In relation to the purchase of the former family home, the respondent paid the $93 500 deposit as well as a further $177 450 towards the purchase. This was a total of $270 950. These monies were provided from her savings with the Commonwealth Bank referred to above.
The respondent paid $300 for a holiday by the parties to the Central Coast in July 2009 and $490 for their holiday in the Hunter region in November 2009. As indicated above she paid more than the applicant towards their holiday in Hawaii a few months previously.
At the time of the child’s birth the respondent went on maternity leave for seven months. The only salary she received during this time was four weeks maternity pay. I am satisfied however, that she expended in excess of $53 000 of her savings on household expenses including mortgage repayments.
After the child was born she was at home full time and in these circumstances, in my view, it would be most surprising if she did not undertake most of the household chores apart from the preparation of the evening meals as referred to above.
Upon the respondent resuming full time employment on 30 June 2010, she paid childcare costs of $618 per week. The applicant made no contribution to such costs.
I am satisfied that each of the parties made significant financial contributions to the costs of the family during the period of their cohabitation. Each of them sought to persuade the court that they had made a much higher level of financial contribution during their cohabitation than the other. I am satisfied that although the respondent was on maternity leave and not in receipt of an income apart from the four weeks maternity pay referred to above, she used a significant amount of her savings to pay mortgage repayments and living expenses for the family as indicated above. In relation to the mortgage repayments, I am satisfied that the respondent paid much more in mortgage repayments over the whole period of the mortgage than did the applicant. In considering the significance of this I note that she also had the benefit of sole occupancy of the home for some months after the parties separated.
I note that the applicant negotiated with the HSBC to establish an offset account.
It was submitted on behalf of the applicant that the court should assess his contributions as having been in the range of between 20 and 30 percent of the net assets. On the other hand the respondent submitted that she made the major contributions.
It is clear that the overwhelming financial contributions have been made by the respondent. As indicated above she paid a total of $270 950 to the costs of acquiring the home. In addition, I am satisfied that she made a significantly greater contribution to the payment of the mortgage repayments than did the applicant, despite his assertions. I have referred to other financial contributions which she made. In my view, her financial contributions in total were many times the total of the applicant’s financial contributions.
As I have indicated, each of the parties has made contributions to the home, its renovation and maintenance, in respect of household chores and to the welfare of their family unit. The respondent was at home full time for seven months during which time she had the major care of the child. Since separation she has had almost the entire responsibility for the care of the child. In these circumstances she has made the overwhelming parenting contribution.
Bearing in mind the totality of the contributions by each of the parties over the short period involved, in my view, there can be no question that there is a significant disparity of contributions in favour of the respondent.
I assess the contributions overall as being 80 percent by the respondent and 20 percent by the applicant.

Sub-section 90SF(3) Matters

The applicant is 42 years of age and in good health.
He is unemployed and living in the United Kingdom with his partner Ms J.
He has experience working in sales. He is also qualified in the hospitality field. At the time of the parties’ separation the applicant was employed full-time by the company D Pty Limited on a salary of $115 000 plus some other benefits. He said that he has been unable to achieve employment at anything like this salary in the United Kingdom, his annual salary from D Pty Limited being the equivalent of $60 000. In my view, he has the physical and mental capacity to work full time in similar employment for the foreseeable future.
I accept that the breakdown of the relationship has affected the applicant’s ability to remain living and working in Australia because for visa purposes he had been sponsored by the respondent’s employer.
Ms J is experienced in the fashion industry. She has been working in the United Kingdom in casual employment including as a hostess. She also had a stall at a market in London although the applicant said that this had been unprofitable. Ms J and the applicant each contribute to their household expenses.
The applicant appears not to have any property of significant value nor any financial resources. As indicated above, he has a liability to his solicitors of approximately $150 000.
The applicant has a commitment to contribute to the support of the parties’ child V. As indicated above, as at the date of the hearing in late August 2012, he had paid a total of $4595 in child support, the bulk of which had been deducted from his salary payments.
As indicated above, the parties cohabited only for a short period.
On the other hand the respondent is 36 and she is also in good health.
She is living with the parties’ child in Singapore and working full time in an executive role with a corporation by whom she has been employed over many years. Her current annual income is the equivalent of approximately $196 000. On current indications the respondent should have the capacity to earn income at this rate for the foreseeable future.
As indicated above, the respondent owns a property in Malaysia upon which she is having a home constructed. She estimates the value of her property and savings in accounts (apart from her interest in the Controlled Money Account) to be approximately $673 031 and her total liabilities as being $1 283 276. She also has the superannuation benefit of $49 019 referred to above. She estimates her liabilities as being a total of $1 283 276. I accept these estimates for the purposes of these proceedings.
The respondent has the primary responsibility for the care of the parties’ son V.
In my view, a consideration of the relevant s 90SF(3) matters requires an adjustment of the available monies in favour of the respondent in order to achieve an appropriate order.
I accept, as submitted on behalf of the applicant, that the respondent enjoys a stronger income-earning capacity than the applicant. And it is the case that the applicant will be likely to have substantial costs in travelling to Singapore to develop his relationship with his son. In addition, the respondent has considerable property and her superannuation whereas the applicant has no property other than his interest in the controlled monies account. And he has a significant liability to his solicitors.
But these matters have to be considered in the context of all relevant matters. Highly relevant in my view, is the fact that the respondent will be almost certain to continue to have the major responsibility for the care of the child. This is very likely to continue to require the respondent to provide for the physical and emotional care of the child, his accommodation, financial support, child care and costs of his education.
There is no current child support assessment because the assessment which had been in place was brought to an end by the terminating events of the parties and the child ceasing to reside in Australia.

It might be the case that if one of the parties was to return to Australia to live or if the respondent was able to take action in the Singapore courts, some support for the child might be forthcoming in the future. But this is far from clear at this time.
Since separation, the only financial support provided by the applicant has been total payments to the respondent of $4595. Averaged over the period from separation to the date of this hearing, this has been approximately $41 per week. This would be a fraction of the real costs of providing for the child. And most of this money has been forthcoming as a consequence of action by the Child Support Registrar to have the money deducted directly from the applicant’s salary payments.
I note that I have taken this matter into account in my assessment of the parties’ contributions. I consider this relevant at this point in considering the likely extent of responsibility which the respondent will have into the future for the care of the parties’ child. Given the limited support in relation to the needs of the child provided in the past by the applicant, it is not easy to be confident that an adequate level of support in this regard would be likely to be forthcoming in the future.
Taking account of all relevant matters, in my view an adjustment of 8 percent of the relevant property in favour of the respondent would be appropriate.
In arriving at the relatively modest adjustment of 8 percent, I have not overlooked the caution expressed by the Full Court in JEL and DDF (2001) FLC 93-075 at paragraph 140 referring to Clauson and Clauson (1995) FLC 92-595 to the effect that when assessing the amount of any relevant adjustment the critical issue is the real impact in money terms which the adjustment would have.
Eight percent of the $500 167 of available property is $40 013 which would be a differential between the parties of $80 026. This is a modest amount. But it takes account of all the other relevant matters, particularly the substantial differences between the parties in terms of their property and capacities for earning income.

Conclusion

The applicant is to have 12 percent of the available property. This is $60 020 (12 percent of $500 167 = $60 020).
The applicant has received $20 000 in preliminary property distribution. Accordingly, to achieve property with a value of $60 020 he will require further property with a value of $40 020 ($60 020 - $20 000 = $40 020). This will come from the controlled monies account.
There is $160 667 in that account. The sum of $40 020 is 24.909 percent of $160 667. I shall round this off to 25 percent of the controlled monies.
On the other hand the respondent is to have 88 percent of the available property. This is $440 147 (88 percent of $500 167 = $440 147).
The respondent has the following property:

$

1.         Proceeds of sale of former family home

297,000

2.         Respondent’s preliminary property distribution

20,000

3.         Respondent’s home contents

2,500

^___________

$319,500

To achieve property with a value of $40 147 the respondent will require additional property with a value of $120 647 ($440 147 - $319 500 = $120 647). This will come from the controlled monies account.
As indicated above, there is $160 667 in that account. The sum of $120 647 is 75.091 percent of $160 667. I shall round this off to 75 percent of the monies in the account.
So the applicant will have 25 percent of the funds in the controlled monies account and the respondent will have 75 percent thereof.
This is a large disparity in terms of the result. But the period over which relevant contributions could be made was short. And there was a large disparity in the parties’ contributions, the applicant’s contributions having been modest by comparison with those of the respondent. Furthermore, as I have said, the adjustment of 8 percent of available property in favour of the respondent to recognise in particular her ongoing major responsibility for the child, is quite modest. This modesty is in recognition of the significant amount of property owned by the respondent and her strong income position compared with that of the applicant, and the factors referred to above which favour the applicant.

I certify that the preceding one hundred and forty-eight (148) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 1 May 2013.

Associate:

Date: 1 May 2013

[2013] FamCA 274

Key Legal Topics

Areas of Law

Family Law

Property Law

Legal Concepts

Remedies

Jurisdiction

Procedural Fairness

Statutory Construction

Appeal

$
1. Controlled monies account held in trust for the parties	160,667
2. Proceeds of sale of former family home received by the wife	297,000
3. Wife’s preliminary property distribution	20,000
4. Wife’s home contents	2,500
5. Husband’s preliminary property distribution	20,000
^{_____________}
$500,167

$
1. Proceeds of sale of former family home	297,000
2. Respondent’s preliminary property distribution	20,000
3. Respondent’s home contents	2,500
^___________
$319,500