Akbar and Mali and Anor

[2013] FamCA 1010

FAMILY COURT OF AUSTRALIA

AKBAR & MALI AND ANOR [2013] FamCA 1010

FAMILY LAW – PROPERTY SETTLEMENT – Where there was no appearance by the Applicant – Where the evidence of the Applicant was struck out for not adhering to s 98AB of the Family Law Act 1975 (Cth) – Whether a property is found to be held on constructive trust by the Respondent husband for his father – Short marriage – Where the husband has made all contributions to acquisition of property during the marriage – Where no adjustment in respect of s 75(2) of the Family Law Act 1975 (Cth) is considered appropriate

Family Law Act 1975 (Cth) ss 75(2), 79, 98AB(2), 106A
Family Law Rules 2004 (Cth) r 11.02, 11.03

Baumgartner (1987) 164 CLR 137
Muschinski v Dodds (1985) 160 CLR 583
West v Mead [2003] NSWSC 161
Stanford v Stanford (2012) 247 CLR 108
Bevan & Bevan [2013] FamCAFC 116
D & D [2006] FamCA 245

APPLICANT: Ms Akbar

1st RESPONDENT: Mr Mali

2nd RESPONDENT: Mr B

FILE NUMBER: PAC 5300 of 2011

DATE DELIVERED: 20 December 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 12 December 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Sydney Metropolitan Lawyers

COUNSEL FOR THE 1ST RESPONDENT: Ms Bateman

SOLICITOR FOR THE 1ST RESPONDENT:	Bannisters Lawyers & Attorneys
COUNSEL FOR THE 1ST RESPONDENT:	Mr Jacobs
SOLICITOR FOR THE 2ND RESPONDENT:	Turnbull Kasif Lawyers

Orders

1. That the Court declares that the First Respondent husband holds his interest in the property known as C Street, Suburb D in the State of New South Wales and described as … on trust on behalf of the Second Respondent Mr B Mali.

2. That within one (1) month from the date of these Orders the First Respondent husband do all necessary things and sign all necessary documents so as to transfer his interest in the property known as C Street, Suburb D in the State of New South Wales and described as … to the Second Respondent Mr B Mali.

3. That within one (1) month from the date of these Orders the Applicant Wife do all necessary things and sign all necessary documents so as to transfer to the First Respondent husband her right, title and interest in the property known as E Street, Suburb F in the State of New South Wales, and concurrently with such transfer, the husband do all things necessary and sign all necessary documents so as to procure a discharge of the present mortgage encumbrance secured over the said property so as to release the wife from all or any liability arising from the said mortgage.

4. That pursuant to section 106A of the Family Law Act 1975 (Cth) the Registrar of the Family Court of Australia at Parramatta is hereby appointed to execute such deeds or documents in the name of the Wife as are necessary to give validity and operation to the orders made herein.

5. That all outstanding applications and cross-applications be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Akbar & Mali and Anor 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 PARRAMATTA

FILE NUMBER: PAC 5300  of 2011

Ms Akbar

Applicant

And

Mr Mali

First Respondent

And

Mr B Mali
Second Respondent

REASONS FOR JUDGMENT

The Proceedings 

1. These are proceedings for property settlement orders commenced by the Applicant wife by application filed on 10 November 2011.

2. In that application the wife sought orders that in summary provided for:

   a)A sale of the property at E Street, Suburb F and a division of the net proceeds of sale as to 55 per cent to the wife then, after an adjustment in relation to expenses incurred by the husband by way of maintenance and outgoings as against rental income received by him, the balance then remaining to the husband; and

   b)A payment by the husband to the wife of a sum equivalent to 50 per cent of the husband’s interests in the property at C Street, Suburb D, and in default of such payment, sale of the property in order to facilitate such payment to the wife.

3. The proceedings were first listed before the Federal Magistrates Court, as it then was, on 1 February 2012. On that date the husband was ordered to file a response, financial statement and affidavit in support of orders sought by him by 14 March 2012.

4. On 20 March 2012 proceedings were once again before the Court and the time for the husband to file his documents was extended to 30 March 2012 and the Court made certain Orders as to disclosure. The Court noted that the Respondent husband proposed to join his father as a party to the proceedings as Second Respondent.

5. On 20 March 2012 the Respondent husband filed his Response and in that Response sought orders that, in summary, provided for:

   a)The wife to transfer to him her interest in the property at E Street, Suburb F and that concurrently with such transfer the husband discharge the present mortgage encumbrance secured over the property;

   b)That the husband transfer to the Second Respondent all his right title and interest in the property situate at C Street, Suburb D; and

   c)That the Court declare the Second Respondent be solely entitled to the Suburb D property to the exclusion of the wife and the husband.

6. On 3 May 2012 the Second Respondent Mr B Mali was joined as a party to the proceedings and the Court noted that disclosure as previously ordered by the Court had not been completed and ordered that in the event of either the husband or wife failing to comply with orders for disclosure by 25 May 2012 either be at liberty to relist the proceedings and seek to have the proceedings heard on an undefended basis.

7. On 20 September 2012 the Court ordered that the Second Respondent file and serve a response, financial statement and affidavit in support of orders sought by him by 19 October 2012.

8. On 19 October 2012 the parties were directed to attend a conciliation conference with a Registrar on 18 December 2012.

9. On 18 December 2012 the conciliation conference did not proceed due to the unavailability of the wife. The husband’s costs of the conciliation conference were reserved.

10. On 4 March 2013 proceedings were transferred to this Court. On 15 April 2013 proceedings were listed before a Registrar in chambers and each of the parties was represented. Orders were made facilitating the appointment of a single expert as to real estate values.

11. On 23 May 2013 the matter was once again listed before a Registrar in chambers. All parties were represented. The Court was informed that the parties had agreed as to the single expert to be appointed. The Court ordered that the joint letter of instructions to the single expert be settled by 3 June 2013.

12. On 1 August 2013 proceedings were once again listed before a Registrar. The Registrar noted that the valuations of real estate were available.

13. On 3 September 2013 the matter was listed for a case management hearing before this Court. The Court made the following directions, in summary:

    a)That the parties file and serve one consolidated affidavit in chief together with any witnesses affidavits by 8 November 2013;

    b)That the parties file and serve any amended application, response and updated financial statements by 8 November 2013;

    c)That the Applicant provide to the First Respondent within 28 days a draft joint balance sheet and that the First Respondent within a further 28 days insert into that balance sheet his contentions as to the asset pool and asserted values with the parties to footnote the reasons for their respective contentions and the balance sheet to be filed by no later than 8 November 2013; and

    d)Proceedings be adjourned to 11 November 2013 for the purposes of allocating trial dates subject to compliance with orders.

14. On 11 November 2013 the matter was listed for a case management hearing and all parties were represented. The Court ordered, in summary:

    a)Proceedings be adjourned for a further case management hearing to 15 November 2013;

    b)That the Applicant Wife file and serve one consolidated affidavit in chief together with an affidavit by any witnesses relied upon by 25 November 2013;

    c)Costs reserved; and

    d)The Court noted that the purpose of the further adjournment is to ascertain as to whether the wife is able to be in attendance in Australia for the purposes of a hearing in the week of 13 December 2013.

15. On 15 November 2013 the matter was listed for a further case management hearing. All parties were represented. The Court ordered, in summary:

    a)That in the absence of the Applicant complying with the order as to filing her affidavit material by 25 November 2013 proceedings be listed for undefended hearing on 12 December 2013;

    b)Costs reserved; and

    c)The Court noted that the solicitor for the Applicant had received no further instructions, that on 3 September 2013 parties were ordered to file and serve trial affidavits by 8 November 2013, and that on 11 November 2013 the time for the Applicant to comply with that order was extended to 25 November 2013.

16. The Court’s powers in respect of case management are set out in Rule 11.02 of the Family Law Rules 2004 (Cth) (“the Rules”), as follows:

    (1) If a step is taken after the time specified for taking the step by these Rules, the Regulations or a procedural order, the step is of no effect.

    (2) If a party does not comply with these Rules, the Regulations or a procedural order, the court may:

    (a) dismiss all or part of the case;

    (b) set aside a step taken or an order made;

    (c) determine the case as if it were undefended;

    (d) make any of the orders mentioned in rule 11.01;

    (e) order costs;

    (f) prohibit the party from taking a further step in the case until the occurrence of a specified event; or

    (g) make any other order the court considers necessary, having regard to the main purpose of these Rules (see rule 1.04).

17. The prima facie severity of the Rule is ameliorated by the provisions of Rule 11.03.

18. On 11 December 2013 the Applicant filed in the Registry an affidavit purportedly sworn on 2 December 2013. The affidavit purports to have been sworn at City G, Country H on 2 December 2013 before Ms I, a lawyer.

19. S98AB(2) of the Family Law Act 1975 (Cth) (“the Act”) provides that an affidavit to be used in a proceeding in the Family Court maybe sworn or affirmed in a place outside Australia before:

    a)An Australian diplomatic or consular officer in that place;

    b)An employee of the Commonwealth authorised under the Consular Fees Act 1955 exercising his or her function in that place;

    c)An employee of the Australian Trade Commission authorised under the Consular Fees Act 1955 and exercising his or her function in that place;

    d)A notary public who is exercising his or her function in that place;

    e)A person who is qualified to administer an oath or affirmation in that place and is certified by a person mentioned in paragraphs (a), (b), (c) and (d) or by the Superior Court of that place to be so qualified.

20. The section further provides that an affidavit sworn or affirmed outside Australia otherwise than before a person referred to above may be used in a proceeding in the Family Court in circumstances provided by the standard Rules of Court. No such provision is in force.

21. On 12 December 2013 the matter came on for trial on 10:00 am. At that time there was no appearance for or on behalf of the Applicant wife and the First and Second Respondents were represented.

22. The matter had commenced to proceed on an undefended basis when at about 10:10 am the solicitor for the Applicant appeared.

23. The solicitor for the Applicant made an application for the proceedings to be further adjourned. That application was dismissed by the Court.

24. The affidavit purportedly filed on 11 December 2013 was struck out for non-compliance with the Rules.

25. The Applicant’s solicitor sought leave to be excused and was duly excused by the Court.

26. The matter subsequently proceeded to an undefended hearing.

Background

The Property at C Street, Suburb D

1. In 1986 the Second Respondent, the Respondent husband’s father, purchased the cottage property at J Street, Suburb K for $60,000. The mortgage was discharged by January 1998.

2. In October 2001 the Second Respondent found vacant land premises at C Street, Suburb D. The Second Respondent proposed to build there on a new and more comfortable home for himself, his wife and their nine children.

3. It was recommended to the Second Respondent by an architect retained to design a home that the Second Respondent obtain an owner builder’s permit that would reduce the cost of construction. The Second Respondent was unwilling to do so due to his lack of English and it was agreed that the property would be purchased in the name of the First Respondent in order that the First Respondent could obtain the owner builder’s permit.

4. The Second Respondent agreed to that course provided that there was a strict understanding that even though the property would be in the First Respondent’s name he would have no interest in the property and it would be at all times regarded as the property of the Second Respondent.

5. In October 2001 contract for purchase of the property at Suburb D was exchanged at a purchase price of $227,000. The Second Respondent paid the deposit from funds available to him at that time. A loan was approved in the name of the Second Respondent and the First Respondent to the sum of $230,000 to purchase the land at Suburb D and a short time later a further loan was approved in the name of the Second Respondent and the First Respondent for an amount up to $270,000 to construct a two-storey home thereon.

6. The purchase of the Suburb D property was settled on or about 27 November 2001 and the two loans were secured by way of separate mortgages over the property at Suburb D and the Second Respondent’s home at Suburb K as collateral security.

7. Following settlement of the purchase the Second Respondent paid to the First Respondent the mortgage payments due and payable under the mortgages and payment was attended to by the First Respondent.

8. Subsequently a home was constructed on the Suburb D property and in late 2002 the Second Respondent, his wife and eight of the nine children including the First Respondent moved in to the property as the Second Respondent’s family residence.

9. All property outgoings and insurances for Suburb D have been paid by the Second Respondent.

10. In 2005/2006 the Second Respondent subdivided his Suburb K property into two lots known as the “J Street property” and the “L Street property”.

11. In January 2007 the Second Respondent sold the J Street property for $275,000 and the net proceeds of sale of $265,173 was deposited into the mortgage secured over the property at Suburb D reducing the mortgage indebtedness over the property to the sum of $207,351.

12. In June 2007 the mortgage balance secured over the Suburb D property was refinanced with Perpetual Trustees Victoria Ltd.

13. On 23 November 2007 the Second Respondent settled the sale of the Freeman Place property. The property sold for the sum of $215,000. From the proceeds of sale the sum of $193,405 was paid to reduce the mortgage to Perpetual Trustees Victoria Ltd down to $16,551 with payment then of only $123 per month.

14. On 3 June 2010 the First Respondent and the Second Respondent entered into a Deed of Acknowledgement as to the property at Suburb D. Pursuant to that Deed the First Respondent husband acknowledges that he made no substantial financial contribution to the acquisition or construction of the property and that he would execute such documents as may be required by the Second Respondent relating to the Suburb D property and that he would make no claim as against that property by reason of him being the registered proprietor.

Orders Sought by the Second Respondent

1. In his Response filed on 22 May 2013 the Second Respondent seeks orders that provide for, in summary:

   a)A declaration that the First Respondent husband holds his interest in the Suburb D property on trust for the Second Respondent;

   b)A declaration that the Suburb D property is not a matrimonial asset of the marriage;

   c)An order that the wife’s application in so far as it relates to the Second Respondent be dismissed; and

   d)An order that the Applicant wife and/or her legal representatives pay the Second Respondent’s costs of and incidental to the proceedings on an indemnity basis.

2. The First Respondent husband does not oppose the orders (a) and (b) sought by the Second Respondent.

3. In Baumgartner (1987) 164 CLR 137 the majority (Mason CJ, Wilson and Deane JJ) referred to the result reached by Deane J in Muschinski v Dodds (1985) 160 CLR 583 as an application of the general equitable principle which restores to a party contributions which he or she has made to a joint venture which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them. Their Honours cited what Deane J had said in Muschinski (at 620):

   ... the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do: (cf Atwood v Maude [1858] LR 3 Ch App 369 at pp 374-375 and per Jessel MR, Lyon v Tweddell(1881) 17 Ch D 529 at 531).

   and see West v Mead[2003] NSWSC 161 (Campbell J).

4. In Baumgartner the majority noted (at 148) that Deane J in Muschinski had:

   pointed out that the constructive trust serves as a remedy which equity imposes regardless of actual or presumed agreement or intention ‘to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle’” but had rejected the notion that it should be imposed in accordance with the idiosyncratic notions of what was just and fair.

5. The evidence before the Court in relation to the Suburb D property clearly supports a finding by the Court that the husband holds that property on constructive trust for the Second Respondent.

6. Notwithstanding the consent of the husband to the relief sought by the Second Respondent, the Second Respondent is entitled to the relief sought by him and the Court will make orders accordingly in relation to the Suburb D property.

The Cohabitation of the Wife and Husband

1. The husband and wife married in 2008 in a Registry ceremony in Sydney.

2. At the time of marriage the husband had the following assets:

   a)Savings of about $155,000;

   b)The Suburb D property held on trust for his father, the Second Respondent, subject to mortgage;

   c)His company M Pty Ltd, incorporated by him on 17 January 2008. The husband was a self-employed tradesman through this company; and

   d)A gold chain, superannuation of about $1000.

3. At the time of marriage the wife had virtually no assets save for clothing and personal effects.

4. In April 2008 the husband purchased the wife an 18 carat white gold ring with a 1 carat diamond that he asserts to have a value of about $13,000.

5. In 2008 the wife and husband were married in a religious ceremony in the orthodox religion at the Orthodox Church at Croydon Park.

6. The subsequent wedding reception for about 300 guests at a reception centre cost the First Respondent husband between $40,000 and $45,000. At the reception the husband and wife received wedding gifts in addition to cash gifts that total about $16,000.

1. The parties expended the wedding gifts on a honeymoon in Queensland, purchase of furniture, purchase of items for the wife’s mother, purchase of the clothes for the wife and for the husband and on other living expenses.

2. The husband and wife cohabited from 16 May 2008 until 1 July 2010. Until about March 2010 the husband provided to the wife an allowance each fortnight. During this period the husband and wife resided in premises at N Street, Suburb O owned by the husband’s cousin at less than market rent.

3. Payments in relation to the parties’ accommodation were paid by the husband.

4. During the period from mid May 2008 until February 2009 the wife’s mother resided in the home with the husband and wife. The wife’s mother had no income and was provided for by the husband from his income in addition to which he provided to the wife’s mother an allowance each fortnight.

5. During the period of cohabitation the wife did not seek employment nor did she assist or work for the husband in his business.

6. In October 2008 the husband located a block of vacant land at E Street, Suburb F. He negotiated a purchase of the land for the sum of $127,000 in his own name.

7. On attending his solicitor on 23 October 2008 to pay the deposit and sign the contract at the wife’s instigation her name was added to the contract although she was making no financial contribution to the purchase.

8. The husband paid the 10 per cent deposit on exchange of contracts in the sum of $12,700 from his funds and on settlement of the purchase on 27 November 2008 provided the balance of purchase price together with funds for stamp duty and legal costs on purchase from his own funds.

9. Subsequently in early 2009 a construction loan was obtained from the Westpac Banking Corporation to a maximum of $265,000 and a building contract for the construction of a new dwelling on the property was entered into. The wife returned to Australia in August 2009. Upon her return the wife did not seek or obtain any form of employment

10. At about this time the husband funded the wife’s return to Country H ostensibly to care for her sick mother. The husband paid for the wife’s airfare and $5000 for expenses whilst she was there.

11. Subsequent to the negotiation of the building loan the husband attended to all payments in relation to that loan from his own income. Over the latter period of 2009 the husband drew down progressive payments in relation to the construction loan and sold his gold chain for the sum of $6800 to apply towards the cost of construction.

12. In early December 2009 the husband and wife commenced to occupy the Suburb F property.

13. In April 2010 the wife was granted a permanent residency in Australia.

Separation

1. On 1 July 2010 the husband returned from his work early and observed that certain property was missing from the home at Suburb F and the Applicant wife was not present. The husband observed that missing from the home was the wife’s suitcase, her personal effects, a ring worth about $13,000, jewellery purchased by the husband for the wife for about $3000, cash of about $9000, the wife’s wedding dress and her other clothing and personal effects.

2. The wife in July 2010 returned to Country H. It does not appear that she has any intention of returning.

3. As at the date of cohabitation the assets of the parties comprised:

   a)The Suburb F property owned by the parties jointly subject to an outstanding construction loan of about $152,000;

   b)The husband’s interest in the Suburb D property on trust for his father;

   c)The husband’s interest in his company M Pty Ltd;

   d)The husband’s superannuation of about $1500.

4. In July 2013 a liquidator was appointed to the husband’s company and at about that time he commenced paid employment as a tradesman.

5. The husband continues to reside in the Suburb F property as does his sister, her husband and their three children.

Discussion

1. The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford (2012) 247 CLR 108 and that decision was the subject of detailed consideration by the Full Court in Bevan & Bevan [2013] FamCAFC 116.

2. The Court should firstly identify the present assets, financial resources and liabilities of the parties.

3. The Court should then consider whether, having regard to the circumstances before it, it would be unjust and unfair not to make orders for alteration of the property interests of the parties having regard to the provisions of s 79(2) of the Act.

4. The Court can then proceed to consider the contributions by each of the parties as contemplated by s 79(4)(a) – (c) of the Act.

5. Having determined the contribution-based entitlements of the parties the Court can then consider the various factors set out in s 75(2) of the Act and whether any further adjustment to the parties’ contribution-based entitlements is appropriate.

6. The Court is then required to consider the justice and equity of the proposed orders and whether in all the circumstances the orders to be made are appropriate.

The Property of the Parties

1. The Court is firstly required as a starting point to identify the existing legal and equitable interests of the parties in property and their liabilities and financial resources at the time of the hearing.

2. As a consequence of the relief sought by the Second Respondent and orders proposed to be made in regard thereto the matrimonial balance sheet is as follows:

   Assets:

   Joint              E Street, Suburb F               $455,000

   Husband       Motor vehicle  $  22,000

   Husband       Household contents  $      500

   Husband       Jewellery  $      500

   Husband       ING superannuation  $    1,400

   Husband       Net money at bank  $ Minimal

   Wife               Ring retained at separation  $ 13,000E

   Wife               Cash retained at separation  $     9,000

   Wife               Other jewellery retained at separation     $    3,000E    

   Liabilities:

   Joint              Mortgage Suburb F property  $156,000

   Husband       Outstanding tax liability  $  40,561

   Husband       Citibank credit card  $    3,523

   Husband       Personal loan from father  $    5,500

Unjust or Unfair Not to Make Orders

1. Firstly, the Court should determine whether it is just and equitable to make a property settlement order.  The Court needs to conclude that it would be unjust or unfair to leave present property rights intact.

2. In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.

3. In particular such a circumstance arises where both parties seek adjustment orders but are unable to agree as to same.

4. In this matter over the period of the parties’ very short relationship, the wife made no financial contribution but obtained financial benefit in that she was housed by the husband and retained certain items of property including jewellery and cash on separation.

5. As a consequence of the commencement of proceedings over two years ago as to property settlement in respect to which both parties seek disparate property adjustment orders identified earlier in these reasons, the Court is satisfied that it is just and equitable to make orders as to property adjustment under s 79 of the Act.

Contributions

1. The Court is next required to consider an assessment of the parties contributions in terms of s 79(4)(a)-(c). This matter reflects a cohabitation of just over two years. The wife brought nothing to the marriage.

2. In D & D [2006] FamCA 245 Carmody J reviewed the cases on short relationships. Whilst each case turned on its own facts some relevant general propositions were expressed by His Honour:

   45. There is no authority to equalise the financial strengths of the parties nor, subject to s 75(2) (o), to correct economic anomalies by reference to notions of fault or blame. On the contrary, subsec 79(2) expressly requires the court to stay its hand and refrain from making any order for property division unless the alteration of existing property rights is just and equitable. Sometimes the relevant concepts of justice and equity will favour the status quo..........

   51. Each party expects the other to contribute as much as they can in their chosen or allocated sphere. They do not keep a running record or account of who does what for the overall benefit of the family. What each partner gives or gives up is not assessed in purely monetary terms or to the extent that they have financial consequences. To paraphrase the contemporary American poet, E. E. Cummings, what is done by one alone is done for the other. The degree of effort counts for more than the actual results achieved. What matters most is whether each of them pulled their weight and shouldered their fair share of the burden.

   52. In Shewring, Nygh J emphasised the importance of evaluating the efforts of the parties rather than the results they achieved. His Honour expressed the opinion that any qualitative assessment of contribution should be based on the principle that each party should make such contribution as can reasonably be expected having regard to the nature of the party's capacity, the ability of each of the parties and expectation of the spouses.

   53.  The alteration exercise, therefore, involves an overall assessment of the proportionate responsibility of each party for the acquisition, maintenance and improvement of the property which represents the fruits of the totality of their joint efforts in their diverse but equally valuable roles in the marriage partnership, quantifying their respective contribution to the accumulated wealth and overall welfare of the family, apportioning the gains and losses they made, compensating them for unmet expectations or lost opportunities and misplaced reliance on the strength of assurances about the permanence and stability of the relationship, and providing for their likely future financial needs.

   54.  Economic justice is not a fixed standard. Every case depends on its own unique facts. What is important is to somehow give a reasonable value to all the elements that go to making up the entirety of the marriage relationship. As the Full Court recognised in Ferraro making a crucial comparison between contributions through fundamentally different activities is a difficult undertaking. So too is trying to objectively assess the value of contributions to the welfare, as distinct from the wealth, of the family. The former are vulnerable to undisclosed subjective value judgments and are not readily susceptible to measurement in dollar terms.

   55. Care must therefore be taken not to undervalue the indirect and homemaker contribution of a wife in a marriage of short duration.

   56.  As the Full Court observed in Kennon, there are:

   "...a myriad of matters, large and small, which go to make up that union and differentiate it from more casual transitory relationships. It means sharing the minutiae of family life, support during good and bad times, care and intimacy . . . It - that is, marriage - is an intimate sharing of mutual but diverse talents for . . . joint benefit"......

   63. Property which is not the product (or fruits) of the partnership should be treated as separate property of the one who brought it into the marriage. It is only the joint property (including separate property) which has been improved or preserved during the marriage by joint efforts or, arguably, good fortune, which should be shared though not necessarily equally between the parties. The parties should divide the fruits of the marriage partnership according to effort giving equal weight to the breadwinner and homemaker contributions. However, they should arguably only share in premarital assets to the extent that each has contributed to the maintenance and improvement of them and not otherwise.

   64. In Hirst and Rosen, Nygh J expressed the view that in marriages of short duration (34 months in that case) the focus should be on the actual financial contributions made directly or indirectly to the acquisition or preservation of assets.

   65. The source of this comment was a statement by the Full Court in Wardman and Hudson to the effect that where a marriage is a short one and no question arises of the care and control of children, the question of assessment of the indirect contributions made by the parties becomes less important on the basis that it cannot have the same significance as it does where parties over a long period of time keep house and raise a family.

   66. Thus, in a marriage of no great length a young childless couple who make roughly equal contributions during the marriage and there are no other s 75(2) factors leading to a different result, will usually see a property order made leaving the bulk of the assets remaining with the party contributing them............

   67.  Nonetheless, the duration of a marriage is expressly relevant under par (d ) of subsec 79(4) but may, of course, be highly significant in assessing contributions too, because, as I noted earlier, the shorter the duration of the marriage the more weight may be given to financial, especially initial capital, contributions and less attached to the domestic role….

   69. The difficulty of reflecting substantially disproportionate financial contributions at the beginning of the marriage in orders directed to the division of the property at the end of the marriage is, as the Full Court recognised in Zyk, an acute one. It is ordinarily just and equitable that the differential be treated as significant but cases, such as Crawford, Money and Bremner, emphasise that the disparity may be eroded over time and/or by the contributions of the parties during the course of the marriage. How and to what extent this is done is a difficult problem and one which is not susceptible to precise analysis. That is largely because it depends upon a number of variables, such as the initial difference, the use subsequently made of those assets, whether or not they have increased in value, due to the efforts of the parties, or external forces, the length of the marriage, and the size and impact of other contributions made in the intervening period (cf. Pierce).”

3. The real property owned by the parties jointly was acquired using funds provided by the husband and borrowed funds completely serviced by him.

4. The husband seeks an order that he retain that property and that other assets and liabilities remain with the party in possession of same.

5. The Court is satisfied that orders reflecting that outcome by reason of an assessment of contributions are appropriate having regard to the history of the relationship set out above. The husband has provided all funds during the relationship. The wife none.

Section 75(2) Matters

1. The Court is next required to consider the matters set out in this provision where relevant. The relevant matters are considered below.

2. The husband is aged 34 and does not assert other than good health. The wife is aged 31 and there is no evidence as to her health circumstances, she having absented herself from Australia now for over three years. She did not seek employment whilst in Australia.

3. The husband is a salaried tiler. The wife’s circumstances as to employment are not known nor is there any evidence as to her capacity for employment in Country H or Australia. Otherwise the assets, liabilities and financial resources of the parties are set out above.

4. The husband has a most modest superannuation entitlement.

5. Overall, there should be no adjustment by reason of these factors.

Conclusion

1. The Court is satisfied that orders should be made facilitating the transfer of the Suburb F property to the husband. He should concurrently refinance the existing mortgage to relieve the wife from any liability in regard to same.

2. By reason of the wife’s absence from Australia, the Court will order that the Registrar of the Court sign such documents on behalf of the wife to give effect to the orders.

3. Orders will be made accordingly. 

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 20 December 2013.

Associate:

Date:  20 December 2013